ZOYSA v. SAMEEM

112-NLR-NLR-V-24-ZOYSA-v.-SAMEEM.pdf


( 371 )
Present: Ennis and Porter JJ.
ZOYSA v. SAMEEM.
106—D. C. Colombo, 100.Agreement to deliver copra—Only a portion delivered—Is payment Jotdeliveries made condition precedent to right to claim deliveries ofbalance t
To decide whether one party to a contract is relieved from hisfuture performance by the conduct of the other, and whetherpayment of a- previous delivery is not a condition precedent tothe right tc claim subsequent deliveries under the contract, onemust look into all the circumstances of the case.
HE facts are set out in the judgment of the District Judge(M. S. Sbresta, Esq.): —
There were two contracts between the parties, one of September17, 1900, and the otherofOctober 4,1920. Onthe first contract
500 candies had to be delivered of No. 1 quality during September-October and on or before November 15 in equal quantities, paymentagainst each delivery. Itwascontendedthateachinstalment should
have been of about one-thirdof 500 candies,and,.judging from the
wording of the contract which is not, however, free from ambiguity,that contention appears to be sound. If that contention is sound, thedefendant – was not entitled to any payment et all, because he had notdelivered even one-third of 500 candies. If this contention is not sound,nevertheless, in my opinion, the plaintiff has not committed any defaultjustifying the failure of the defendant in delivering the copra whichbe had bound himself to supply.
The first delivery wasonSeptember24.Thereis evidence led
by the plaintiff to the effect that the delay in payment on that deliverywas due to a dispute regarding the quality of the copra delivered.
19821
(372 )
1088.
Zoyaa v,Sameem
The plaintiff says that he paid for the copra, delivered ultimatelyat the instance of his brother. As regards the second delivery whichwas on or about October 11, payment was made on the very next day,and there is evidence of the defendant himself to the efleet that paymentswere all made on receipt of the storekeeper’s receipt, and the receiptfor this delivery is dated October 11.
The payment for the delivery of October 1*2 was made on the sameday. As regards the delivery of October 22, money was on that daydue to the plaintiff from the defendant oft account of copra purchasedby the defendant.
Therefore, correctly speaking, thedefendant couldnot claim
payment on account of that delivery. On October 23 some of thecopra which the defendanthad purchasedwas weighedoutthough
delivery was made later.This explains,according tothelearned
counsel for the plaintiff, and''* the explanation seems to me to be asound one, why the defendant gave a cheque on October 2$ withoutdeducting the copra of November 17 that was not up to quality,which is shown by voucher (P 11) of November 18, 1920, Bigned by theagent of the defendant, and acknowledged by the defendant to begenuine. Particulars of theamount appearon P 11 ontheopposite
page, andaccording tothese particulars the deliveryofthat date was
not uptoquality. OnNovember 18 the paymentwasmade for the
deliveryofthe 17th. P21 shows that there was adeduction made on
accountofthe qualityof the delivery of November17.(P 23) shows
thatthe quality ofthedelivery of November18 wasalso bad, and
(P 22) Bhows the delivery of November 27 was &1bo defective.
Thus it appearsthat on November15, on which date thetimefor
fulfilling the contract expired, there was no default on the part of theplaintiff. Even if it is held that the plaintiff was bound to main*immediate payment, the plaintiff would have been fully justified in*throwing up the contract on November 15. It is to be noted thatno part of the copra due on the second contract was delivered by thatdate, in fact not up to date.
Itwas contendedbythe learned counsel for thedefendant that
the two contracts form one transaction, and that defendant wasentitled to refusetocarry out thesecond contract, becauseofthe
default on the partofthe plaintiff in respect of the first contract. Even
if there had been Buch a default on the part of the plaintiff as regardsthe first contract,itappears to methere is no justificationforthe
failure of defendantto carryoutthe second contract whichwas
embodied in a different document, and did not form part of the sametransaction as the first contract.
Itis evident thatthefault was all on theside ofthe defendant,
who, apparently, was not in a position to supply the copra which hehad contracted to supply. The price of copra was steadily rising asis shown from the fact that his second contract was entered into afortnight later stipulatingthe price as Rs. 120,that isto say, about
Rs. 14 more than the price given on the first contract. There is strongevidence to show that the price of copra continued to rise even afterthe second contract.Evidently,thedefendant found he couldnot,■
without incurring much loss, supply the copra as stipulated in thecontracts. This appears to me the real explanation for the non*delivery of the copra by the defendant.
The total quantity which had to be delivered under the two contractswas 700 candies, and the quantity actually delivered was 96 candies.
There is thus a great- disparity in the quantity delivered, which bearsout the plaintiff's case thatthe defendantwasnot ina position,or
purposely neglected, to deliver the quantity which he had contractedto deliver.
As I have already stated, the plaintiff was entitled after November 15to refuse to receive any more copra from the defendant, because thetime for delivering the copra on the first contract had at (hat datoexpired. This fact must be taken into consideration in decidingwhether the non-payment on account of deliveries of November 1ftand 27 was so great a default on the part of the plainin' »s to justifythe defendant's refusal to supply further copra ….
