1951 Present: Gratiaen J. and Gunasekara J.

SALIH, Appellant, and FERNANDO et al., Respondents

S. C. 258-D. C. Colombo, 17,762/M

Contract-Bailment-Heirloom-Failure of bailee to deliver goods entrusted- Measure of damages-Market value-Sentimental value.

Plaintiffs entrusted certain articles of jewellery to the defendant, who was a jeweller, for the purpose of repairing them. On the failure of the defendant to return the jewellery, the plaintiffs sued him for the recovery of their property or, in the alternative, for compensation for their loss. The action was based on a simple breach of contract.

Held, that, in the absence of any claim based on tort or on a breach of contract accompanied by fraud or deceit, the damages awarded should be confined to the market value of the missing jewellery. No additional sum could be claimed on the ground of the special sentimental importance attaching to the jewellery as a family heirloom.

APPEAL from a judgment of the District Court, Colombo,

Cyril E. S. Perera, with A. M. Ameen, for the defendant appellant.

C. Thiagalingam, K.C., with N. M. de Silva and J. B. M. Fernando for the plaintiffs respondents.

Cur. adv. vult.

February 13, 1951. GRATIAEN J.-

The respondents to this appeal are husband and wife. On the occasion of their marriage in 1937 the second plaintiff received from her father a substantial dowry including certain valuable articles of jewellery which had belonged to her mother. In October, 1945, a brilliant necklace and three gold bangles which formed part of this gift were in need of repairs, and the plaintiffs entrusted them for this purpose to the defendant who was a jeweller. The arrangement was that the work should be completed within 10 days; the plaintiffs called twice at the defendant's shop after the due date, however, but were put off with various excuses and requested to return later. On December 27, 1945, they called again, and on this occasion they were informed that the jewellery had been lost. The circumstances relating to the disappearance of these valuable articles were wrapt in mystery, and it is not at all surprising that the learned District Judge took the view, which I share, that the defendant's conduct in the matter is open to very grave suspicion.

The defendant was at all relevant times carrying on his activities as a jeweller under the registered business name of " A. Ahamad and Company" at premises No. 167, Main Street, Pettah. Having lost their jewellery in 1945, the plaintiffs spent the greater part of the next year in a fruitless search for the person (or persons) whom they could run to earth as the proprietor of the particular firm of " A. Ahamed and Company " who was legally responsible to them for what had taken place. They commenced an abortive litigation against four persons (relatives of the defendant) who were registered as the proprietors of a different business carried on under the trade name of " A. Ahamed and Company" on the same premises. In due course, on March 21, 1947, they sued the proper party in these proceedings for the recovery of their property or, in the alternative, for the recovery of a sum of Rs. 15,000 as damages which they estimated to be the measure of their loss. The defendant filed an answer denying liability on grounds which he failed to substantiate at the trial. The jewellery entrusted to him was not forthcoming, and in consequence the only serious issue which arose for the adjudication of the learned District Judge was as to the sum which should be awarded to the plaintiffs as compensations for their loss.

On March 23, 1948, the learned District Judge entered judgment in favour of the defendants for a sum of Rs. 11,500 representing (a) Rs. 10,260, which he estimated to be the market value of the missing-jewellery in trusted to the defendant, (b) Rs. 1,240 as damages for the pain of mind which was undoubtedly occasioned by the los