1. The plaintiff, Mohamad Ismail Khan, who has died since the institution of the suit and is now represented by his heirs, brought the suit, out of which this appeal has arisen, to recover Rs. 9,000 odd by way of damages for breach of contract.
2. There were two defendants in the case (1) Hasan Ali Khan (2) Najirulla Khan.
3. Briefly put, the case for the plaintiff was that, on or about the 14th September 19.16, he entered into a contract with the first defendant for the purchase of a quantity of indigo at the rate of Rs. 200 per factory maund. The agreement between the parties was that the indigo should be delivered to the plaintiff about the end of October. The case for the plaintiff was that, on the 7th of November 1916, the defendant, Hasan Ali Khan, refused to give him delivery, thereby breaking the contract.
4. It may be mentioned here that the seeond defendant was more or less a nominal defendant in the case. He is the servant of the first defendant and is said to have been a partner in the indigo business to the extent of a one-anna share.
5. The defence raises two main pleas, namely:
1. that there was no complete contract between the defendants and the plaintiff, and
2. that, if there was a contract between the parties, the defendants had not been guilty of breach of contract, but, on the other hand, the plaintiff himself had made default.
6. The learned Subordinate Judge seems to have been of opinion that there was no complete contract between the parties. He further held in the defendants' favour that, if there was a contract, the party in default was the plaintiff himself who was, therefore, not entitled to recover.
7. In appeal here, the case which was raised by way of defence to the effect that there was no complete contract between the parties, has been abandoned and rightly so. There can be no doubt whatever on the evidence in the case that a contract was entered into between these parties on the 14th September 1916, for the sale and purchase of indigo.
8. The necessary facts are all admitted in the statement made by the first defendant when he was examined as a witness in Court and the letters which passed between the parties amply prove that there was a contract made between them on the date above mentioned.
9. There can, indeed be no doubt that the first defendant seems to have desired that the terms of the contract should be reduced to writing. He seems further to have desired that a substantial sum of money should be deposited with him as earnest-money, and it was because the plaintiff had refused to reduce the contract to writing and to supply the Rs. 2,000 demanded by way of earnest-money, that the plea was put forward to the effect that the contract between the parties was not complete.
10. We need say nothing more about this part of the case. If the first defendant desired to have any special terms made after the date upon which the contract was entered into, that would not affect the contractual relations already established between the parties.
11. The only question, therefore, with which we have to deal is, whether the plaintiff himself was in fault or whether the defendant wrongfully refused to give the delivery and was thereby guilty of breach of contract.
12. It appears that, in the month of September when the contract was made, the indigo which was the subject-matter of the bargain between the parties, had just been manufactured. It was not possible at that time to fix a definite date for delivery before the manufactured cakes had been dried. It was not possible at the time the parties entered into the contract to fix any definite time by which the drying process would be complete. Consequently, it must be taken that, under the arrangement come to between the parties, it was for the first defendant to fix the date of delivery. He was In charge of the indigo which was stored in his Factory and he was responsible for getting the indigo into marketable condition. He was further under an obligation to see that the indigo was properly packed.
13. There can, we think, be no doubt that at the time the contract was made, a sample of the indigo was given to the plaintiff. Consequently, when the time for delivery came, it was the plaintiff's right to have an inspection of the indigo which was being offered to him, so that he might compare it in bulk with the sample which was in his possession. Lastly, it is clear that, on the terms of the contract, the plaintiff was under an obligation to pay for this indigo at the time of delivery. The amount in question was about Rs. 11,000.
14. We have been referred to certain letters which passed between the parties from the middle of September till the beginning of November. We do not propose to discuss this correspondence. It is sufficient to say that it appears that the partice were not disposed to trust each other regarding the fulfilment of the contract. Each party seems to have regarded the other with suspicion and, in short, they seem to have been dealing with each other at arm's length.
15. On the 1st November 1916 the defendant wrote a letter, Exhibit 6, page 30 of the appellant's book, informing the plaintiff that the goods would be ready for delivery at the Factory at Chidauli on the 15th November 1916. The plaintiff was asked to attend at the Factory on that date, either in person or through a karinda and to bring with him a sum of Es. 11,000, the approximate value of the goods In this letter the defendant, Hasan Ali Khan, wrote that, if the plaintiff did not appear on the date in question or send an agent, he would hold the plaintiff liable for a breach of contract and would arrange otherwise for the disposal of his goods.
