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Ratilal M. Parikh Vs. the Dalmia Cement and Paper Marketing. Co. Ltd. - Court Judgment

LegalCrystal Citation
SubjectContract
CourtMumbai
Decided On
Case NumberO.C.J. Suit No. 1585 of 1941
Judge
Reported inAIR1943Bom229; (1943)45BOMLR405
AppellantRatilal M. Parikh
RespondentThe Dalmia Cement and Paper Marketing. Co. Ltd.
Excerpt:
indian contract act (ix of 1872), sections 55, 63-contract-forbearance to sue- written and printed conditions of contract-conflict between-whether written conditions should prevail.;a party to a contract may, at the request of the other party, forbear from insisting upon delivery at the contract time and allow time to be extended without binding himself to do so, or may expressly contract for an extension of time, and claim damages for non-performance at the extended time.;ogle v. earl vane (1867) l.r. 2 q.b. 275 (1868) l.r. 3 q.b. 272 muhammad habid ullah v. bird & co. (1922) l.r. 48 i.a. 175 : s.c. 24 bom. l.r. 687 and levy & co. v. goldberg [1922] 1 k.b. 688, followed.;phoenix mills, ltd. v. madhavdas rupchand (1916) 24 bom. l.r. 142, distinguished.;in a contract the terms of.....blackwell, j.1. the plaintiff claims damages for breach of three contracts by reason of the failure of the defendants to deliver to him fifty-five tons of kraft paper. his case is that at the request of the defendants he forbore from insisting upon delivery within the contract times and allowed the time to be extended until february 26, 1941, when the defendants repudiated the three contracts. the defence is that there were no concluded contracts, that if there were, they were finally broken on january 24, or at the latest on january 31, 1941, that by the terms of the contracts prices prevailing at the date of despatch were to be charged, and that consequently the plaintiff has sustained no damage.2. in paragraphs 4 and 6 of the plaint the plaintiff set up express agreements for extension.....
Judgment:

Blackwell, J.

1. The plaintiff claims damages for breach of three contracts by reason of the failure of the defendants to deliver to him fifty-five tons of kraft paper. His case is that at the request of the defendants he forbore from insisting upon delivery within the contract times and allowed the time to be extended until February 26, 1941, when the defendants repudiated the three contracts. The defence is that there were no concluded contracts, that if there were, they were finally broken on January 24, or at the latest on January 31, 1941, that by the terms of the contracts prices prevailing at the date of despatch were to be charged, and that consequently the plaintiff has sustained no damage.

2. In paragraphs 4 and 6 of the plaint the plaintiff set up express agreements for extension of time and mode of delivery, and issues 3 to 8 were raised in reference thereto. At the hearing counsel for the plaintiff informed the Court that he would not attempt to prove these agreements, and those issues became unnecessary. The case was accordingly argued upon the documents and the correspondence, which were put in as exhibits, to which I shall proceed to refer.

3. There are three indents dated respectively October 24, November 4 and November 6, 1940, exhibits A, B and C. The terms and conditions are the same in each of them. They provide that the purchaser agrees to be bound by the terms and conditions set out at the back of the indent form. I need only refer to two of those conditions, 3 and 4, which are in the following terms :-

3. If the goods or any portion thereof are not despatched one month of the despatching date given by the company buyers will have the option of cancelling same by intimating according in writing to the company within seven days of the promised date but if no such notification is received by the company the goods will be despatched and buyers must take delivery.

4. The company will not be responsible for any non-fulfilment of contract provided however that if the goods or any portion thereof from any unavoidable cause such as, want of accommodation on railway, or steamer, strikes of operatives or carriers, accidents, mill breakdowns, or any other case of force majeure, are despatched late buyers must accept 'them when despatched.

Each of the indents contains this provision-

We agree that prices are subject to alteration without notice and that prices prevailing at date of despatch will be charged against this order.

