1. While I feel convinced that the parties did not at the time of entering upon the contract intend that actual physical delivery should be taken by each of the firms in turn, for such an arrangement would cause unnecessary delay and trouble, yet I am not prepared to differ from my learned brother's opinion that they have not given effect to this intention in the contract, and consequently I agree in the order proposed.
Venkatasubba Rao, J
2. The plaintiffs have instituted this suit for recovery of Rs. 6,250 with interest thereon on the ground that the said sum was paid by them as advance in respect of a contract entered into with the defendants, and that the plaintiffs are entitled to a refund of the amount, the defendants having broken the contract. There was an oral agreement on the 8th of August 1918 and the terms of it were subsequently reduced to writing in what is known as var-thamanam letter bearing the date 28th of October 1918 which the defendants sent to the plaintiffs The contract was for the sale of 50 bales of yarn containing 80 bundles each and the price was settled at Rs. 14-8 per bundle. The goods are stated to be those which the defendants had agreed to buy from Mr. Lakshmana Aiyar who himself had contracted to purohase them from Messrs. Rama-chari and Sons who in their turn had placed an order for them with the Madura Mills. The varthamanam refers to the writing evidencing his contract between the defendants and Mr. Lakshmana Iyer and it then recites the fact that the defendants received from the plaintiff earnest-money amounting to Rs. 6,250 at the rate of Rs. 125 per bale.
3. The most important terms of the contract, on a construction of which the decision of this Case turns, are given below:
On the said 50 bales being received by R.V. Ramachari and Sons and then from them by R.G. Lakshmana Iyer and Sons and then from them by us, we shall then and there send to you advice of their arrivals. On the very date of receipt of such advice, you shall pay the balance left after deduoting from the amount of value of the bale or bales calculated at the above rate of Rs. 14-8, the advance of Rs. 125. per bale free from interest and obtain delivery of the bale or bales. In default, you are liable to pay the damages, costs, etc.. inourred thereby, If on reoeipt by us of advice of the arrivals of bale or bales we fail to give information thereof to you or to make delivery of the bales for which money is paid, we are bound to pay to you the damages, etc., thereby inaurred by you.
4. The material facts are these. The defendants gave the plaintiffs three notices of arrival, the first relating to 4 bales, the seoond to 2 bales, and the third to 3 bales, and they were dated the 1st of November, the 4th December and the 5th of November 1918 respectively Of course, the notices are not strictly notices of arrival, but I use the expression as it had been throughout used at the trial, in the judgment of the lower Court and in the course of the arguments before us. I shall reproduce below one of the three notices as the terms of it have an important bearing upon the issue to be decided and I may add that the other notices are more or less in the same terms:
As M.R. Ry. R.C. Lakshmana Iyer and Sons have given us intimation through letter that out of the bales mentioned in the vartha-manam letter written and given to you by us on the 12th instant, 4 bales arrived, 2 bales on the 8th instant and 2 bales on the 13th ; you should without delay bring and pay money for the said 4 bales and take delivery of the said bales.
5. It is admitted that the defendants did not send the plaintiffs arrival notices in respect of the remaining 41 bales. It is further admitted that the defendants did not take delivery of any of the bales from their vendor Lakshman Iyer. It transpires in evidenee that the Madura Mills kept in stock 9 bales on account of Ramachari and Sons from the 21st 6th October 1918 to 31st October 1918; that the said bales were not taken delivery of; that eventually the Mills cancelled the contract and sent their purchasers letter of cancellation, dated 3rd June 1919, and that the Mills did not obtain any sum for damages from their purchasers, the said Ramachari and Sons. The defendants admit that they made no attempt to take delivery of the 9 bales in question after the receipt by them of arrival notices from their own vendor. Nor did the defendants make any attempt to get the balance of 41 bales.
6. It must be stated that the plaintiffs allege in the plaint that they tendered the price and asked for the delivery of the 9 bales. This issue of fact was decided against plaintiffs by the Subordinate Judge and it was argued before us that this finding is wrong. Again, the defendants alleged that the plaintiffs on the receipt by them of the arrival notices represented that they did not want the bale and requested that the Contraot might be cancelled agreeing to pay damages and that the defendants accordingly cancelled the contract. The lower Court found that the case set up by the defendants was false, and their Vakil did not make any serious attempt to agrue that this finding was wrong.
