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RAWANNA & Co. v. ARUNACHAPILLAI
NLR47V220
1946 Present: HOWARD C.J. and
de Silva J.
RAWANNA & CO., Appellant, and ARUNACHAPILLAI,
Respondent.
285-D. C. Colombo, 14,064.
Sale of goods-Buyer?s liability
for non-acceptance of delivery-Quantum of proof necessary on seller?s part -Sale
of Goods Ordinance (Cap.70), s.37.
Before a buyer can be held liable to the seller for any loss
occasioned by his refusal to take delivery of goods sold there should be
evidence that the seller was ready and willing to deliver the goods and that he
requested the buyer to take delivery.
APPEAL
from a judgment of the District Judge of Colombo.
N.Nadarajah, K. C. (with him C. Renganathan ),
for the plaintiff, appellant.
H. V. Perera, K. C. (with him N. Kumarasingham ),
for the defendant, respondent.
Cur. adv. vult.
May 29,1946. HOWARD C.J.-
This is an appeal by the plaintiff from an order of the
District Judge of Colombo dismissing the plaintiff?s claim and entering judgment
in a sum of Rs.25 with costs on Court of Requests scale on the defendant?s claim
in reconvention. The plaintiff claimed a sum of Rs802.50 of which Rs.100 was
alleged to have been given as an advance against the price of 600 bushels of
kurakkan which the defendants sold to the plaintiff by a contract in writing
dated March 24,1942.The remaining Rs.702.50 was claimed as damages for
non-delivery of 563 bushels. The contract is contained in the document P 1 and
with regards to the time of performance it states ? delivery on or before April
7?. The plaintiff in his evidence stated that on April 6 he asked for the whole
quantity, but was told that only 38 bushels could be spared that day. On April 7
he, therefore, took delivery of 38 bushels on the promise of the defendants to
give the balance in a day or two. Plaintiff delivered the 38 bushels to one
Marker who was the person who had bought from him. The plaintiff also states
that on April 7 he had made up his mind to go to India. On the 8th he endorsed
the contract P 1 asking the defendants to deliver the kurakkan to Marker. He
also says that the defendants agreed to deliver to Marker within 4 or 5 days. On
April 8 the plaintiff went to India and did not return until June. Mr. D. H.
Marker who describes himself as a Commission Agent and Merchant gave evidence in
support of the case put forward by the plaintiff. He states that the plaintiff
on April 7 delivered the 38 bushels of kurakkan to him and handed the contract
for the remaining 562 bushels. He also says that he wanted kurakkan in April and
was prepared to take over the whole of the 562 bushels. He sent on April 7 and
several times to the defendants to fetch the 562 bushels, but the latter kept
putting him off. When this kurakkan was not delivered he sent a telegram dated
May 11, 1942,(P 7) to the plaintiff in India informing the latter that the
defendants were not supplying kurakkan on the contract and asking for
instructions to buy on plaintiff?s account. On June 22,1942, the plaintiff?s
proctor by P9 wrote to the defendants requesting delivery of the 562 bushels of
kurakkan and claiming damages in default of such delivery. By P 10 the
defendants? proctor replied to P 9 and stated that the defendants were ready and
willing to deliver on the due date but the plaintiff refused to take delivery
though requested to do so. In consequence of such failure to take delivery it
was maintained that the defendants were compelled to sell the kurakkan below the
price at which the plaintiff had agreed to purchase. The defendants had
therefore suffered damages for which the plaintiff was held liable.
The learned District Judge seems to have experienced
considerable difficulty in arriving at his verdict. He has found that the
plaintiff failed to take delivery of the balance of 563 bushels. At the same
time he finds that the defendants had no stocks to deliver. The learned Judge,
therefore, thinks that the defendants are only entitled to nom