The indent, exhibit A, under the heading 'Goods ordered' specifies in all fifteen tons of kraft paper, the sizes and weight in pounds per ream being given in respect of each quantity specified. Then it is provided under the heading 'Flat or Fold', 'if possible folded'. The price is mentioned as four annas six pies, which it is agreed means per pound, and the date of delivery is mentioned as 'about six weeks.' The second indent, exhibit B, under the heading 'Goods ordered' specifies ten tons of kraft paper, the sizes and weight in pounds per ream being given in respect of different quantities specified. Nothing is written under the heading 'Flat or Fold'. The price again is given as four annas six pies and the date of delivery is December/January. The third indent, exhibit C, under the heading 'Goods ordered' specifies thirty tons of kraft paper. Neither the size, nor the weight, is mentioned, nor whether the goods are to be despatched flat or folded. The price is stated as four annas six pies and the date of delivery is 'as early as possible'. Each of those indents was signed by one Ramanlal for the plaintiff, the address being an address at Ahmedabad.

4. On November 10, 1940, the plaintiff wrote a letter addressed to the defendants in Bombay enclosing a specification for fifteen tons kraft paper ' against our contract which please confirm per return and oblige'. The letter then against the word 'Railment' requests the defendants out of the fifteen tons to make three equal lots and rail the same at the interval of a week, and requests the defendants to confirm this. The letter gives an address in Bombay to which any reply to that letter should be sent. The specification which was enclosed asks for delivery at Ahmedabad, which was in accordance with the place of delivery mentioned in the' indent exhibit A and asks for three equal lots at intervals of a week. The sizes and weights mentioned in that specification differ in some respects from the sizes and weights mentioned in exhibit A, and the specification requests that the goods should be despatched folded. With that letter there appears to have been enclosed a further specification for ten tons to which the indent exhibit B relates. That specification mentions no place for delivery. Commenting upon the specification for fifteen tons Mr. Engineer, the Advocate General, argued that it introduced differences both in size and weight from those specified in exhibit A, and sought to impose a term that there should be deliveries in three equal lots at intervals of a week, which was not provided for in exhibit A, and that it sought to impose upon the defendants an obligation to fold the goods, although exhibit A merely provided that they should be folded if possible. He contended that the terms of the offer contained in the indent were altered by the specification, and that it amounted to a fresh offer containing terms different from those in the indent.

5. By their letter written from Bombay dated November 23, 1940, the defendants referred to the three indents, exhibits A, B and C. They acknowledged the receipt of the plaintiff's letter of November 10 in which the specifications above referred to were enclosed, and said as follows :

We have the pleasure to inform you that your above orders have been confirmed by our principals, which will be executed according to specification as of our general manufacturing practice. As far as possible delivery will be made by the end of December or by the 1st week of January.

As regards your remarks for railment, we regret that it is not our practice to despatch the goods of any order in more than one lot, and hence, we are unable to accede to your request.

In my opinion this letter is an acceptance of the indents, no objection being taken to the specifications enclosed in the letter of November 10. The place of delivery as regards exhibit A was F.O.R. Ahmedabad. The place of delivery not being mentioned in exhibits B and C, I hold that the place of delivery was Bombay, where the defendants have their office and where they accepted the indents. In my opinion it was not open to the plaintiff to depart in any respect from the provisions of the indents. It was not open to him to ask for deliveries in more than one lot. It is true, as will appear from the correspondence, that the plaintiff did from time to time request the defendants to deliver in more than one lot, but he was not entitled to do so, and he did not insist upon it. The fact that he made such s request does not, in my opinion, alter the fact that by their letter of November 23 the defendants did accept the orders contained in those indents. To the extent to which the specifications mentioned weights and sizes different from those set out in the indents, it was open to the defendants if they had chosen to insist upon the plaintiff taking delivery of the goods in accordance with the weights and sizes specified in the indents. It was equally open to them, if they chose, to supply the goods in accordance with the sizes and weights mentioned in the specifications. No weights or sizes were mentioned in exhibit C. It was, therefore, clearly necessary for the plaintiff to inform the defendants what weights or sizes were required, and in their letter of November 23 the defendants agreed that the orders would be executed according to the specification in accordance with their general manufacturing practice, and raised no objection to the specifications which had so far been sent to them.