16. The plaintiff replied to this letter by a letter dated the 4th November 1916. He took up a controversial attitude over the matter and said that he did not understand what the first defendant meant by saying that the time for delivery had been fixed. He disputed this statement and said that no time had been fixed for delivery nor was it possible that any time could be fixed because the indigo could not be weighed until it was in a dry state. In this letter, moreover, the plaintiff wrote to the defendant that the latter's indigo was not $et dry and he suggested that nothing more should be done until the plaintiff himself had seen the indigo and was satisfied that it was in a dry condition. We may say here that it is not apparent how the plaintiff could possibly know whether the indigo which was lying in the Factory was or was not in a dry state. His statement that it was not fit for delivery seems to have been based on some inferences which he drew from the state of indigo in some other Factories of which he professed to have some knowledge.
17. The plaintiff admittedly did not attend at the Factory at Chidauli on the 5th November 1916. When he was cross-examined on this point and asked to explain, his answer was that he did not go to the Factory on the date in question because he had no time. He admittedly turned up in the village of Chidauli late in the evening, on the 6th and, on the 7th, he appears to have written a letter or two to the defendant,
18. The defendant admitted that he had received one of these lettars and stated in Court that he had sent an answer to the plaintiff, a copy of which is on the record (Exhibit D). The plaintiff, in his turn, denied ever having received this letter.
19. In his cross-examination, the plaintiff admitted that when he went to Ghidauli on the 6th November, he had no money with him. His statement in Court was that the defendant had asked him to send the money in notes after weighment of the goods had been made. This latter statement, it may be observed, does not appear to be true, for it is in direct conflict with what had been stated by the first defendant in his letter of the 1st November, in which he insisted that the purchase-money, namely, Rs. 11,000, should be brought to the Factory on the 5th November.
20. The plaintiff remained in Chidauli the night of the 6th, the whole of the 7th of November and left there on the morning of the 8th of November. It is an admitted fact that all this time he never went near the first defendant's Factory although the evidence shows it is situated only a hundred yards from the house in which the plaintiff was staying.
21. The plaintiff was cross-examined on this point and said that he would have weighed the indigo if he had known that it was in a dry condition. He went on to say that the defendant did not show him the indigo, and he seems to have put forward this as an excuse for not taking delivery. With regard to this, it may well be asked how the defendant could have shown the plaintiff the indigo when the latter refused to go near the Factory. The plaintiff added by way of explanation that he did not care to come to the Factory because he and the defendant were not on good terms after the correspondence which had passed between them.
22. As opposed to this, we have the sworn statement of the first defendant whose story is to the effect that, after sending the letter of the 1st November 1916, be went to the Factory at Chidauli on the 5th and was ready to give delivery to the plaintiff whenever he came. The plaintiff failed to appear on the 5th or on the 6th, and the story is that, in these circumstances, the first defendant came to the conclusion that the plaintiff did not intend to take delivery. The defendant, therefore, began packing up the indigo in lines. He admits that he mot the plaintiff at dinner on the evening of the 7th at the house of a common friend, one Raham Ali, and he deposed to a certain conversation which he had with the plaintiff a conversation which the plaintiff denies.
23. We have on the record the statement of Raham Ali, the gentleman at whose house both the parties dined on the night of the 7th of November. We have no reason to doubt the truth of the statement made by Raham Ali in Court. He seems to have been a friend of both parties. Raham Ali knew about the indigo business which was being carried on at Chidauli and he states that when the first defendant came to Chidauli on the 5th of November, indigo cakes were dry and ready for packing. The witness himself saw some of the packing done and he states definitely that he examined the goods and found that the cakes were in a dry condition. Speaking about the visit of the plaintiff, he deposes that the plaintiff wrote a letter which he sent to the first defendant by one Mahfuz Ali and he further swears that Mahfuz Ali brought a reply to his letter. In addition to this, the witness stated that, in consequence of a. request made to him by the first defendant, he spoke to the plaintiff Mahomed Ismail about taking delivery of the indigo. The witness swears that when this message was given to the plaintiff, the latter said that he would have the indigo weighed and that the money would be paid on the date fixed for payment. The plaintiff further added that he had brought no money at that time and he concluded by saying that if the first defendant refused to deliver the indigo, he would 'see to it.' In other words, he threatened to take proceedings against the first defendant.
24. We have no doubt at all, on the statement of this witness Raham Ali, that, on the 5th of November, the indigo in the defendant's Factory was ready for delivery and in good marketable condition. There is no foundation whatever for the position taken up by the plaintiff, namely, that the indigo could not, on that date, have been in a fit condition for packing on account of its being wet. As we have said, the plaintiff had no personal knowledge whatever of the state of the indigo inside the Factory for he never went near it.