If there was any delay on the part of the plaintiff id r ,g for thefirst five deliveries, that fault was condoned by the, defendant by hissubsequently having suppliedfurther copra,andit is too late forthe
defendant now to complainof any delayofpayment-in respectof
those deliveries.
Section 30 of the Sales of Goods Ordinance, No. 11 of 1896, makesit clear that delay in payment for any delivery cannot be necessarilymade'a reasonfor therepudiation of the contract.Every case
mustbe decidedon its own merits, and there is the case of Mersey
Steel (C Iron Co. e. Nailer,1 p. S29 of Benjamin on Sales, which, thoughit was delivered before Sales of Goods Act, still appears to be aleading case on the point, and explains how section 30 referred to aboveshould be construed. Therewas no intentionon thepart of.the
plaintiff to repudiate the contracts , in question.
I answer the issues as follows: —
(1) No. I should have said earlier that a few days* delay in makingpayments would not be a breach of the terms of the contract.There isa failureto make payments on accountof the last
two deliveries, butthat failure was justified inthe circum-
stances proved. The quality . of the copra supplied on tholast two days was defective.
Bavxi, K.C. (with him M. B. A. Coder), for the defendant,appellant.
W. Jay aw ardene (with him E. G. P. Jayatileke and Weera-sooriya), for the respondent.
November 6, 1922. Ennis J.—
This was an action for damages which arose in these circumstances.The plaintiff asserted that by a contract df September 17, 1920, thedefendant undertook to deliver 500 candies of copra in the months ofSeptember and October, 1920, at the price of Rs. 106 per candy. Hesays that 96 candies were delivered under this contract; and makes aclaim for damages based on 388 candies not delivered, which he boughtin at Rs. 132.50 per candy. On this contract he claims Rs. 8,085.83.He further says that on a contract entered into in October, 1920,the defendant undertook to deliver before November 30, 200 candiesof No. 1 copra at the price of Rs. 120 per candy and that thedefendant delivered nothing in pursuance of this contract, upon
1 {1882-84) 9 A. C. 434.
(374 )
1088.
•fijOKXS J.
Zoysa v.JSameem
which the plaintiff bought in at Be. 132.50 per candy. He claimsa further Rs, 2,528.12 damages on this contract, making, withinterest in all, the surn of Rs. 10,735.13. The defence was thatthe plaintiff had failed to pay promptly on each delivery. On thefacts the learned Judge has found against the defendant, and heappeals.
On appeal it was pointed out that- the contract stipulated forpayment upon delivery in the one case, and payment against eachdelivery in the other. The defendant put in a document (D 31) toshow when deliveries were made and when payments were made.The learned Judge has analysed this document, and has come to theconclusion that the payments were made within a reasonable time,nnd that, notwithstanding the date of delivery mentioned in the docu-ment (D 11), the storekeeper’s receipts upon which payments are madeappear to have been dated some days after the dates mentioned in D 11,as, for instance, the item “ October 8, a delivery of 141 candies.” Thelearned Judge points out that the delivery was on or about October.11, and that the receipt for the delivery is dated October 11. Thepayment appears to have been made on October 12. Quite apart,however, from the finding of fact tha't the plaintiff made paymentswithiu a reasonable time, it appears that the market was risingagainst the defendant from the time of the contract until thetime when he refused to make any further deliveries. Moreoveras the learned Judge has pointed out, the rule of law as found insection 30 of the Sale of Goods Ordinance, No. 11 of 1896, showstha't the question in each case depends on the terms of the contractand the circumstances of the case whether the breach of contractis a repudiation of the whole contract; and this is in, effect thefinding in Mersey Steel & Iron Co. v. Nailer (supra), in which it wassaid that one must look to the circumstances of the case in order tosay whether one party to the contract is relieved from his futureperformance by the conduct of the other, and that payment ofa previous delivery was not a condition precedent to the right toclaim subsequent deliveries. In the circumstances there is nogood reason to interfere with the judgment appealed from.
One circumstance requires to be mentioned. It appears thatthe plaintiff put in evidence two letters (P 1 and P 2). P 1 is datedOctober 23, 1920, in which he complained of failure on the partof the defendant to make sufficient deliveries under the contracts.The defendant denied the receipt of these letters, and in his turnproduced the press copy book containing the letter D 7, whichhe said had been written to the plaintiff on October 28, 1920, inwhich he complained about delay in payment. The learned Judgehas found that P 1 must be presumed to have been received bythe defendant, and with regard to the defendant’s document(T> 7; he regards it as a fabrication, and made for the purpose ofdefending himself against any action the plaintiff might take.
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It would seem, in any event, that the plaintiff was the first tocomplain, and in view of the state of the market, the probabilitiessupport the plaintiff’s contention, and the finding of the learnedJudge that the default was on the part of the defendant and notof the plaintiff.
I would dismiss the appeal, with costs.
Porter J.—I agree.
Appeal dismissed.
ISO.
Enrol J*
Zoysa v.Sameem