Mendis & Co. V. The Holland Ceylon Commercial Co.

1921 Present: Schneider A.J.

MENDIS & CO. v. THE HOLLAND CEYLON
 COMMERCIAL CO.

151-C. R. Colombo, 76,844.

Sale of goods-Agreement to sell a certain quantity at a specified price- Agreement of seller with another person to supply the required quantity at a lower price-Refusal of buyer to accept Measure of damages

Plaintiff entered into a contract -with defendants to Sell and deliver a certain quantity of desiccated coconuts at 27 1/2 cents a pound. To cover Ms contract with defendants the plaintiff purchased from F at 19 cents a pound the quantity required. The defendants refused to take delivery of 2,730 pounds when F tendered the same. F refused to deliver the rejected quantity to the plaintiff. The plaintiff sought to recover from defendants as damages a sum of Rs. 232-05, being the profit which he might have made had the defendant not broken the contract

Held, that the measure of damages is governed by section 48 (3) of the Sale of Goods Ordinance of 1896. The fact that plaintiff did not have the goods with him (owing' to the refusal of 35" to deliver them to him), and that plaintiff could not, therefore, have re-sold the goods, did not render section 48 inapplicable.

THE facts appear from the judgment.

H. H. Bartholomeusz, for defendants, appellants.

Samarawickreme, for plaintiff, respondent.

October 18,1921. SCHNEIDER A.J.

By a contract in writing dated March 25, 1920, the plaintiff sold to the defendants at the rate of 27 1/2 cents per pound 200 cases of desiccated coconut, each case to contain 130 pounds. Delivery was to be made during the months of April and May, and, to be completed by May 20. To cover his contract with the defendants the plaintiff purchased from Messrs. Fradd & Co. at 19 cents per pound the same quantity of the goods as that which he had sold to the defendants. He stood, therefore, to make a profit of 8 1/2 cents per pound. The defendants wrongfully refused to take delivery of 21 cases, containing 2,730 pounds, of the goods sold to them. For this breach of their contract the plaintiff in. this action sought to recover a sum of Rs. 232.05, or the profit which he might have made had the defendants not broken their contract. In their answer the defendants pleaded that the damaged which the plaintiff was entitled to claim should not exceed Rs. 91. It is impossible from the answer to collect upon what basis this sum had been arrived at. Having regard to the pleadings alone, it is quite evident that the parties were at issue as to what should be the measure of damages ; and that the plaintiff claimed as damages the profit he might have made, and the defendants resisted this claim without pleading what should be the measure of the damages. The issue framed was what damage has the plaintiff suffered ? In my opinion the issues should have been :-

(1) What should be the measure of damages ?

(2) What sum is the plaintiff entitled to as damages ?

The learned Commissioner gave judgment for the plaintiff for the sum claimed by, him, bat not as loss of profit as claimed in the plaint. He thought that section 48 of the Sale of Goods Ordinance, No. 11 of 1896, had no application, inasmuch as the plaintiff had no opportunity of selling the 21 cases of desiccated coconut in the open market, because Messrs. Fradd & Co. refused to deliver them to the plaintiff himself in consequence of the refusal to accept on the part of the defendants.

On appeal, Mr, Bartholomeusz, for the defendants-appellants, contended that the measure of the damages is governed by the provisions of section 48 (3) of the Bale of Goods Ordinance of 1896. This contention appears to me to be right. I am unable to agree with the learned Commissioner that section 48 does not apply because the plaintiff did not have the goods, and therefore could not re-sell them and thereby mitigate the damages.

It is true that Messrs. Fradd & Co. refused

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