Lord Morton of Henryton-

This is an appeal from a judgment and decree of the High Court of Judicature at Fort William in Bengal in its civil appellate jurisdiction, dated 27 - 3 - 1945, reversing a judgment and decree of the same Court in its ordinary original civil jurisdiction, dated 14th January 1943. The appeal arises out of an action by the respondent company against the appellant firm claiming damages for breach of a contract for the supply of tin.

[2] It is necessary to set out the proceedings in the Courts in India in some detail, as the findings of fact by the learned trial Judge, and the attitude adopted by the appellant firm in regard to these findings of fact, are of great importance. The learned trial Judge (McNair J. stated the events leading up to the action as follows :

"The plaintiff company sue the defendant firm to damages for breach of contract for the supply of tin On 8 - 12 - 1941 there was a telephone conversation between N. T. Shaha of the plaintiff company and Ran choredas of the defendant firm in which the plaintiff company made known their requirements and the defendant firm contracted to supply them.

Later the same day the plaintiff company wrote to the defendant firm :

'Dear Sirs,

Tin

We confirm having purchased from you to day tin it blocks, Penang quality, for forward delivery as follows:

35 tons at Rs. 215/8/ - per cwt. net. 5 tons at Rs. 218/ - per cwt. net. Our delivery instructions will follow."

The parties are both merchants of standing. They had had previous dealings in various commodities, and from March until September 1941 they had had business transactions in tin totalling some 28 tons.

It appears that the plaintiff company had contracts with the Government for the supply of tinned article; to the Supply Department, and there is every reason to believe that the plaintiff company were purchasing tin on this occasion for use in their factories in execution of their contracts with the Government

On 7 - 12 - 1941 the Japanese attacked Pearl Harbour and early on the 8th December it was known in Calcutta that a state of war existed between Japan, Great Britain and the United States of America.

That morning Mr. H. K. Shab, Managing Director of the plaintiff company instructed Mr. N. T. Shaha, Assistant Secretary of the company, who is in charge of the plaintiff's business in Calcutta to buy 25 tons of tin and Mr. N. T. Shaba telephoned to Mr. Ranohoredas, a partner in the defendant firm. Ranchoredas stated that the market rate was Rs. 216/ - a cwt. He stated further that he would refer to his elder brother, Goberdhone Das, who might be able to give a slightly lower quotation, N. T. Shaha referred to H. K. Shaha and the deal with regard to 25 tons was put through with Ranchoredas at Rs. 216/ - subject to any better price which might be given by Goberdhone. Goberdhone reduced the price to Rs. 215 - 8 - 0 and that is the price mentioned in the confirmatory letter.

The plaintiff company soon after booked another 10 tons at the same price and about a couple of hours later they decided to buy a further 5 tons which they got at Rs. 218/ - as the market had been rising throughout the day. It is in evidence that the opening rate on the 8th December was Rs. 205 or Rs. 206 and the closing rate was about Rs. 227.

These facts are undisputed. The plaintiff company however allege that during the preliminary conversation they informed the defendant firm that they were purchasing in order to fulfil Government contracts, that they wanted to cover themselve absolutely against their requirements of tin, and that they insisted that tin should be delivered to them under all circumstances. They state further that Mr. Rauchoredas agreed to those conditions and said that he would deliver goods from ample stocks always at his firm's disposal. These statements and alleged conditions are denied by the defendant firm.

The market, as I have said, was on the 8th December a rising market, and it continued to rise during the following days