John Wallis, C.J.
1. This is an appeal from the judgment of Courts-Trotter, J., awarding the plaintiffs damages for non-acceptance of goods sold. The contract provides for the sale of 20 bales 'Home Shipment May-July 1918 (our contract price Rs. 35-7-0)' and for five bales 'Home Shipment February, March and April 1918 four contract price Rs. 34)' and that on arrival, the defendants are to be advised and to pay and take delivery. There is a provision that the other terms and conditions are in accordance with Messrs. W.A. Beardsell's contract,' Messrs Beardsell being the importers and vendors to the plaintiffs. Under Beardsell's contract, each instalment is to be treated as a separate contract, and Messrs. Beardsell are relieved from liability for non-shipment owing to any of the causes specified and buyers are not to be entitled to cancel the contract owing to delay caused by any of the specified causes, 'provided that such delay in shipment shall not exceed three months.' 'The buyers also are debarred from objecting to the goods being shipped prior to the contract. It is in the light of these provisions of Beardsell's contract that we have to construe this additional provision in the contract between the plaintiffs and defendants in the following terms: 'Please note that you have to take delivery of the goods as received by us and, we are not responsible for late shipment or non-shipment of the goods, or part of the goods.' The learned Judge in effect held that this sentence, read as a whole, imposed upon the defendants a liability to take the goods, as and when received by the plaintiffs without referring to the date of shipment. Mr. Krishnaswamy Aiyar has contended before us that this construction is wrong; that the sentence must be read as two separate sentences; that the second part of the sentence merely relieves the plaintiffs from liability to a suit for damages for the late shipment, and that the first part of the sentence only obliges the defendants to take the goods, if they were shipped in time, or come within the clause as to late shipment in Beardsell's contract. This, however, has already been provided in an earlier part of the contract. Then he suggested that these words were put in to oblige the defendants to accept the instalments as they arrived; but this they were already bound to do owing to the provision to that effect in Beardsell's contract. The result is that, read in this way, the first part of the sentence is mere surplusage and adds nothing to the contract. This goes to show that the sentence should be read as a whole and not as containing two separate and independent provisions. Reading it as a whole and in the light of the uncertain conditions which prevailed in February 1918, the date of the contract, and the fact that to the defendants knowledge the plaintiffs were not importing the goods themselves, but were purchasing them from Messrs. Beardsell, I think the natural business meaning of the sentence is that the defendants were to take delivery of the goods as they were received by the plaintiffs who were not to be responsible for late shipment; not only in the sense that they were not to be liable in damages, but also in the sense that they were not to be liable to have the goods rejected on the ground of alleged late shipment. It would, I think, be making the plaintiffs responsible within the meaning of the sentence for late shipment to hold that such late shipment would entitle the defendants to cancel the contract and throw the goods back on to the plaintiff's hands. I think the effect of the sentence was to oblige the defendants to accept the goods as they were received by the plaintiffs and to disentitle them to raise objections on the ground of late shipment. Mr. Krishnaswami Aiyar argues that they construction virtually does away with the provision specifying the time of shipment, but it still remains true that the goods were 'May-July 1918' and ' February, March and April 1918' shipments in the sense that Beardsell and Co.; had contracted for such shipments with the Home shippers and with the plaintiffs, who again had contracted with the defendants, though the uncertainties of the time made it impossible to guarantee the exact performance of this particular stipulation and necessitated the provisions waiving insistence on a strict compliance with it.
