Banghy Abdul Razack Sahib Khan Sahib Banghy Abdul Khadar Sahib and Co. vs Khandi Row and Another of W.K.A. Rane and Co.

This is a suit for breach of contract between the plaintiffs who are merchants at Ambur and the defendants who were importers of German dyes

to Madras and Tuticorin, entered into on the 25th August 1914 after the outbreak of the war, by which the defendants undertook to deliver certain

casks of dye from the lot to arrive per S.S. Steinturm and certain other casks from what is described as the ""Bombay lot"" meaning the lot imported

by the defendants at Bombay. The contract went on to stipulate for three deliveries of two casks each of the weight and description mentioned:

to be delivered on arrival of other steamers, one lot of two casks to be delivered each time at the abovementioned rate, i.e., Rs. 501-4-0 for each

cask. We are not responsible for the supply of goods if steamers do not come to Madras or Madura.

The evidence shows that the defendants had arranged for consignments by successive steamers, and having regard to this we have no doubt that

what the defendants undertook to deliver was two casks of the required description arriving in the ordinary course in successive steamers

consigned to the defendants at Madras or Tuticorin, the port for Madura. In the case of Tuticorin the ship either touched at Tuticorin or landed the

goods at Colombo for transhipment. One of the steamers, S.S. Barenfels, had left Hamburg and Antwerp before the outbreak of war and,

according to the evidence, should have arrived in Madras about the 17th August, in the ordinary course. On the date of the contract she was

overdue and the defendant says he did not know what had happened to her. She did arrive ultimately in May, 1915, and the first contention of the

learned Advocate-General was that under the contract on the arrival of the S.S. Barenfels the defendants became bound to make delivery, even if

the goods were not on board, citing Hale v. Rawson (1868) 27 L.J. C.P 189. In that case which was an action for failure to deliver tallow, the

defendants had contracted to deliver tallow on the arrival of a certain steamship and it was held that they were not relieved from their obligation,

because it turned out the ship had no tallow on board. Here we think it is clear from the language of Exhibit A and having regard to the course of

business and the stipulation as to the non-arrival of the steamers, that the defendants were only bound to make deliveries out of the lots consigned

to the defendants in the ordinary course of business by the steamers referred to and arriving therein, and that they were not bound to make any

such delivery on the arrival of the steamer without having on board any such goods consigned to the defendants.

This being the interpretation of the contract, as the goods had not arrived before the coming into force of the Proclamation of the 9th

September, 1914, against trading with the enemy, the effect of that Proclamation was to render the further performance of the contract illegal, as it

would admittedly have been impossible for the defendants to take up the goods and pay for them, and to put an end to the contract; Arnhold

Karberg & Co. v. Blythe Green, Jourdain & Co. (1916) 1 K.B. 495.

The case may also be disposed of on another ground. The S.S. Barenfels and her cargo were captured in October, 1914, as Prize of War and

taken into Alexandria for condemnation, and they were subsequently condemned as Prize of War in September, 1915, a condemnation which

related back and divested the owners of the goods as from the date of seizure: The Odessa (1916) A.C. 153, The Zamora (1916) 2 A.C. 77.

Under the contract, as already stated, the defendants were not to be responsible for the supply of goods, if steamers did not come to Madras or

Madura; and these steamers clearly were the ""other steamers"", already mentioned by which the three consignments were coming out. In these

circumstances the capture of the S.S. Barenfels which must have been one of the possibilities contemplated, in our opinion, relieved the defendants

of liability under this clause and put an end to the contract so far as this particular consignment was concerned. And it seems to us immaterial that

some six months later the ship and cargo were sent out to Colombo, Madras and Calcutta by bailees from the Prize Court who landed the goods

in question, which were consigned to Tuticorin, at Colombo and did not forward them by transhipment to the defendants, the consignees at

Tuticorin. There was no certificate of release from the Prize Court in respect of these goods, which at the time were being proceeded against for

condemnation; and the only terms on which the defendants were able to obtain delivery of them was by depositing a sum amounting to twice their

invoice value, and by agreeing that, if the goods were condemned, as happened, this sum should be treated as the sale price paid to the Prize

authorities as vendors. It cannot be said that the defendants were under any obligation to purchase these goods at a greatly enhanced price from

the Prize authorities and make them over to the plaintiff, and we think the plaintiff''s claim in respect of these casks fails.

The case as regards the plaintiff''s other ground of claim on account of the consignment on the S.S. Frimley is even clearer. The evidence, for

there is nothing explicit in the plaint, is that kegs of 16 per cent strength arrived by that ship. The contract being for delivery of kegs of 40 per cent

strength it was for the plaintiff to show that the defendants were in a position to deliver dye such as that described in the contract. We think it is

clear that the plaintiffs have not done so and that the description of the dye on the S.S. Frimley differs in to from the description stipulated for. We

may add that on the evidence the plaintiffs failed entirely to establish that the dye on the S.S. Frimley could be accepted as equivalent to that

referred to in the contract, the only witness who had any practical knowledge of dyeing deposing that dye of 16 per cent strength would not

produce the same quality of colour as that of 40 per cent strength after admixture.

In the result, the appeal fails and is dismissed with costs.