Vaitalingham V. Holland Colombo Trading Society

1932 Present : Akbar J. and Jayewardene A.J.

VAITALINGHAM v. HOLLAND-COLOMBO
TRADING SOCIETY.

185-D. C. (Inty.) Colombo, 41,358.

Contract-Sale of goods-Agreement to indent for goods-Terms of indent--Exemption from liability to damages.

The defendant agreed to order and import for the plaintiff certain goods on account and risk of the plaintiff on the terms stated in an indent, and the plaintiff agreed to take delivery of the goods which may be delivered from the vessel on arrival and to pay the defendant the price mentioned together with his commission, the freight, and the other charges.

Clause 10 of the indent was as follows :-

" If the goods are not ready for shipment on the terms herein contained, I/we shall be at liberty to cancel or allow later shipment but on no account shall I/we be entitled to compensation for late delivery or nondelivery from this or any other cause whatsoever."

Held, that the defendant was not protected from liability by clause 10 of the indent, if he failed to deliver goods which had arrived in terms of the indent.

IN this action the plaintiff sued the defendant to recover a sum of Rs. 1,501.28 as damages by reason of defendant's failure to deliver 894 barrels of cement in terms of an indent entered into between the parties.

The defendant denied his liability and pleaded that it was expressly agreed under the indent that the plaintiff should not be entitled to compensation for non-delivery of the cement from any cause whatsoever.

The learned District Judge held that the action was maintainable.

H. V. Perera (with him E. F. N. Gratiaen), for defendant-appellant.- The plaintiff cannot maintain this action for non-delivery of the goods. Clause 10 of the indent stipulates that the plaintiff shall on no account be entitled to compensation for late delivery or non-delivery from the particular cause specified or from "any other cause whatsoever". The words " any other cause whatsoever" have been interpreted to exclude limitation or qualification (Duck v. Bates [1 (1884) 53 L. J. Q. B. 338, p. 394. ] ). The 'words exclude the principle of eiusdem generis, and embrace any cause which the defendant considers a reasonable ground for refusal to deliver. Under clause 10 the defendant is constituted the sole judge as to the sufficiency of the Reason for non-delivery (Sun Insurance v. Hart [2 (1889) 58 L. J. P. S. 69.] ).

The learned District Judge has erred in restricting the scope of clause 10 to cases where the defendant is unable to deliver. In contracts of " sales to arrive", the seller is in any event not liable for non-delivery if the goods do not arrive by vessel (Benjamin on Sale, 7th ed., p. 608).

[JAYEWARDENE A.J.-Is not the contract between the parties a contract of agency rather than of sale ?|

It is submitted that the contract is really one in terms of which the plaintiff agrees to purchase the goods in terms of his indent, while "the defendant merely agrees to be bound by the purchase price mentioned in the indent if and when he chooses to sell the goods to the plaintiff (vide " The Queen v. Demers"'). There is nothing in the document to indicate that the defendant has entered into an unequivocal agreement to sell. He is therefore under no legal obligation to deliver the goods in terms of the indent, and clause 10 would appear to have been inserted in order to place the matter beyond doubt.

Even if the contract is one of agency, there is nothing to prevent a principal from contracting himself out of his normal rights ("Griffiths v. Earl of Dudley" 2).

N. Nadarajah, for plaintiff-respondent.-The words " any cause whatsoever", should be interpreted " eiusdem generis", with the. causes set out in clause 10 of the indent. The " eiusdem generis" rule is applicable to contracts as well as statutes. (Chitty on Contracts, p. 104, 16 C. B. N. S. 678.)

Even if the words are wide enough, they are

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