Caruppen Chetty V. Habibhoy

1913 Present: Pereira J. and Ennis J.

CARUPPEN CHETTY et al. v. HABIBHOY.

191-D. C. Colombo, 33,725.

Contract-Repudiation of contract-Promisee may at his option treat whole contract as at an end and sue for all damages, or treat it as subsisting and sue for portion of damages already incurred- Measure of damages-Res judicata.

Defendant, who agreed to supply the plaintiffs with thirty bales of sarees and dhooties per mensem for one year from September 1, 1910, made default in supplying the bales in the months of October and November. Plaintiffs thereupon instituted an action for damages, and recovered damages (Rs. 1,500) for the two months.

Plaintiffs subsequently brought this action to recover damages for the non-delivery of the bales for the following months.

Held, that plaintiffs were not barred from instituting the present action, as plaintiffs had the option (assuming that defendant had repudiated the contract before the first action) of treating the contract as subsisting and claiming damages for each default, or of treating the whole contract as at an end and claiming damages in respect of the whole contract.

Observations by Pereira J. as to damages recoverable in a case of this kind.

AN appeal from a judgment of the Additional District Judge of Colombo (L. Maartensz, Esq.).

In this action the appellant, who is the proprietor of the Ceylon Spinning and Weaving Mills, was sued by the respondents for the recovery of a sum of Rs. 8,700 damages alleged to have been sustained by them in consequence of the failure on the part of the appellant to supply them with certain sarees and dhooties in terms of the contract marked A and dated August 24, 1910, entered into between the respondents and one Thomas Marsden.

This action was for the failure to deliver sarees and dhooties during the eight months January to August, 1911, and there having been a previous action, case No. 31,911 of the District Court of Colombo, on the same contract for failure to supply goods during the months of November and December, 1910, the appellant contended that the judgment and decree in that action (No. 31,911) barred this action. The appellant further contended that Marsden, the so-called manager of these mills in Colombo, had no authority to bind him by a contract for the future supply of the produce of the mills, and that even if he had, the damages claimed were in the circumstances grossly exaggerated and excessive.

The parties went to trial on the following issues: -

(1) Is the defendant entitled to plead Marsden's want of authority to execute the contract of sale by reason of the decree in case No. 31,911?

(2) If not, had Marsden authority to enter into the contract sued on?

(3) Damages.

(4) Is the claim barred by the decree in case No. 31,911 by reason of the provisions of sections 34 and 207 of the Civil Procedure Code ?

The District Judge entered judgment for the plaintiff. The defendant appealed.

R. L. Pereira, for the defendant, appellant.-When case No. 31,911 was instituted the appellant had entirely repudiated the contract sued on. In the first action plaintiffs should have sued for continuing damages. Having failed to do so, they are barred from bringing another action. Counsel cited 11 N. L. R. 348, 1 Bal. 146, 5 N. L. R. 259, 12 Cal. 339.

Marsden had no authority to enter into this contract. In the first action that objection was not waived. In any case it is open to the defendants to raise the objection in this action.

The plaintiffs are not entitled to the damages they claim. They did not endeavour to secure similar goods elsewhere. Similar goods were obtainable from the Carnatic and Buckingham Mills in Madras, and not having attempted to obtain them thence, the respondents were not entitled to their exaggerated claim for damages.

The appellant himself was prepared to sell the goods at Rs. 6 over the contract price. He had sold at that pric

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