6. On November 26, 1940, the plaintiff wrote a letter to the defendants acknowledging the receipt of their letter of November 23, 1940, and thanking them for confirming their orders for fifty-five tons. They requested the defendants to despatch each order at the interval of date mentioned in the contract. The indent exhibit A specified delivery in about six weeks, exhibit B in December/January and exhibit C as early as possible, and in their letter of November 23 the defendants expressed their intention as far as possible to make delivery at times which would be conformable to the times specified in the indents. In his letter of November 26 the plaintiff informed the defendants that he wanted fifteen tons in the middle of December, which was consistent with the time fixed in the first indent, and as to the remaining orders he requested the defendants to despatch ten tons in the first week of January, the indent relating thereto specifying December/January as the delivery period, and thirty tons by the end of January, the indent relating thereto providing for delivery as early as possible.

7. By their letter of November 30, 1940, the defendants acknowledged the plaintiff's letter of November 26 and stated that they were advising their head office to arrange for the execution of the orders in accordance with the time of delivery specified by the plaintiff. They went on to complain that they had not received specifications in respect of the indent for thirty tons, (the indent as to which, exhibit C, was silent, as to sizes and weights) and they told the plaintiff that unless and until they received his specifications they could not state anything about the exact delivery time and asked him to send the specifications.

8. By his letter dated December 6, 1940, the plaintiff referred to the defendants' letter of November 30 and asked the defendants to let him know when he would get his first order of fifteen tons which was to be supplied by the defendants in December.

9. By his letter of December 8, 1940, the plaintiff sent to the defendants a specification for twenty-five tons out of the order for thirty tons 'to be despatched at Ahmedabad', and said that the specification for the remaining five tons would be sent in due course. He asked the defendants to inform their head office that each lot was to be delivered at an interval of about a week. In inserting the term 'to be despatched at Ahmedabad' and in requesting that each lot should be delivered at intervals of a week, the plaintiff was seeking to depart from the terms of the offer which had been accepted, which he was not entitled to do. The specification enclosed with that letter also mentions delivery at Ahmedabad in three equal lots at an interval, and to that extent the specification was not authorised, though it would of course have been open to the defendants to deliver at Ahmedabad and to deliver in three equal lots if they had chosen to do so; but there was no obligation upon them to do so. All they were bound to do was to carry out the terms of the contract. The specification also provided that the goods should be packed folded. The indent exihit C was silent as to whether they were to be flat or folded, and it was for the defendants to supply the goods to the plaintiff as they chose.

10. By their letter dated December 9/10, 1940, the defendants acknowledged the plaintiff's letter of December 8, and again told the plaintiff that the goods would be supplied in one lot only and not in three lots as they were entitled to do. They acknowledged the receipt of the specification for twenty-five tons and raised no objection to anything contained therein. They complained that the specification for the remaining balance of five tons had not been sent, and said,

Please send us specifications for these five tons immediately on receipt of this letter, so that collectively for your entire order, we will send specifications to our principals.

By this letter therefore the defendants acknowledged the receipt of the specifications so far received and raised no objection to them and stated that on receiving specifications for five tons they would send them to their principals.

11. By their letter of December 10, 1940, the defendants referred to the plaintiff's letter of December 6 and said that delivery against the order therein referred to, which was the first order in respect of fifteen tons, would be made to the plaintiff by the end of the month 'about which you may please rest assured.'

12. With his letter of December 16, 1940, the plaintiff sent to the defendants a specification for five tons against the order for thirty tons, and stated that he noted the defendants' remarks as to delivery which was to be made by the end of December. As a foot-note to his letter he said-

N.B. This complete the all contract which please note.

