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FERNANDO v. SUBRAMANIAM et al.
NLR23V402
Present : Bertram C.J. and De
Sampayo J.
FERNANDO v. SUBRAMANIAM et al.
46-D. C. Kalutara, 8,386.
Damages-Breach of
contract-Goods sold against defendant-No market for goods at time of breach-Sale
after some time-Claim of difference between contract price and price realized.
Defendant contracted to boy thirty leaguers of arrack, but refused to take
delivery of a portion. The plaintiff gave formal notice that he would sell
against him. The notice expired on July 16. The arrack was sold in September.
The 'plaintiff claimed the difference between the contract price and the price
realized. There was no actual market for arrack in July, and it was difficult to
find purchasers for the arrack in question.
Held, that plaintiff was entitled in the circumstances to the full amount
of the difference in price.
THE
facts appear from the judgment of the District Judge (Allan Beven, Esq.):-
The plaintiff, who is a renter and wholesale dealer in arrack, alleges . that he
entered into a contract with defendants on May 23, 1918, to supply them with 30
leaguers of arrack at Rs. 180 a leaguer, and they agreed to receive the same.
The defendants admit they received 13 leaguers of arrack and paid plaintiff for
the same, but deny that they
entered into any agreement to
accept 30 leaguers from him. In proof of this they produce a writing dated May
23, 1918 (D 1), in which plaintiff promises to supply them with 30 leaguers of
arrack at Rs. 180 per leaguer, but they contend that there" was no obligation on
their part,. either expressed in writing or tacit, to accept the same. But
plaintiff has proved by the witness Sinniah, who acted as broker for defendants,
and introduced first defendant to him at the Council Chamber at the sale of
rents, that he (first defendant) agreed to take 30 leaguers. The same day
Sinniah took plaintiff to Hulftsdorp to get Rs. 2,000 in advance from first
defendant, who said he bad no money, but asked him to come next day. But first
defendant was so anxious to bind plaintiff to his contract that he took the
writing D 1 from him. This document is very cautiously worded, and put no
obligation on defendants to accept the arrack. At that time the arrack market
was rising, but evidently was in a state of fluctuation. On May 27 and June 6
plaintiff delivered 975 gallons, equivalent to 13 leaguers, for which he was paid.
According to Sinniah's evidence, the price of arrack went down after the last
delivery by plaintiff, though plaintiff states it kept between Rs. 180 and Rs.
190 for 16 days after the contract was entered into. The plaintiff states that
defendants would not take the balance arrack, because they had no money at the
time, nor enough vessels to store it. So, even if the price kept steady for 16
days, defendants were not in a position to take delivery.
The first defendant has gone into the witness box to repudiate the contract
which was made with him previously (ride D 1), but second defendant gives as a
reason for not accepting the balance arrack, that it was not quite up to the
standard of the previous instalments delivered. I have no doubt in my mind that
defendants intended taking over all the arrack (30 leaguers), but they were not
in a position to do so for want of vessels and funds. Then they found the market
fatting and repudiated the contract, on the ground that there was no obligation
on them to accept it.
Plaintiffs sent defendants a letter of demand (D 2) on July 8, and received
reply (P 1) repudiating the contract. Plaintiff, thereafter, . sold the arrack
at Re. 106, and is now claiming Rs. 1,600 damages.
I give judgment for plaintiff for Rs. 1,360, with costs.
At the second hearing the District Judge (J. C. W. Book, Esq.) delivered the
following judgment:-
This case is sent back for inquiry as to what was the market price in July,
1918, or rather after July 16. Plaintiff called evidence to show that the price
