Judgement

Appeal (No. 75 of 1921) from a judgment and decree of the High Court in its appellate jurisdiction (November 17, 1919) affirming a decree of Macleod C.J. (June 19, 1919).

The suit was brought by the appellant firm against the respondent firm to recover damages for the respondents failure to deliver under a written contract, dated November 26, 1917, for the sale of 864 bales of dhotis. The material facts appear from the judgment of the Judicial Committee; the terms of the contract appear more fully from a report at I. L. R. 44 B. 907 of the proceedings in the High Court.

The trial judge (Macleod C.J.) dismissed the suit, and that decision was affirmed on appeal by Heaton and Marten JJ. The grounds of their judgments appear shortly from the judgment of the Judicial Committee, and fully from the report above referred to.

1922. Nov. 6. Upjohn K.C. E. B. Raikes and S. C. Chaudhuri for the appellants.

MacKinnon K.C. and Porter for the respondents.

Dec. 20. The judgment of their Lordships was delivered by

LORD SUMNER. Though there is some difference between the various texts of the agreement, on which this action was brought, there is no doubt as to its substantial terms. It is an agreement for the sale of future goods, to be manufactured at and obtained from named mills. It provides for the quantity and descriptions of these goods, for the prices at which the different descriptions are sold, and -for the time and rate of delivery. To some minor and independent provisions and to the fact that some of the words are interlineated, no importance attaches. The agreement is simple and of a common type, and the whole question in dispute is whether it is an absolute contract to deliver the whole of the goods mentioned or whether the sellers are relieved from their obligation to deliver a part of them in the events which happened.

In the text adopted by the Courts below the provision as to delivery, after the words which complete the description of the goods—namely, “ goods under manufacture are sold," runs as follows "the same are to be taken delivery of as and when the same may be received from the mills. Delivery is to be cause to be given in full by December 31 in the year 1918." An endeavour was made in argument to treat these words as a further part of the description of the subject-matter of the contract, so as to confine the goods to such as might be received from the mills during the remainder of the year 1918. In their Lordships opinion this attempt failed. The goods to be manufactured are already very elaborately described, and the goods which are to be delivered are the 864 bales so described. It was also suggested that the words "as and when same may be received from the mills" should be construed, as if they were "if and when the same may be received from the mills." This is to convert words, which fix the quantities and times for deliveries by instalments into a condition precedent to the obligation to deliver at all, and virtually makes a new contract. The words certainly regulate the manner of performance, but they do not reduce the fixed quantity sold to a mere maximum, or limit the sale to such goods, not exceeding 864 bales, as the mills might deliver to the defendants during the remainder of the year.

If the contract is for a fixed quantity and, as was the case less than that quantity was delivered within the time fixed, the sellers must either find in the contract some matter of excuse or discharge, or they must pay damages.

The High Court of Bombay found this excuse in the fact that the mills failed to perform their contract to manufacture and deliver the goods to the respondents in the circumstances of the case. As a matter of fact the mills remained in existence and at work, and the looms which could otherwise have manufactured goods deliverable under this contract were fully occupied in making goods for the Government of India. The utmost that the evidence on this point amounts to is to be found in the fol