7. On these facts, the question to be determined is : Did either party break the contract, and, if so, who broke it? By the contract, the defendants agreed to give notices of arrival. But the contract expressly provides that notices of arrival shall be given by the defendants only after the goods are Received by them or, literally translating the Tamil words, 'after the goods come to them.' The oontraot contemplates the receipt of goods by Ramachari and Sons and their being passed on to Lakshmana Iyer and then the defendants getting the goods. The defendants are to give notices of arrival only after they receive the goods. It is not sufficient under the contract that the defendants were in a position to say, 'our vendors have given us notices of arrival and you the plaintiffs are therefore bound to pay the price and take delivery of the goods.' Under the contract, the giving of arrival notioes is a condition precedent and no obligation on the part of the plaintiffs arises till such notices are given and it is equally clear that no valid arrival notices can be given till the defendants receive the goods ; or, in other words, till the goods 'come to the defendants.' It is true that in several contracts of a similar kind which have come before the Courts there is not to be found such a provision as this. But this fact cannot affect our judgment. We must construe the particular contract before us and I do not think we oan ignore a very clearly expressed term on the ground that it is not unusual for yarn dealers to enter into contracts containing different stipulations. The varthamcmam says
On the said 50 bales Coming to K.V. Ramachari and Sons and then coming from them to Lakshmana Iyer and Sons and then coming from them to us we shall then and there send you advice of their arrivals.
8. This clause is put in the forefront of the contract and we cannot lightly impute to business men an intention to treat words in a business document like this as conveying no particular meaning. In other words, the statement relating to the receipt of the goods is not merely an integral part of the contract but is a condition precedent. The intention of the parties, as appears from the writing, was certainly not that the defendants could, without taking delivery of the goods, insist upon performance of the contract on the part of the plaintiffs. The defendants suggested that if the plaintiffs went up with the money to the Madura Mills and paid the price of the 9 bales, delivery could have been obtained; that is to say, that the plaintiffs could have paid the price on behalf of Ramachari and Co., and got the goods. This is not what the parties intended. If that was the intention, the parties would have said so and as a fact many contracts entered into at this period contained such a stipulation. I am, therefore, of the opinion that the defendants committed a breach of the contract by giving arrival notices which are not in accordance with the, terms of the agreement.
9. This may be looked at, again, from a slightly different point of view. The defendants agreed to supply the bales which they themselves were to receive from their vendors. The term relating to the receipt of the goods is a part of the description of the goods and that term is a condition. In Bowes v. Shand(1877) 2 A.C. 455 : 46 L.J.Q.B. 561 : 86 L.T. 867 : 25 W.R. 780a contract for goods to be shipped during the months of March and April was construed according to the literal meaning and goods partly shipped in February for which bills of lading were then signed were held not to satisfy the contract. Lord Blackburn observed:
If the description of the article tendered is different in any respect it is not the article bargained for, and the other party is not bound to take it. The parties have chosen, for reasons best known to themselves, to say; we bargain to take rice, shipped in this particular region, at that particular time, on board that particular ship, and ... it must be shows not merely that it is equally good, but that it is the same article as they have bargained for, otherwise they are not bound to take it.
10. In Behn v. Burness, (1868) 8 B & M 751 : 32 L.J.Q.B. 204 : 9 Jur. 620 : 8 L.T. 207 : 11 W.R. 496 : 124 R.R. 794 : 122 E.R. 281 action was brought upon a Charter Party dated the 19th day of October 1860, in which it was agreed that Behri's ship'now in the port of Amsterdam' should proceed to New Port and there load a cargo of coals which she should carry to Hong-kong. At the date of the contract the ship was not in the port of Amsterdam and did not arrive there until the 23rd. When she reached New Port, Burness refused to load a cargo and repudiated the contract. Thereupon action was brought and the question for the Court was whether the words now in the port of. Amsterdam' amounted to a condition the breach of which entitled Burness to repudiate the contract, or whether they only gave him a right, after carrying out the contract, to sue for such damages as he had sustained. The Exchequer Chamber held it to be a condition. This principle has been recognised in numerous other English decisions and it is scarcely necessary to refer to them ; it is sufficient to say that this rule was adopted by this Court in Sivarama Aiyanv. Subbiah and Sons 70 Ind. Cas. 346 : 15 L.W. 9 ; A.I.R. (1922) (M.) 28 where it was held that a tender of goods was bad on the ground that the vendors had purchased them at prices different from those named in the contract although the goods answered the description in respect of quality, mark and quantity.
11. On the defendants' admission that they did not give any arrival notices in regard to the 41 bales the plaintiffs are entitled to the return of the advance in respect of them. In regard to the 9 bales, as I have said, the plaintiffs are also entitled to the advance paid in respect of them, the defendants' notices being bad and the defendants being guilty of the breach. The learned Vakil for the defendants contended, on the strength of the last clause in the contract.that they did not commit a breach. I am unable to accept this argument. The last clause does not certainly supersede the earlier clauses but it is only supplementary. It presupposes and does not dispense with, the obligation on the part of the defendant to send proper arrival notices but it further provides that bales shall be delivered on payment of cash, thus delivery and payment being regarded at that stage as concurrent acts.
12. I am of opinion that the Subordinate Judge's decision is correct and I would, therefore, dismiss the appeal with costs.