1. The case for the plaintiff is that the 1st defendant entered into a contract with him on the 8th of April 1909 to supply 151 bales of cotton twist of a particular quality manufactured by the Raipur Mills within 75 days of the contract, that the 1st defendant was one of the partners of a firm of brokers in Ahmedabad of which the 2nd and 3rd defendants are the remaining members and that as the defendants failed to perform the contract as agreed upon, the plaintiff is entitled to damages from them.
2. The defendants raised various contentions. The 1st defendant denied the suit contract in toto. All the defendants demurred to the jurisdiction of the Court and contended that the 1st defendant was a minor at the time of the contract, that he was not a partner, that he had no authority to bind the other partners. The most important defence is thus stated: The yarn mentioned in the plaint cannot be had at Ahmedabad and so it was impossible to perform the contract and, therefore, the contract is void according to law.'
3. On the subsidiary issues raised in the case, the lower Appellate Court came to the conclusion that the 1st defendant was a major when the contract was entered into, that he was a partner with the other defendants and as such had authority to bind the partnership and that the Vizagapatam Court had jurisdiction. These findings have not been contested in second appeal.
4. The Courts below decided the 3rd issue ' whether the suit contract was impossible of performance and as such it is void' in favour of the defendants. In this Court, Mr. Srinivasa Aiyangar contended that the conclusion arrived at by the learned District Judge on this issue does not dispose of the case. The District Judge has held that the yarns mentioned in Exhibit A were not available at Ahmedabad Raipur Mills at the time of the contract Exhibit A.... As the Raipur Mills could not supply the yarn desired by the plaintiff, the contract was impossible of performance and, therefore, void.'
5. As we stated at the outset, the contract gives 75 days to the defendants to perform the contract. Consequently what the learned Judge should have considered is, not the impossibility of performance on the 8th of April 1909, but within 75 days of that date. Even then, the liability will not necessarily be at an end. It will have to be shown that both parties were aware of the implied term as to impossibility. See per Lord Esher in Emanuel v. La Compagnie Fermiere De L' Etablissement Thermal Be Vichy (1889) W.N. 150. As we are not dealing with the case finally, it is not necessary to refer to the evidence which has been let in. However, attention may be drawn to Exhibit P, which shows, that the defendants could have obtained from the Raipur Mills yellow and flower ties. Reference may also be made to Exhibit H. It is not disputed that the Mills did manufacture twist of the quality mentioned in Exhibit A. We have referred in passing to this aspect of the case, because what the Courts have to ascertain ^ whether it was practically impossible for the defendants to supply the goods. The decision in Inder Pershad Singh v. Campbell 8 C.L.R. 501 shows that the question for consideration must be whether it was reasonably possible to perform the contract. The language of the first part of Section 56 of the Indian Contract Act, which speaks of an act impossible in itself', suggests that the impossibility which would relieve the promisor from liability must not relate to circumstances which render the performance impossible, such as failure to keep to the time, or difficulties which may have to be experienced in carrying out the terms. The second part of the section refers to some of these contingencies. It was pointed out in Moss v. Smith 19 L.J. C.P. 225 : 82 R.R. 307 that practical impossibility will excuse the promisor, though 'the contract may be physically possible of performance. See also Gopalasami Pillai v. Chidambaram 29 Ind. Cas. 151. In Jones v. St, John's College Oxford 6 Q.B. 115 Hannen, J. puts the case against the promisor very strongly: Undoubtedly, it may be an unwise or unusual contract to enter into, but there is no reason why a man should not enter into such a contract.' All the learned Judges who took part in this case held that the promisor must perform or pay the penalty. This aspect of the case has not been considered by the learned Judge, The evidence on the question has to be examined and for that reason we must remit the case for a finding to the lower Appellate Court.
6. Mr. Govindaraghava Aiyar addressed a long argument to us on the meaning to be attached to the finding of the learned District Judge. His contention was that the contract was subject to a condition that in case the yarn was not available from the Mills within 75 days of the date of Exhibit A, it was not to be insisted upon; and that the finding of the Courts below is to that effect. We are unable to accept this contention. In the first place, there is not a trace of this contention of a condition precedent in the pleadings. It is not one of the issues in the case. The learned Judge in finding on the 3rd issue seems to discuss the question whether the parties contemplated the possibility of the yarn not being available at the agreed time. His inclination apparently is that the performance of the contract depended on the availability of the yarn. He does not say how far the minds of each of the parties were directed to wards this contingency. As there was no issue on the question and as the attention of the parties was not drawn to it at the time of letting in evidence, this consideration should not be allowed to influence the decision in the case.
7. The real question for consideration is whether it was practically impossible for the defendant to get the counts of yarn mentioned in Exhibit A spun at the Baipur Mills and marked with special ties within the period allowed by the contract. We are clear that the elephant mark was not a matter for the Mills.
8. We must, therefore, remit the following issues for decision:
(a) Was it practically impossible to supply the goods to the plaintiff within the time mentioned in Exhibit AP
(b) If not, have the defendants rendered themselves liable to pay any, and if so, what damages?
9. Time for findings two months and seven days for objections.
10. In compliance with the order contained in the above judgment, the District Judge of Vizagapatam submitted the following
Findings.-- * * * *
4. I must hold, therefore, that defendants have failed to make out that it was practically impossible to perform the contract Exhibit A within the time specified therein.
5. Issue 2.--As the contract was not practically impossible of performance within the time allowed, defendants are liable in damages to the plaintiff for not having performed it. Plaintiff has claimed Us. 3,586-4-0, which amount admittedly concludes both damages and loss of profits.
6. It is admitted that the claim for loss of profits is not sustainable. Damages have to be ascertained by taking the price of the twist at the date of breach of contract, i. e., 22nd June 1909, There is no evidence as to what the prices were on that date, but P. W. No. 3 says that on 31fch June 1909 the price of No. 13 red tie was Rs. 3-11-6 and Rs. 3-12-0 and that No. 20 yellow tie was Rs. 4-0-6. No. 13 in the contract A was Rs. 3-1-6, so if we take the former rate, difference would be 7 annas , or 7 annas 6 pies per bundle. If, on the other hand, we take the No. 20 yellow rate and apply the rule that there is a difference of one anna in rate for each number (evidence P. W. No. 3), then Nos. 11 and 1 If yellow tie would be Rs. 3-7-6 and Rs, 3-8-0 respectively, a difference of 5 annas per bundle only.
7. I think that as regards the two yellow tie numbers the yellow tie rate for No, 20 maybe taken to determine therate of damages and that as regards the other two numbers (13 and 14) the No. 13 red tie rate may be taken. At that rate plaintiff would be entitled to damages at Rs. 12-8-0 per bale on 120 bales and at Rs. 17-8-0 per bale on 31 bales in all Rs. 2,042-8-0 on the 151 bales. I find accordingly.
11. This second appeal coming on for final hearing after the return of the findings of the lower Appellate Court upon the issues referred by this Court for trial, the Court delivered the following
12. We accept the findings, reverse the decrees of the Courts below and give a decree to plaintiff for Rs. 2,042-8-0 with 6 per cent, interest thereon from the date of the plaint till payment.
13. Parties will pay and receive proportionate costs throughout.