Present : Ennis and Porter JJ, 1922

ZOYSA v. SAMEEM.

106-D. C. Colombo, 100.

Agreement to deliver copra-Only a portion delivered-Is payment for deliveries made condition precedent to right to claim deliveries of balance ?

To decide whether one party to a contract is relieved from his future performance by the conduct of the other, and whether payment of a previous delivery is not a condition precedent to the right to claim subsequent deliveries under the contract, one must look into all the circumstances of the case.

THE facts are set out in the judgment of the District Judge (M. S. Shresta, Esq.):-.

There were two contracts between the parties, one of September 17, 1920, and the other of October 4, 1920. On the first contract 500 candies had to be delivered of No. 1 quality during September- October and on or before November 15 in equal quantities, payment against each delivery. It was coutended that each installment should have been of about one-third of 500 candies, and, judging from the wording of the contract which is not, however, free from ambiguity, that contention appears to be sound. If that contention is sound, the defendant was not entitled to any payment at all, because he had not delivered even one-third of 500 candies. If this contention is not sound, nevertheless, in my opinion, the plaintiff has not committed any default justifying the failure of the defendant in delivering (he copra which he had bound himself to supply. 

The first delivery was on September 24. There is evidence led by the plaintiff to the effect that the delay in payment on that delivery was due to a dispute regarding the quality of the copra delivered.

The plaintiff says that he paid for the copra, delivered ultimately at the instance of his brother. As regards the second delivery which was on or about October 11, payment wag made on the very next day, and there is evidence of the defendant himself to the effect that payments were all" made on receipt of the storekeeper's receipt, and the receipt for this delivery is dated October 11.

The payment for the delivery of October 12 was made on the same day. As regards the delivery of October '22, money was on that day due to the plaintiff from the defendant on account of copra purchased by the defendant.

Therefore, correctly speaking, the defendant. could not claim payment on account of that delivery. On October 23 some of the copra which the defendant had purchased was weighed out though delivery wan made later. This explains, according to the learned counsel for the plaintiff, and the explanation seems to me to be a sound one, why the defendant gave a cheque on October 25 without deducting the copra of November 17 that was not up to quality, which is shown by voucher (P 11) of November 18, 1920, signed by the agent of the defendant, and acknowledged by the defendant to be genuine. Particulars of the amount appear on P 11 en the opposite page, and according to these particulars the delivery of that date was not up to quality. On November 18 the payment was made for the delivery of the 17th. P 21 shows that there was a deduction made on account of the quality of the delivery of November 17. (P 23) shows that the quality of the delivery of November 18 was also bad, and (P 32) shows the delivery of November 27 was also defective.

Thus it appears that on November 15, on which date the time for fulfilling the contract expired, there was no default on the part of the plaintiff. Even if it is held that the plaintiff was bound to make immediate payment, the plaintiff would have been fully justified in-throwing up the contract on November 15. It is to be noted that no part of the copra due on the second contract was delivered by that date, in fact not up to date.

It was contended by the learned counsel for the defendant that the two contracts form one transaction, and that defendant was entitled to refuse to carry out the second contract