The specification enclosed with that letter mentions no place for delivery. It gives the sizes and weights and requests that the goods should be folded.

13. By their letter of December 16/17, 1940, the defendants refer to the plaintiff's order for fifty-five tons of kraft paper and state that they had been advised by their principals that they would not be in a position to make delivery against the order earlier than the third week of February, because they had been very heavily booked in advance, and they request the plaintiff to let them know if that delivery time would suit him, and if so, to confirm it. Thus the defendants were seeking to alter the times for delivery specified in the orders which the defendants had accepted.

14. By his letter of December 18, 1940, the plaintiff acknowledges the receipt of the defendants' last mentioned letter and says that he could not agree to an extension of time therein mentioned. He said that he had informed all his clients on the strength of the defendants' letter of December 10 that he would be able to deliver kraft paper in the early part of January, 1941. He requests the defendants to arrange with their principals to rail at least fifteen tons of the first order during the third week in December. By this letter the plaintiff is seeking to hold the defendants to the times of delivery specified in the orders which the defendants had accepted. By their letter of December 17/18, 1940, the defendants refer to the specifications in respect of the thirty tons and again inform the plaintiff, as they were entitled to do, that his order would be executed in one lot only.

15. By their letter of December 23, 1940, the defendants referring to the plaintiff's order for fifty-five tons and the indent dated October 24, 1940, and the plaintiff's letter of December 18, 1940, inform the plaintiff that they had stressed upon their principals the urgency of his requirements and say that as soon as they heard from them they would immediately revert to the matter. They state for the plaintiff's information that their principals were very heavily booked in advance, and were finding it difficult to comply with their request.

16. By their letter of December 30/31, 1940, the defendants refer to the plaintiff's order for fifty-five tons, and inform the plaintiff that their principals were not accepting many orders sent by them because they were heavily over-booked. They go on to say that as a very special case their principals had booked the plaintiff's order, but state that the goods could be supplied to the plaintiff by the end of January, 1941, at the earliest, and ask the plaintiff to confirm this. In face of this very definite statement that the defendants' principals had booked the plaintiff's order, I find it difficult to follow the argument advanced on behalf-of the defendants that there was no concluded contract. This letter acknowledges that the contracts were binding upon the defendants, but requests the plaintiff to agree to an extension of time for delivery of the goods up to the end of January, 1941, at the earliest. This was a request which it was open to the plaintiff to agree to, or not, as he pleased.

17. By his letter dated December/January 4, 1941, which, it is agreed, was in fact written on January 4, the plaintiff refers to an interview which he had had with the defendants' representative Mr. Keshavdev. The letter states that the plaintiff was glad to note that the defendants had kindly consented to supply fifteen tons of kraft paper within that week. At the foot of the letter a specification of the sizes and weights is set out.

18. By their letter dated January 6/7, 1941, the defendants acknowledge the plaintiff's letter of the 4th instant, and state that they had noted his requirements for fifteen tons of kraft paper. The letter goes on to say that their representative Mr. Keshavdev had told the plaintiff's representative that if the defendants received any additional quantity from their mills they would do their best to meet his requirements. The letter says that they could not guarantee that the delivery would be made within a week's time The fifteen tons referred to in this letter relate to the fifteen tons covered by the first indent, exhibit A, dated October 24, 1940, the delivery of which was to be made in about six weeks' time. It is therefore plain from these letters of January 4 and 6 that the plaintiff was forbearing from insisting upon delivery strictly in accordance with the time provided for in the indent exhibit A.