2. As regards 6 out of 25 bales, the defendants in their written statement set up that the tender was not according to the contract, because the bales tendered had been purchased by the plaintiffs from Messrs. Beardsell at prices different from those named in the contract. The plaintiffs in this Court sought to rely on a provision in Beardsell's contract that such contentions must be considered waived if not taken within one month after arrival. If the plaintiffs intended to rely on the ground in answer to the defendants' plea, they should have filed an additional written statement, or at least taken an issue on the question. As it is, we cannot allow the plaintiffs to take the point for the first time in appeal. The plaintiffs also raised the contention, which the learned Judge upheld, that it Was not open to the defendants to raise this contention for the first time in the written statement when they had already wrongfully repudiated at the contract on another ground which has failed citing. Braithwaite v. Foreign Hardwood Company (1905) 2 K.B. 543. We are not, however, satisfied that the defendants letter of the 1st May 1919, which is relied on for the plaintiffs, can be said to amount to a definite repudiation of the contract. Though the defendants talk of refusing to perform, if the shipment turns out to have been late, they ask for further information and speak of sending a final answer when it arrives. I am not satisfied that the Mater amounts to a clear repudiation, such as is required in accordance with the decision in Consorzio Veneziano Di Armamento Navigazione v. Northumberland Shipbuilding Co. (1919) 88 L.J.K.B. 1194 ; The rule in Braithwaite's case (1905) 2 K.B. 543 is, therefore, inapplicable. The mistake in the tender was due to the slip on the part of Messrs. Beardsell and the matter could have been set right and a due tender made, within time, if the plaintiffs' attention had been called to the mistake. Still, the tender of the 6 bales was not according to the contract, and I think that the defendants were not bound to take these bales.
3. The only remaining question is as to the date which should be taken to be the date of Israeli for the purpose of the, assessment of damages. As to this, the learned Judge finds that the letters conclusively show that both parties agreed to treat the contract as still capable of performance at a very much. Latter date than the tenders after arrival. The correspondence and especially the plaintiffs' letter of the 6th March 1919, the statements in which were not questioned by the defendants show that the defendants had been obtaining extensions of time to take delivery. On the 14th March the plaintiffs sent to the defendants a Vakil's notice calling on them to pay and take delivery of the bales within two days. It is quite clear that the time for performance was extended down to the 17 the March by mutual consent. The letters of the 18th March and 28th March may be read as a request for grant of further time, but I do not think the plaintiffs can be considered to have granted any further time beyond the 1st April, the date mentioned in the plaint, and consider that the damages should be assessed with reference to the market prices as at this date instead of the 1st May. The decree will be varied accordingly by disallowing the damages as to the 6 bales and the case will have to be remitted for assessment of damages, unless the parties can agree as they did in the lower Court with reference to the 1st May. The defendants will be entitled to credit for the amount paid on account and to recover any balance that may be found due, if the damages are less than such amount. The decree will be varied accordingly. Parties to pay and receive proportionate costs of the appeal. Memorandum of objections is dismissed.
4. The subject matter of the contract falls (from the point of view of plaintiff's performance of it) into three parts. Five bales consisting of three bales tendered by the plaintiffs in their letter of 18th May 1918 and two by their letter of 13th June, 1918. Six bales tendered by their letter of 4th December 1918.
5. Fourteen bales consisting of ten tendered by their letter of 3rd January 1918 and four, by their letter of 4th March 1919. As to item No. 1 the defendants by their letter of 23rd November 1918 intimating willingness to, pay interest accepted the. Plaintiffs' offer of performance and there is no scope for any argument on their part with reference to this item.
6. As to item No. 2, it cannot be said that the tender of goods priced higher than at the contract price is a performance of the contract and does not come within the rule in Bowes v. Shand (1877) 2 A. C 455 The fact that the wrong tender was due to a slip on the plaintiffs' part is immaterial. As the plaintiffs did not give any reply to the defendants' letter of 1st May 1919 but, on the other hand, filed their suit on the next day, it cannot be considered that the time for the performance of the contract was extended beyond, 1st April 1919, to which date it may certainly be deemed to be extended by reason of the letter of defendants' Vakil, dated 28th March 1919. The plaintiffs could have tendered goods of the correct description up to 1st April 1919 but they did not do so though they had opportunities of doing so, on 3rd January 1919 or 4th March 1919. Nor have the defendants refused within 1st April 1919 to accept goods, so as to make Braithwaite's case (1905) 2 K.B. 543 applicable and thus justify non-performance on the part of the plaintiffs. The plaintiffs did not rely in the Court below on any other defence to justify it. The plaintiffs are, therefore, not entitled to any relief with reference to this item.
7. The question of the construction of the clause relating to late shipment arises only with reference to the third item. As to this, I agree with the reasons and conclusions of His Lordship the Chief Justice in his judgment just delivered.
8.The result is, I agree with the order proposed by him. Proportionate costs of the appeal.
9. The memorandum of objections has not been argued and is dismissed.