( 480 )
Jayewab-DBNE A.J.
Swami-nathan v.Karunaratne
he was willing to pay Es. 2,800 for the bus in about January orFebruary, 1927, The action was instituted on January 24, 1927.A party to a contract is not bound to make speculative attempts toreduce the damages, nor would be be justified in doing so. Theonus of showing that the damages could be minimized is on theparty asserting it. (Bank of China v. American Trading Co.1 andMichael v. Hart.3)
The defendant has failed to show that the plaintiff could havedone anything to mitigate the damages. On the contrary, thedefendant had taken the bus to the Southern Province and left itthere in a disabled condition. On March 17, 1927, the bus wasat the garage of one Carolishamy at the Weligama junction and thedefendant was unable to bring it to Colombo—according to theletter D 8 of 1st defendant’s Proctor; the plaintiff’s statement inhis plaint that he has not been able to see it at all after May 20,1926, is probably true.
In my opinion the appeal succeeds. The plaintiff is not entitled tojudgment for the instalments that fell due after action filed. Letjudgment be entered for the plaintiff as prayed, with the modificationthat the sum payable by the defendant to the plaintiff will beBs. 2,600, and not Bs. 3,600 as stated in paragraphs (a) and (e) ofthe prayer. The plaintiff is entitled to costs in both Courts.
Driebebg J.—I agree.
Appeal allowed.
1 ((894) A.C. 264, 274
* (1902) 1 K. B. 4S2 G. A.