25. We have also mentioned a letter, Exhibit D, which was admitted in evidence in the Court below. This is an office copy of the letter which the first defendant says he Sent to the plaintiff on the 7th November 1916. It has been objected before us that this document ought not to have been received in evidence as it was produced at a late stage of the case. The record shows that the other documents in the case were filed on the 6th April 1917. This document, on the other hand, was not put into Court till the 19th December 1917, the date on which the witnesses began to be examined. It is apparent, however, that - before this, i.e., in the month of July, the defendant had called upon the plaintiff to produce the original letter of which Exhibit D was a copy. The record shows that this notice was served upon the plaintiff's Counsel and there is nothing to show that the document was brought to Court. In fact, from what the plaintiff himself afterwards stated in the evidence, the document could not have been brought to Court on the assumption that the plaintiff's statement is true, for his story is that he never got any such letter. We do not believe the story for fine plaintiff on this point. We have the statement of Rahman Ali that when a letter was sent to the defendant on the morning of the 7th of November, a reply to that letter was brought by Mahfuz Ali the messenger Mahfuz Ali was examined and, when making his statement regarding this particular incident, he stated that he took the letter to the defendant in the morning and came back with a letter. He at once withdrew his latter statement and said that he got no letter from the defendant, saying that he had made a mistake in stating that an answer had been given to him by the defendant. We think we may safely take it that, as a matter of fact, the first defendant did reply to the letter sent by the plaintiff on the morning of the 7th November, and that Exhibit D represents the contents of the letter which was sent by defendant No.1. If that letter is acted upon, it seems to us to be abundantly clear that the defendant offered delivery of the goods on the 7th of November. In this letter he says that he had been waiting for the plaintiff for two days and that he had lost all hopes of the plaintiff taking delivery and had, therefore, begun to pack the indigo up with the object of sending it to Khurja. He, however, offered the plaintiff another opportunity of taking delivery and said that he might examine the indigo which was already packed and inspect the indigo which had not been put into the boxes. He intimated that delivery would be on the spot but only on condition that the plaintiff brought the money with him.
26. We have to chose, therefore, between these conflicting stories told by the plaintiff on the one hand, and the first defendant, on the other, and, after a careful consideration of all the evidence, we hold that the story/ of the defendant ought to be accepted. It is, we think, supported in very material particulars by the testimony of the witness Raham Ali whose bona fides we have no reason to suspect.
27. It has been urged upon us with considerable force that the probabilities are all in favour of the defendant having refused delivery and the plaintiff being desirous of taking it. There can, we think, be no doubt that subsequent to the date of the contract, the market price of indigo had risen considerably. The plaintiff says that the first defendant wanted to back out of his bargain in order to profit by the rise in the price, and it is argued that, with this rise in price, the plaintiff stood to make a very substantial profit and would not, therefore, likely have declined the delivery if the goods were ready for him. There is, no doubt, considerable force in this argument but one thing has to be remembered and that is this, namely, that, under the terms of the contract, the plaintiff was under an obligation to produce a sum of about Rs. 11,000 at the time the delivery was to be given and, after an examination of the evidence, we have come to the conclusion that the real reason why the contract was not completed was that the plaintiff could not find the money. His conduct on the 7th of November at Chidauli seems to us to have been altogether inconsistent with any notion of an intention on his part to take delivery. It is quite inexplicable to us why he failed to go over to the Factory a few hundred yards away, and satisfy himself that the goods which were being offered to him were up to sample and in a fit condition to be put upon the market. He asks us to hold that the defendant really had no intention of offering delivery on that date and that, in fact, the goods were not in a fit condition to be delivered on that date. On this latter point, the plaintiff admittedly has no knowledge of his own and the other evidence in the ease shows that the indigo was dry and fit for packing. Again, we are not satisfied with the plaintiff's explanation of his failure to go to Chidauli on the 5th of November, the date which was fixed by the first defendant. As we have pointed out, the only answer he could give regarding this failure was that, on the date in question, he could find no time.
28. In a case like this, in which there were mutual obligations on the parties, it was for the plaintiff to show that, on the date fixed for performance of the contract, he was ready and willing to perform his part of the bargain. It may perhaps not have been necessary for him, to prove that he made an actual tender of the money but it was, at any rate, incumbent on him to show that he had made arrangements for the purchase-money and was in a position to hand it over to the first defendant as soon as he was satisfied that bulk of the goods was in accordance with the sample and that everything was satisfactory. He admittedly made no attempt to compare the bulk of the goods with the sample or, in fact, to do any other thing which he was bound to do under the terms of the contract. As we have said, the impression which is left upon us after a perusal of the evidence in the case is that the plaintiff was in embarrassed circumstances and could not find the money, Rs. 11,000, at the time when it was wanted. We are satisfied, therefore, that, though the judgment of the Court below is open to criticism on certain other grounds which we need not pause to consider, the learned Subordinate Judge was right in holding that the plaintiff had failed to prove his case that the defendant was guilty of breach of contract. In these circumstances, the suit was rightly dismissed and this appeal, therefore, fails and is dismissed with costs including in this Court fees on the higher scale.