Amarasuriya V. Don Elaris

1944 Present: Howard C.J. and Wijeyewardene J.

AMARASURIYA, Appellant, and DON ELARIS, Respondent.

14-D. C. Colombo, 13,454.

Contract-Sale of chests for immediate delivery-Agreement for postponement of delivery-No variation of contract-Measure of damages.

The plaintiff bought of the defendant five thousand chests on contract notes dated June 11, 1941, and June 30, 1941, delivery of the chests to be immediate.

On plaintiff's request for delivery within the period of the contract, the defendant asked for an extension of the time of delivery and the plaintiff agreed to a postponement of delivery till September, 1941.

Held (in an action by plaintiff for damages for breach of contract), that the original contract was unaltered and that the new arrangement with regard to delivery had reference' only to the mode of performing it.

Held, further, that the plaintiff was entitled to damages assessed on the basis of the difference between the contract price and the market price in September, 1941.

APPEAL from a judgment of the District Judge of Colombo.

C. Thiagalingam (with him E. F. N. Gratiaen), for the defendant, appellant.

H. V. Perera, K. C (with him N. M. de Silva and R. N. Illangakoon), for the plaintiff, respondent.

Cur. adv. vult.

October 18, 1944. HOWARD C.J.- :

The defendant in this case appeals from the judgment of the Additional District Judge, Colombo, ordering him to pay the plaintiff the sum of that the mortgage decree referred to a building with "a tagaram roof"

Rs. 6,149.50 and costs and dismissing his claim in reconvention. The plaintiff brought his action on two contracts dated June 11, 1941, and June 30, 1941. These contracts were contained in two notes "P 1" and "P 2", signed by the defendant, and are as follows:-
 

"P 1

Don Elaris & Son.

24, Alston Place,
Cinnamon Gardens,
Colombo, 11th June, 1941.

B. Amarasuriya & Co.,
Foster Lane,
Maradana.

Dear Sirs,

With reference to the writer's telephone conversation with your Mr. B. Amarasuriya this afternoon, we confirm the sale of 5,000 No.1 Full Chests @ Rs. 2.25/each (Five thousand) Immediate delivery.

Please confirm.

Yours faithfully,
DON ELARIS & SON,
Sgd. (Illegible)."

"P 2

Don Elaris & Son.

24, Alston Place,
Cinnamon Gardens,
Colombo, 11th June, 1941.

Messrs. B. Amarasuriya & Co.,
Foster Lane,
Colombo.

Dear Sirs,

With reference to your Mr. B. Amarasuriya's telephone conversation with the writer, we confirm the sale of 5,000 (Five thousand) New Momi Full Chests in shooks, No. 1 Qty @ Rs.2.25 each immediate delivery.

Yours faithfully,
DON ELARIS & SON,
Sgd. (Illegible)."

The defendant delivered 2,250 of the 10,000 new Momi Chests to be supplied under the two contracts, and the plaintiff has brought this action claiming damages for the failure of the defendant to deliver the remaining 7.750 chests. In finding in favour of the plaintiff the learned Judge has held that the defendant in breach of contract failed to deliver 7,750 chests and, so far as damages are concerned, the plaintiff is entitled to claim the difference between the contract price of the chests, price Rs.2.25, and the market price in September Rs.3.75. Giving the defendant credit in Rs.5,762.50 the value of the 2,250 chests delivered, and Rs. 413, value of goods supplied, he finds that there is a sum of Rs. 6,149.50 due to the plaintiff. The defendant in reconvention claimed the sum of Rs. 5,475.50 the value of the 2,250 chests, supplied under the contract.

The facts with regard to the delivery of the chests under the contracts are as follows: On June 11, 1941, the day of the first contract, the plaintiff wrote P 3 asking the defendant to deliver the 5,000 chests. According to the plaintiff no chests were sent to him on that delivery order. The receipt of this delivery order was admitted by .the defendant's Counsel. A further delivery order "P 4" was sent to the defendant on July 7, 1941. The plaintiff is unabl

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