19. By their letter of January 24, 1941, the defendants refer to the three indents and say that owing to technical difficulties in the mills their principals were not in a position to manufacture kraft paper against those indents and would therefore be unable to supply the same. The letter goes on to say that their principals had informed them that they would be pleased, for a short time only, to accept indents from the plaintiff for duplex boards instead, and that if the plaintiff liked to take advantage of the offer he should let them have his specifications for duplex boards which should not exceed in quantity mentioned in the original agreement in any case for the approval of their principals. Having received this letter the plaintiff could, if he had chosen, have treated it as a repudiation by the defendants of the contracts and could have held them liable in damages as of that date. Having regard however to the terms of the letter he was not bound to do so. The letter made a suggestion for the fulfilment of the contract by the supply of duplex boards in place of kraft paper, and it was open to the plaintiff if he pleased to keep the contracts alive and agree to their being fulfilled by the supply of duplex boards in place of kraft paper.

20. By his letter of February 1, 1941, the plaintiff intimated to the defendants that he did not intend to treat their letter of January 24 as a final repudiation by the defendants of their obligations under the contract. The plaintiff's letter of February 1, 1941, refers in terms to the three indents. The plaintiff by his letter informs the defendants that he was consulting his clients and hoped very soon to send them definite specifications for duplex boards. The position therefore was this, that the plaintiff was expressing his willingness to have the three indents fulfilled by the supply of goods of a different character provided that he could get his purchasers to agree to this proposal. It is plain that the contracts were being kept alive in the hone that they might be fulfilled in this alternative manner. The letter goes on to refer to an interview which the plaintiff had had with the defendants' representative, Mr. Keshavdev and asks the defendants to let the plaintiff have early the defendants' invoice showing the amount that the plaintiff should remit for the fifty-five bales of kraft paper which, he said, the defendants had been good enough to spare him. It is plain from this letter that notwithstanding their letter of January 24, 1941, the defendants themselves were still treating the contracts as alive and were proposing to carry them out in part, at any rate, by the supply of fifty-five bales of kraft paper.

21. With their letter of January 30, 1941, the defendants send to the plaintiff a pro forma invoice in duplicate and say as follows :-

Please return the duplicate of this pro forma invoice duly signed by you soon to us in view to obtain our delivery order to take delivery of the goods as per your order dated October 24, 1940, November 4, 1940, and November 6, 1940.

Thus the defendants themselves acknowledge on January 30, 1941, that those contracts were still alive. The duplicate invoice sent with the letter relates to fifty-five tons of kraft paper, and sets out sizes and dimensions. It is particularly to be observed that the price mentioned on this invoice signed by the defendants themselves is four annas six pies per pound. This is significant inasmuch as in the defendants' solicitors' letter of March 8, 1941, written after the defendants had repudiated the contracts, it was stated that in the pro forma invoice sent by the defendants the rate had been erroneously mentioned at four annas six pies per pound instead of seven annas six pies per pound being the rate prevailing, so the letter stated, on the date of despatch. By this correction the defendants were endeavouring to rely upon the printed term contained in the indents that prices were subject to alterations without notice and that the price prevailing at the date of despatch would be charged against the order, although the price written in on each of the three indents was four annas six pies, as is acknowledged by the defendants themselves in the pro forma invoice in question.

22. With his letter of February 3, 1941, the plaintiff returns to the defendants the pro forma invoice.

23. By their letter of February 4, 1941, the defendants again refer to the three indents and acknowledge the receipt of the pro forma invoice. They go on to say,

We are awaiting with interest the necessary particulars and specifications for your balance of the above orders, which are now converted into box boards.

The defendants were inaccurate in stating that the orders had been converted into box boards. The position was that the indents were being kept alive, and the parties were seeing whether they could be carried out by the supply in part of box boards, the defendants having already agreed to supply fifty-five tons of kraft paper. By his letter of February 6, 1941, the plaintiff refers to the kraft paper invoice and informs the defendants that some of his clients had furnished him with the specification of what they would accept as substitute for the kraft paper. The specification is set out and the plaintiff informs the defendants that he would send them further advice as soon as he got them from his clients. Then the letter refers to the duplicate invoice which covered fifty-five bales of kraft paper which the defendants had agreed to supply, and says that instructions for the remaining bales of kraft paper would soon follow.

