Lallyett V. Negris & Co

Present: Middleton J.   July.10,1911

LALLYETT v. NEGRIS & CO.

211-C. R. Nuwara Eliya, 5,052.

Jurisdiction-Order from Nuwara Eliya to Colombo for hams-Hams sent V. P. P.-Contract entered into in Colombo-Action for breach of contract-Nuwara Eliya Court has no jurisdiction-Civil-Procedure Code, s. 9.

The defendants advertised hams for sale, and the plaintiff by letter posted at Nuwara Eliya placed an order with them for three hams, which were despatched by value-payable post to Nuwara Eliya, and duly received and paid for. The plaintiff, alleging that the hams were unfit for human consumption, sued defendants at the Court of requests of Nuwara Eliya to recover Rs. 40.53 as damages for breach of contract.

Held, the Court of Requests of Nuwara Eliya had no jurisdiction to try the case. The contract was made in Colombo.

THE facts of this case are fully set out by Middleton J. in his judgment as follows: -

" This was an action by the plaintiff, who resides in Nuwara Eliya, against the defendants, who carry on business in Colombo, to recover Rs. 40.53 as damages for breach of contract in delivering three hams alleged to be unfit for human consumption, and for a second cause of action for the same amount as money payable by the defendant to the plaintiff for money received at Nuwara Eliya for the use of the plaintiff.

" The plaint averred that the defendants advertised hams for sale. and that in consequence plaintiff, by letter posted at Nuwara Eliya placed an order with them for three hams, which were despatched by value-payable post to Nuwara Eliya, and duly received and paid for, including carriage, by the plaintiff, and having been cooked were found unfit for human food,

" The defendant pleaded to the jurisdiction of the Nuwara Eliya Court., and the Commissioner of Requests upheld the plea under section 9 of the Civil Procedure Code and dismissed the action, holding that the contract sought to be enforced was made in Colombo that the cause of action arose- there, and that claim for carriage and packing, &c. was so entirely subsidiary to the first cause of action as to be included in it."

The plaintiff appealed.

J.' W. Silva (with him Canakaratne), for the plaintiff, appellant.-

The contract was entered into at Nuwara Eliya, and not in Colombo.

The offer on the part of the defendant was the advertisement. The acceptance of the plaintiff was the letter ordering the hams. The letter was posted at Nuwara Eliya. The acceptance was therefore at Nuwara Eliya. Counsel cited Carlile v. Carbolic Smoke Ball Co.,1 Anson, 45, 26.

The delivery of the hams in Colombo to the carrier was not delivery to the plaintiff under section 31 of the Sale of Goods Ordinance, as the defendants sent the hams by value-payable parcel, and delivery was on payment only at Nuwara Eliya. The cause of action, therefore, arose at Nuwara Eliya.

Bartholomeusz, for the defendants, respondents.-The offer in this case consisted in the plaintiff's letter to defendants, and the acceptance consisted in the conduct of the defendants in sending up the hams in terms of the order. The delivery of the hams was in Colombo. Delivery to the carrier was delivery to the plaintiff.

Silva, in reply.

Cur. adv. vult.

July 10, 1911. Middleton J.-

His Lordship set out the facts, and continued: -

In my opinion the Commissioner was right. There is no evidence on the record to show what the terms of the advertisement were, and in the absence of these I should deem it merely an invitation to do business, like the issue of a bookseller's catalogue, not an offer intended to create, and capable of creating, legal obligations. Carlile v. Carbolic Smoke Ball Co.1 does not therefore apply.

It could hardly be said that after defendants had run out of the hams they advertised, that the plaintiff by ordering some had laid the defendants under a contractual obligation to supply the number ordered, or that the defendants were bound to

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