Present : Bertram C.J. and Schneider J,

ADAMJEE LUKMANJEE v. FRADD & CO.

62-D. C. Colombo, 488.

Contract-Agreement to deliver oil f.o.b. at a fixed price-Payment against mate's receipts-In the event of shipment being hindered by the buyer, payment to be not later than three days after notice that oil was ready for shipment-Duty of buyer to nominate steamer within reasonable time.

"'he defendant agreed to deliver in December, 1920, 100 tons of oil in pipes in good merchantable condition. The price was fixed f.o.b. Payment was to be against mate's receipts, but in the event of shipment being in any way hindered by the buyer, payment was to be not later than three days after notice was given to the buyer that oil was ready for shipment.

Held, that as the contract was that delivery shall be made within a certain time f.o.b., it was implied that the buyer will nominate a steamer on board which the delivery was to be made, and that the nomination shall be given within a reasonable time so as to allow of the goods being put into a deliverable state.

Held, further, that the clause as to payment did not render it necessary for. the defendants to put the oil into a deliverable state before the expiration of December 31, and to put it at defendants disposal before that time, if the buyer had failed to give reasonable notice of the steamer for shipment.

THE facts appear from the judgment.

Drieberg, K.C. (with him F. H. B. Koch, M. W. H. de Silva, and Garvin), for appellants.

Hayley (with him Loot), for respondent.

September 20, 1922. BERTRAM C.J.-

This is an action for the recovery of Rs. 6,500 as damages alleged to have been sustained by reason of the wrongful failure of the defendants to provide freight, or to give due notice for the delivery, or to take delivery of 100 tons of coconut oil ordered by the defendants from the plaintiff.

I am unable to see that the appellants have made out any case. Defendants ordered from plaintiff 100 tons of oil for delivery in the course of the month of December. The contract provided that the oil should be in pipes with small packages as customary to suit stowage; delivery was to be made in December, 1920, in good merchantable condition, and the price was fixed f.o.b. The plaintiff,

therefore, was under an obligation to deliver the oil, packed in the manner described, on board the steamer. Defendants were given
to understand that the oil would be ready towards the end of the month. Acting on this understanding, they made provisional arrangements for freight, and the steamer, by which they expected to ship the oil, was due on the 31st. On the 31st or the 1st the defendants received an invoice indicating that the goods were at their disposal. No nomination of any steamer was, in fact, given by the defendants to the plaintiff until January 1st, and it is obvious, to say the least, that it would be extremely difficult for the oil to be put in a state to enable it to be delivered on a steamer at such short notice as these facts would imply. Every effort was made by the defendants to get the oil shipped by the steamer. Their original arrangements had been provisional, but, on receiving the invoice dated December 31, they booked freight definitely. But the oil was, in fact, not ready for shipment until January 2, and by that time the steamer had sailed. The oil had been inspected by the defendants' Manager, but at that time it was not packed in the manner provided for by the contract, but was in various receptacles ready for inspection. The arrangements for shipping the oil having thus broken down, defendants refused to accept the oil as a delivery under the December contract, and this action was brought to enforce the claim of the defendants.

Before considering the law on the subject, it may be well to say a few words on the facts. The defendants were no doubt naturally annoyed that their arrangements for shipping the oi