Lord Phillimore :-

This is an appeal from a decree of the Chief Court of Lower Burma, reversing the decision of the learned Judge sitting on the Original Side of that Court.

The action was brought for damages for not taking delivery of a quantity of sleepers. The defendant disputed the breach; disputed the regularity of the contractual process necessary for the assessment of damages, and disputed that there were any damages. Both Courts have found that there was a breach and their Lordships do not think it necessary to go further into that matter.

With regard to the contractual assessment of damages, that was to be fixed in a particular manner :-

["It is also agreed that in case the said Shew Bux Baboo fails to take delivery of the timber in time the said A. V. Joseph and Co. will dispose of locally, and the said Shew Bux Baboo will pay the difference in price what the said Company may have suffered."]

In fact, Joseph and Co., put this property up for auction in an apparently regular manner; there was an auctioneer employed; it was advertised; and at the request of the defendants, the auction was postponed, and then held. Very few purchasers came forward; they were not people of much importance, and it is possible, as was shrewdly suspected, that in the end, Joseph and Co., may have bought back a good deal of what was sold. It was no fault of theirs that the auction was not better attended, and it may very well be that if they took such a step, which is only a matter of suspicion, and not of proof, they assisted the defendants because the goods might have been "slaughtered" if they had not intervened, or procured people to intervene.

The learned Judge in the Court of the first instance took an unduly suspicious view of the conduct of Joseph and Co., and said it was their duty to disprove a shadowy charge of fraud and that they had not disproved it, a very unusual method of procedure. The Chief Court on appeal set that right and agreed that Joseph had taken the right course to estimate the damage. But the learned Judges in that Court came to the conclusion that Joseph, the present appellant, the plaintiff, had not proved his damage sufficiently. Now what he had got to do was this : This was a c. i. f. contract with this peculiarity, that the money was to be paid as the goods were inspected and before they were put on board. Therefore, Joseph had for his money, still to provide tonnage and pay freight and pay the insurance; and when he comes to estimate his loss, he has, first of all, on the one side to put the contract price of the amount of timber in question, which was 507 tons, then to add to it the expenses of the auction then to deduct from it what was realised at the auction, and also to deduct from it his necessary expenditure in completing his bargain, which really comes under four heads : the freight, which was the biggest thing, the insurance, the loading charge, and certain port or Customs duties. No doubt he was bound to give some evidence as to what those figures were, and no doubt he did give somewhat shadowy evidence; he said that the freight less rebate was rupees 16 - 8 annas per ton. He was faced with a letter in which he threatened, during the course of the discussion between the parties, the other parties with the penalties which would ensue if they did not take delivery, and in which he, apparently, asserted that freight would run up to the rate of 28 rupees; and he was cross-examined as to whether he had not taken rates in April, 1914, and whether these rates might not have gone up; and one of his witnesses said they might have gone up in September or October. He gave evidence as to the loading; he gave evidence as to the Customs duty. And as to the insurance, he gave evidence that the total combined ordinary maritime risk and war risk - it being questionable whether he would have to pay the war risk - came, in the following February, to 10-16ths per cent. and, in a general way, he implied that this was the rat