Venkatesaperumal Chetty vs S. Parthasarathy Iyengar

Wallis, J.—In this case, the plaintiff sues to recover damages for breach of contract by the defendant to sell to the plaintiff 25 cases of

artificial synthetic camphor. The cases were taken delivery of by the plaintiff and he alleges that the goods were not according to sample and that

he has been damnified accordingly.

Two issues have been raised--""Were the goods delivered to the plaintiff not according to sample"" and ""are the plaintiffs disentitled from claiming

compensation under Clause 12 of the contract?"" As to the first point, I think there cannot be any doubt at all that the goods were not according to

sample.

Now the next question, which arises is whether the defendant is protected by Clause 12 of his contract with the plaintiff. That clause is very

unfortunately expressed. A great many words would appear to have been added to it without much regard to what they mean or what effect they

were likely to have so that it is not possible to give any definite meaning to a good deal of it. It runs as follows;--""You shall not be responsible for

any damages to or deterioration or diminution in quantity of any of the goods, however caused, whether by theft, chafage, difference, inferiority in

quality, short delivery or any defect whatsoever caused, made or ascertained after we have taken delivery of the goods."" The language is that the

defendant shall not be responsible for any damage to or deterioration or diminution in quantity of any of the goods so that in order to bring the case

within the exception, the defendant must show that there has been damage to the goods or deterioration to the goods or diminution in quantity of

any of the goods. Then it goes on to say: ""However caused whether by theft, chafage, difference, inferiority in quality, short delivery or any defect

whatsoever caused, made or ascertained after we have taken delivery of the goods."" Mr. Srinivasa Iyengar, for the defendant, is anxious to insert

after the word ''chafage'' the words ''or for any'' so that the clause would read ''or for any difference, inferiority in quality, short delivery or any

defect whatsoever caused, made or ascertained after we have taken delivery of the goods. If that construction were made, the words ""or for any

defect caused, made or ascertained after we have taken delivery of the goods"" would be sufficient to cover the cases covered by all the previous

words and they would be merely pleonastic. The words ''or for'' are not in the clause before the word ''difference'' and there is absolutely no

justification in the accepted principles of construction for putting them there. Numerous cases have been cited by Mr. Venketasubba Row as to the

principles which govern the Court in construing documents of this character. As to the way in which stipulations of this kind derogating from the

rights of the parties under the common law should be construed in the cases of vendors and purchasers, he has referred to Seaton v. Mapp 2 Coll.

C.C. 556; 63 Eng. Rep. 859 and Rodger v. Cemptior D'' Escompte Be Paris L.R. 2 P.C. 393; 21 L.T. 33; 38 L.J.P.C. 30 17 W.R. 468; 5

Moore, P.C.538;16 Eng. Rep. 618. Still more germane are the cases of Burtan v. English 12 Q.B.D. 218; 53 L.J.Q.B. 133; 5 Asp. M. 0. 187

and Elderslie Steamship Company v. Borthwick (1905) A.C.93; 74 L.J.K.B. 338 and Nelson Line v. James Nelson (1908) A.C. 16; 77 L.J.K.B.

82; 97 L. T 812; 13 Com. Cas. 104; 10 Asp. M.C. 581; 24 T.L.R. 114 The general principle appears to be that in mercantile documents any one

who wants to make a stipulation derogating from the ordinary law regulating the rights of the parties must do so in clear and unambiguous language.

In the Elderslie Steamship Company''s Case (1905) A.C.93; 74 L.J.K.B. 338; 53 W.R. 401: 10 Aap. M.C. 10 Com. Cas. 109, Lord

Macnaghten says that an ambiguous document is no protection and an ambiguous sentence is no protection and an unintelligible sentence is still less

protection. That case brings us to the observations of Lord Loreburn in the Nelson Line v. James Nelson (1908) A.C. 16; 77 L.J.K.B. 82; 97 L.

T 812; 13 Com. Cas. 104; 10 Asp. M.C. 581; 24 T.L.R. 114. He says, ""In truth, I think, the clause taken as a whole"" and these words apply to

the present clause so ill thought out and expressed that it is not possible to feel sure what the parties intended to stipulate."" The law imposes on ship

owners and equally on vendors certain duties. They may contract themselves out of these duties but unless they prove such a contract the duties

remain and such a contract is not proved by producing language which may mean that and which may mean something different. As Lord

Macnaghten said: ""An ambiguous document is no protection; that is the ground on which I rest my opinion."" Then he finds it useless to call the

attention of commercial men to the risk they run by using confusing and perplexing language in their business documents. Lord Halsbury sums up

the position thus: ""The known condition of the law is that unless protected by protecting clauses, the defendant is liable. He has only put together or

jumbled together a number of phrases to which no legal interpretation can be given and the result is that the state of liability under the law remains

what it was and the defendant is liable."" If any intelligible construction can be put upon this clause, I hold that it relieves the vendor from liability

only in cases of damage to the goods or deterioration of the goods or diminution in quantity of the goods caused by one or the other of the recited

causes. Now there is no evidence in this case of any damage to the goods, of any deterioration of the goods, of any diminution in quantity of the

goods from the time they were shipped. I mean there is no satisfactory evidence. The defendant said something about tin cases having been used

instead of zinc, that they might have caused it. In the first place, it is not shown that tin cases were used; there is some evidence the other way. The

contract under which the cases were disposed of by the plaintiff mentions zinc cases. In any case, I do not hold the defendant to be a scientific

expert of that sort. He is an exceedingly interested witness, his evidence in other respects did not impress me favourably. I am not prepared to

hold, as he might have proved if it were true, that the defect was really due to the camphor being packed in tin cases instead of in zinc cases. It is

very strange that there is no hint or suggestion in the pleadings and the suggestion has made its appearance for the first time today. Therefore, I am

obliged to hold that the 12th clause of the contract is no protection to the defendant.

The only other question that remains is the measure of damages. The evidence is that this artificial and synthetic camphor is of the same quality

as and commands as high a price as Japanese BB camphor and a much higher price than Hongkong crude camphor. The plaintiff has shown that

on the 1st August which was the date of delivery, there was a difference of more than 6 annas on a 1b. between the price of Japanese BB or

synthetic camphor and Hongkong crude camphor and we have the defendant''s own statement, which I do not regard as an exaggeration on

inspection of the sample produced, that the cases actually supplied were worse than Hongkong crude camphor. The only inference, therefore, is

that if this camphor had been sold at once by the plaintiff after taking delivery, it would have realised even a less price and this is distinctly what the

defendant himself says in his letters home. He says that the claim for 6 annas is a very reasonable claim and if the goods were sold, they would

have fetched a much less price. Sitting here as a jury and applying the rule in Mayne on Damages, 8th Edition, page 228 and Jones v. Just L.R. 2

Q.B. 300 I think that the claim for damages at 6 annas per lb. has been made out. I give judgment for Rs. 1,050 with interest at 9 per cent. per

annum from the 1st August 1911 up to this date. The plaintiff will have his costs and further interest at 6 per cent. per annum from this date up to

the date of realization.