N. K. N. Ramier and Bros. vs Durwas J. Subbier and Others

The plaintiff is the appellant. This appeal relates to damages for breach of a contract entered into by the defendant with the plaintiff. The

appellant purchased from Messrs. Ralli Brothers certain yarn bales in December 1917. Out of these he sold 24 bales to the defendant by two

contracts dated 8th and 9th January 1918. Eight bales were delivered, accepted and paid for; and out of the 16 bales it was held that 7 bales were

not according to shipment; and as regards 9 bales that although they were according to shipment the plaintiff has not proved any damages by

reason of the defendant''s breach. Although the appeal was filed with reference to the 16 bales, the appellant''s vakil said that he would argue the

appeal only as regards the 9 bales.

According to the contract the goods had to be paid for and taken delivery of, thirty days after their arrival. They arrived on 20th June and 21st

September 1918. They should have been paid for and taken delivery of on the 20th July and 21st October 1918. The plaintiff did not admittedly

take delivery of these goods and Messrs. Ralli Brothers sold them through Messrs. Dowden & Co. on 23rd May 1919. The contract under which

the plaintiff sold to the defendant goods which he had bought from Messrs. Ralli Brothers contained an express stipulation that all the terms of the

contract between the Ralli Brothers and the plaintiff should be embodied as part of the contract, between the defendant and plaintiff and he was

bound under the contract to pay any loss or damage which the plaintiff could have sustained by reason of the defendant''s breach of the contract so

far as Messrs. Ralli Brothers were concerned. The ground on which the Subordinate Judge has dismissed the claim as regards these bales is that

the sale by Messrs. Ralli Brothers was long after the date of the breach and that at the date of the breach there was no damage because the prices

were rising. This finding is contested by the appellant. There can be little doubt that the date of the breach in law would be 20th July and 21st

October 1918, that is on the expiry of a month after the date, when goods had arrived and notice of arrival was given.

The case of the appellant is that because the contract gave the discretion to sell when Messrs. Ralli Brothers chose, the case is taken out of the

rule of law that a re-sale has to be within a reasonable time after the breach and reference has been made to Benjamin on Sales, latest Edition,

page 854, which refers to Jones v. Gibbons [1853] 8 Ex. 920 and which case is referred to with approval in Pearl Mill Co. v. Ivy Tannery Co.

[1919] 1 K. R. 78 The question how far in Indian Law mere discretion in a contract to sell, if there should be a breach, can override limitation of

reasonable care and reasonable time, is not free from doubt, and we do not think it is necessary to express an opinion on that point in view of the

findings of fact which we have arrived at in this case. The case of the plaintiff rests on two grounds. He says:

Here is a contract of indemnity You agreed to pay me whatever loss I might have sustained by reason of not being able to perform the contract

owing to your breach.

The second case is that

apart from any indemnity, you have broken the contract to take delivery of the goods from me and you must pay me damages incurred by me by

reason of your default.

The short answer to both of these arguments would be that the damages payable by defendant are only in law what plaintiff would be compelled

to pay Messrs. Ralli Brothers. If he chose to pay a claim which Ralli Brothers could not enforce, he cannot claim as against the defendant. The

finding is and there can be little doubt that there was a long delay in the sale by Ralli Brothers which delay was at plaintiff''s instance. He can get a

right of action against defendant only if it is shown that defendant by his conduct or by request wanted the time of the contract to be extended. If

without reference to the defendant, the plaintiff had asked Messrs. Ralli Brothers to extend the time for the performance of the contract, the plaintiff

could not saddle defendant with any damages, if there is a finding that the delay was not reasonable.

There is no evidence in this case worth the name to show that there was any request by the defendant to the plaintiff to extend the time for the

performance of the contract. We find that all the letters written by the plaintiff to the defendant calling on him to perform have not been replied to,

and so far as the evidence goes, except the bare statement of the plaintiff''s agent that the defendant said he would take delivery, there is nothing to

show whether the defendant made any such promise. The fact that no reply was sent to the various demands by the plaintiff, rather suggests that

the defendant did not make any such promise. What is proved against the defendant is that he in turn wrote to his constitutents, letters (printed on

pages 15, 29 and 32 of the printed record) asking them to pay interest as they did not take delivery of the goods and as Messrs. Ralli Brothers

were claiming interest. One answer is that these letters do not refer to the present bales at all and that we think, would be a sufficient answer. We

are also of opinion that the mere fact that the defendants without making any request to the plaintiffs for time just as a matter of caution wrote to

their constitutents to take delivery would not amount to asking for extension of time in the view we take of the case.

We may also state that so far as the pleadings are concerned the plaintiff does not anywhere in his plaint refer to any request for further time and

any extension granted on such request, to justify a re-sale long after the due date.

We are of opinion that the appeal fails and should be dismissed with costs.