24. By their letter of February 10, 1941, the defendants acknowledge the receipt of the plaintiffs letter of February 6, which converted the kraft paper order in part into an order for box boards as therein stated and said that it came to about nine tons. The letter then goes on to state as follows :-

We have kept reserved for you in our godowns kraft paper of fifty-five bales, which also comes to about nine tons. So, in all, against your order for fifty-five tons kraft, subtracting these eighteen tons, there still remains a balance of (55 tons-18 torts) = 37 tons, which, as we have already advised to you, is to be converted into box boards.

The defendants request the plaintiff to send specification for the balance of the order. Thus this letter shows that the orders as regards nine tons were still to be fulfilled by the supply of kraft paper. The letter says that thirty-seven tons were to be converted into box boards, but it is plain from the preceding correspondence that the plaintiff had informed the defendants that he was prepared to agree to this only to the extent to which his customers were prepared to agree to this.

25. By his letter of February 21, 1941, the plaintiff acknowledges the receipt of the defendants' letter of February 10, and says that as he had intimated to the defendants in person he had been inducing his client to convert their kraft paper orders into duplex boards. He states that the defendants would agree that that was no easy matter especially in view of the fact that the price of the duplex boards had not yet been fixed and he asks the defendants to intimate to him the price of the duplex boards with a view to facilitate the matter. He then says that the conversion of his clients' orders depended on their good-will as well as their need for the duplex boards. It is plain from this letter that the plaintiff had not agreed with the defendants that the balance of the order should be converted into duplex boards, but that he was doing his best to persuade his clients to agree to that course. Both the plaintiff and the defendants in my opinion were negotiating upon the footing that the contracts were still alive, and that they were both doing their best to see how they could be carried out, the defendants having already supplied about nine tons of kraft paper, after their offer to convert the whole quantity into duplex boards, that offer not having been accepted by the plaintiff. In the letter of February 21 the plaintiff complains that the fifty-five bales of kraft paper had not been delivered to his nominees, the Reliable Mill Stores Company of Bombay, in spite of their having asked for the same, and informs the defendants, that he was forwarding their invoice for the fifty-five bales to the head office of the Imperial Bank of India in Bombay with instructions to receive delivery and to pay the amount therefor, and the plaintiff requests the defendants to deliver those goods to the bank and receive payment. The bank did not receive delivery of those bales and the defendants by their letter of March 3, 1941, inform the bank of their inability to deliver the goods as requested by their representative.

26. While the three contracts were still alive and while the plaintiff was endeavouring to obtain the consent of his customers to accept duplex boards in place of kraft paper the defendants suddenly put an end to the contracts. On February 26, 1941, their attorneys wrote a letter to the plaintiff in which they state that the defendants had placed in their hands the correspondence which had passed between them and the plaintiff 'on the subject-matter of your three indents of kraft paper respectively dated October 24, November 4 and 6, 1940.' They go on to say that the defendants had been informed of certain illegal gratification paid with reference to several indents of paper placed through their Bombay office, had instituted inquiries, and had found that illegal gratification had been paid to Mr. Keshavdev, their salesman in their Bombay office with a view fraudulently to get advantage in connection with the indents of paper placed with the defendants for execution. The letter states that Mr. Keshavdev had been paid illegal gratification by the plaintiff and that the defendants therefore 'hereby avoid the said three orders placed by you reserving their right to take such proceedings in the matter as they may be advised.' The letter further states that without prejudice to what had been stated above their clients were protected against non-fulfilment of the contracts under term No. 4 of the terms of business under which the indents had been placed by the plaintiff with the defendants. This letter acknowledges that the three orders which had been placed by the plaintiff with the defendants were still alive. By the letter the defendants seek to avoid them as contracts which were still alive. The defendants made no attempt at this trial to substantiate the allegation that illegal gratification had been paid by the plaintiff to their representative Keshavdev Neither did they rely upon term No. 4 in the indents. Their only defences have been that there were no concluded contracts, and that as the' prices were to be the prices prevailing at the date of despatch, the plaintiff has suffered no damage. I hold, on the indents and the correspondence, that there were concluded contracts, and that the defendants finally broke those contracts by their letter of February 26, 1941.

