The Holland Ceylon Commercial V. Mahuthoom Pillai

1922 Present : Bertram C.J. and Schneider J.

THE HOLLAND CEYLON COMMERCIAL CO. v. MAHUTHOOM PILLAI.

38- D. C. Colombo, 991.

Goods ordered from abroad by a firm of importers for commission- Failure of person ordering to accept delivery-Action for damage- -Mutt action be instituted by foreign shipper?-Repudiation of contract- Is the other party bound to take steps to minimize damages?

The defendant requested the plaintiffs company (a firm of merchants carrying on an import business) to order through their correspondents curtain goods from abroad, and agreed to pay the invoice price, plus a, commission of 8 per cent. The defendant refused to accept delivery of a portion of the goods.

Held, that as the contract was between the plaintiffs company and defendant, plaintiffs company was entitled to sue for damages.
Where one party to an agreement repudiates it, the other is not bound to accept the repudiation. He may stand upon his contract, and hold the other party responsible and wait for the time of performance. If he does this, he is under no obligation to make any attempt to minimize damages. It is only where he elects to treat the repudiation as an immediate breach and to sue upon the contract at once, that it becomes his duty to do his best, to minimize damages.

THE facts are set out in the judgment of the Acting District Judge (K. Balasingham, Esq.): -

Plaintiff is a limited liability company registered at Amsterdam, with a place of business in Colombo as well. On December 17, 1919, defendant requested the plaintiff to import for him fifty cases of Belgian playing cards at 34s. 7d. per gross. Subsequently, on January 5. 1920, the price was fixed at 4ls. 6d. The defendant took delivery of twenty cases in October, 1920, and paid for the same. He would not take delivery of twenty cases in December, 1020. plaintiff sold the lot at defendant's risk, and claims the difference in price as damages from defendant In the first place, defendant says that plaintiff was only an agent and, therefore, cannot sue. He relies on SO N. L .R. 268 in support of this contention. That case does not apply to the facts of this case. The plaintiff, if he was an agent at all, was an agent for an

undisclosed foreign principal, and, as such. can. sue and be sued on the contract. In any case there was no privity of contract between the defendant and any manufacturer. Plaintiff was to import the goods on his ova responsibility, and there is nothing to show that he was not the only person liable to the manufacturers for non-payment .of price. The fact that it was agreed that plaintiff was to get a commission for importing does not make any difference. I answer issues 2, 2A. 3, and 7 in the affirmative. Defendant's next point is that it was agreed at the time when the contract was entered into, that the goods were to be paid for at the rate of exchange prevailing at the date of the indent-ill December, 1919. Neither the indent, nor the order, nor any other document embody this agreement. The plaintiff raises the objection of law that oral evidence is not admissible to prove this alleged agreement. In my opinion, oral evidence is admissible to prove this. It is not proposed to add to or vary the contract,' but merely to explain the meaning to be attached to £. s. d. at a time when exchange was unstable. The defendant says that Mr. Ponnambalam was the canvasser of the plaintiff, and that he made him understand that if he would place a large order of fifty cases the exchange would be booked by the firm and defendant was to pay nothing for booking the exchange. Plaintiff's counsel objected that this is not what defendant relied on in his answer (paragraph 9) and in the issue (4). It is true that in the answer and in the issue it is not alleged that plaintiff undertook to book the exchange, but it is clear that the booking of the exchange was only a means by which plaintiff wa

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