Norman Macleod, Kt., C.J.
1. The plaintiff filed this suit to recover damages from the defendant for breach of contract. The contract was as follows:-' We have duly made a contract to give you the delivery of two tons of sodium sulphide packed in two cwt. drums of United Alkali's make shipped per SS. City of Delhi at the rate of Rs. 50 per cwt. delivered at Bombay. In case of the steamer meeting with any accident on the way we are not bound to give you the goods, but on arrival of the abovesaid steamer we are bound to give you the delivery of the goods which please note.' The City of Delhi arrived in July 1917. It had not the contract goods on board. The question arises then, whether it was a condition of the contract that the goods should be on the steamer on her arrival, or whether it was an absolute contract to deliver the goods on arrival of the steamer or to be responsible for breach of the contract.
2. It seems to me that the learned appellate Judge was right in holding that this case comes within the decision of Hale v. Rawson (1858) 4 C.B.N. Section 85 and not within the cases relied upon by the trial Judge, viz., Boyd v. Siffkin (1809) 2 Camp. 326 and Johnson v. Macdonald (1842) 9 M. & W. 600. The decisions in those cases provide an answer to the different contentions which have been set up by the parties in this case. It is open to the parties to contract in any way they please. Hut if a suit is filed on the contract, the Court can only give effect to what the parties have agreed to according to the terms of the writing if there is one. If the plaintiff had said that on arrival of the goods in the steamer he would give delivery, then clearly the contract would be conditional on the steamer arriving with the goods. But unfortunately he said that on arrival of the steamer he would be bound to give delivery of the goods. In Hale v. Rawson the defendant contracted to sell to the plaintiffs fifty cases of East India tallow to be paid for by the plaintiffs to the defendant in cash fourteen days after finishing the landing thereof with 2/ 1/2 per cent discount, to be delivered by the defendant to the plaintiffs on safe arrival of a certain ship or vessel called the Countess of Elgin. The defendant contended that as the price was not to be paid till a certain time after the landing, there was also an implied condition that the tallow should arrive in the ship. But the Court said (p. 96):
Now, if there were no such stipulation as be the Lime of payment, the contract would surely be to deliver the tallow cut of the ship if she arrived, whether it should he possible or impossible to perform the contract. How then, can it make any difference that the plain tills undertake, in case the contract is performed by the defendants' delivering the tallow out of the ship, to pay for it within a certain time after it in landed.
3. In Johnson v. Macdonald(1842) 9 M. &W.; 600 the plaintiff agreed to buy 100 tons of nitrate of soda at the rate of 18 shillings for every cwt. duty paid, to arrive by a certain vessel called the Daniel Grant. It was held that the word 'to ' did not mean that the goods should arrive, but merely that they might be sold on their arrival. And therefore that, according to its true meaning, the language of the contract rendered the performance of it conditional on a double event, the arrival in safety of the vessel and her cargo. In Boyd v. Siffkin (1809) 2 Camp. 326 the contract was; ' Sold for Mr. H. Siffkin to Mr. M. Boyd, about 32 tons, more or less, of Riga Rhine hemp, on arrival per Fanny and Almira.' Lord Ellenborough said (p. 328):
On arrival means on arrival of the hemp. The parties did not mean to enter into a wager. By ' sold and bought' in the note must be understood contracted to sell and to buy. The hemp was expected by this ship. Had it arrived, it was sold to the plaintiff. As none arrived, the contract was at an end.
4. It is certainly unfortunate for the defendant in this case that lie was not more particular about the wording of this contract. But we cannot make allowances, when the case comes to Court, for mistakes of this kind, as the plaintiff was entitled to rely upon the strict terms of the contract.
5. It was argued that Section 20 of the Indian Contract Act applied, as there was a common mistake of an essential fact, and so the agreement was void. But the illustration shows in what cases it was intended that the section should apply. If parties agree to the purchase or sale of a specific article and it happens that at the time of the agreement the specific article is not in existence, then it can be clearly said that there is a common mistake as to an essential fact and the agreement is necessarily void. But the question whether the City of Delhi was carrying two tons of the contract goods which could be delivered to the plaintiff is not an essential fact to the agreement. It was open to the parties to make it so, and if the defendant chose to sign the contract in the form he did and in effect gave a warranty that these goods that he sold to the plaintiff were on the City of Delhi, then he must become liable if the ship arrived without the goods.
6. I think, therefore, that the judgment of the lower Court is right and the appeal must be dismissed with costs.
7. I agree.