27. It is well established that a party to a contract may at. the request of the other party forbear from insisting upon delivery at the contract time and may allow time to be extended, without binding himself to do so, or may expressly contract for an extension of time, and that he may claim damages for nonperformance at the extended time.

28. An example of extension of time by express agreement with this result is to be found in Muhammad Rabid Ullah v. Bird & Co. (1922) L.R. 48 IndAp 175 In that case their Lordships of the Privy Council referred to the first paragraph of Section 55 of the Indian Contract Act, 1872, which is as follows :-

When a party to contract promises to do a certain thing at or before a specified time, or certain things at or before specified times, and fails to do any such thing at or before the specified time, the contract, or so much of it as has not been performed, becomes voidable at the opinion of the promisee, if the intention of the parties was that time would be of the essence of the contract.

Their Lordships said that the respondents in that case did not elect to avoid the contract, but held it as subsisting, and agreed to prorogue the time of performance as they were entitled to do by virtue of Section 63 of the Indian Contract Act, 1872, which is as follows :-

Every promisee may dispense with or remit, wholly or in part, the performance of the promise made to him, or may extend the time for such performance, or may accept instead of it any satisfaction which he thinks fit.

Their Lordships held that there was a breach at the extended time and that damages were calculable in the ordinary way.

29. Ogle v. Earl Vane (1867) L.R. 2 Q.B. 275 is an example of extension of time by forbearance there being no actual agreement to extend time. In that case, as in the present., the question depended upon the interpretation to be placed upon the correspondence. Blackburn J. thought that the fair conclusion to draw from the correspondence was that the plaintiff, instead of insisting on his strict rights, consented to treat the defendant leniently, and waited, without binding himself to wait, and that it was a case of voluntary waiting, and not of alteration of the contract, the length of time making no difference. The case is particularly useful as regards the present case, because from the correspondence it appeared that the defendant, having repudiated liability on the ground that non-delivery was due to inevitable accident, proposed that the plaintiff should take iron of a different quality, but that this proposal came to nothing, and that after waiting sometime at the request of the defendant the plaintiff was entitled to recover damages. The observations of Kelly C.B. in the Exchequer Chamber L.R. 3 Q.B. 272 are instructive :-

This is what takes place : the defendant (for what Shaw did may be taken as done by the defendant), who has broken his contract, and is then liable for the breach, writes to the plaintiff, and proposes to deliver as a substitute for the iron under the contract a different kind of iron. The plaintiff proceeds to take this proposal into consideration, and ultimately it comes to nothing, the persons with whom the plaintiff had sub-contracts refusing, from whatever may have been the cause, to accept the substitution : and the proposal is not accepted by the plaintiff. But surely the very proposal itself implies a request, in all courtesy, as between men of business, that the plaintiff will not commence an action at once, but delay, in order to see whether a compromise cannot be effected; and surely whether there was that implied request, and consequent delay on the part of the plaintiff, was matter for the consideration of the jury in estimating the damages the plaintiff was entitled to.

In the present case by their letter of January 24, 1941, the defendants proposed to deliver duplex boards as a substitute for kraft paper. The defendants themselves showed that the contracts were still alive' by sending an invoice for fifty-five bales of kraft paper. Accordingly it is plain that the contract was to be carried out on the defendants' own showing, not by a complete substitution of duplex boards, but in part by the delivery of kraft paper. This being the position and the contracts still being alive the plaintiff proceeded to try and obtain the consent of his customers to the proposal as appears from his letter of February 21, 1941,. and while he was endeavouring to do this, though he had not bound himself to agree to the proposal, the defendants by their letter of February 26, 1941, repudiated the three contracts.

30. Levy & Co. v. Goldberg [1922] 1 K.B. 688 is another case of forbearance which may usefully be referred to. McCardie J. reviewed the authorities, including Ogle v. Earl Vane and Hickman v. Haynes (1875) L.R. 10 C.P. 598, and held that the forbearance by the plaintiff at the request of the defendant from insisting upon delivery within the defined period did not constitute a variation of the contract, and that the plaintiffs were entitled to recover damages.

31. The Advocate General, Mr. Engineer, relied upon Phoenix Mills, Ltd. v. Madhavdas Rupchand. (1916) 24 Bom. L.R. 142 But in that case there was no evidence of extension of time either by express agreement or forbearance, and Macleod J. held that nothing was done under the contract, that it came to an end, and that what happened thereafter had no relation to the contract. That is a very different case from the present.

32. It remains to consider the defence that prices prevailing at the date of despatch were to be charged and that the plaintiff had therefore sustained no damage. In each of the three indents the price is typed in as 4 annas 6 pies per pound, but one of the printed terms is, 'We agree that prices are subject to alteration without notice and that prices prevailing at date of despatch will be charged against this order.' The position in law is that if the printed terms are inconsistent with what has been written or typed; in, the latter must prevail : see Norton on Deeds, 2nd Ed., p. 33, and Noorbhai v. Allabux & Co. : AIR1917Bom246 The Advocate General did not dispute this proposition, but submitted that the vendors were manufacturers, that it was war time, that the price of labour and materials might alter, and that there was no inconsistency between the printed terms and what was typed in. I do not agree with him. If the printed terms had been, 'We agree that prices are subject to alteration without notice 'and nothing more, there would have been much force in his argument, but seeing that they go on to provide' that prices prevailing at date of despatch will be charged against this order,' there was no point in typing in the price unless the parties intended thereby to fix the price once and for all. In my opinion that is what they intended to do, and what is typed in must prevail over what is printed in' this respect. It is significant, as I have already pointed out, that in their pro forma invoice sent with their letter of January 30, 1941, the defendants themselves specified the price payable for the delivery of fifty-five bales at or about that time as 4 annas 6i pies though by their solicitors' letter of March 8, 1941, they stated that that price had been mentioned in error instead of 7 annas 6 pies. In my opinion this defence fails.

33. I come now to the question of damages. Up to March, 1941, the only two manufacturers of kraft paper in India were the Orient Mills and the defendants. It is common ground that a shortage of kraft paper began early in January, 1941, that that shortage was occasioned by the fact that the defendants ceased to manufacture, and that the shortage became more and more acute as time went on during January and February, though the rates fluctuated and went both up and down during that period. It was agreed that the question of damages should be decided upon the footing that kraft paper manufactured by the defendants was of the same quality as that manufactured by the Orient Mills. Although I fixed the date of breach as February 26, the question of damages having stood over until I had given my finding as to liability, I thought it desirable to ascertain the rates on January 24 and 31, 1941, lest another Court might take the view that either of those dates was the date of breach. Both parties agree (the defendants without admitting liability) that the rates for January 24 and 31 are 6 annas 6 pies and 7 annas 6 pies per pound respectively. The defendants are similarly willing to agree the rate for February 26 (without admitting liability) at 8 annas 6 pies per pound, but the plaintiff is not so willing, contending) that the rate on that day was much higher. I therefore proceed to examine the evidence.

34. [After examining the evidence in detail his Lordship concluded,] The result is that the difference between the contract rates and the market rates; is the difference between 4 annas 6 pies, and 8 annas 9 pies as to the contracts of November 4 and 6 totalling forty tons and 9 annas as to the contract of October 24 for fifteen bales.

35. I pass a decree for the plaintiff for Rs. 33,250, costs and interest of judgment at six per cent., costs to include the costs of the Chamber Summons for directions.


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