1. The contract between the plaintiffs and the defendants was for the sale of 25 bales of yarn to be delivered at the plaintiff's godown at Madura. The defendants paid an advance of Rs. 1,250. The price at which the goods were to he sold was Rs. 13-2-0 per bundle, that is, art the rate of 89 bundle to the bale, Rs. 1,050 per bale. No time was fixed for performance, but the terms of the contract were that the plaintiffs were to intimate the arrival of the bales from the Madura Mills and that the defendants next day were to bring the price and take delivery of the goods. These terms are contained in a letter (E.A.) written by the plaintiffs agent to the defendant. The defendants accepted 3 bales out of the total consignment of 25 bales, and the present suit relates to the remaining bales. As regards 7 of the remaining bales, the plaintiffs gave notices in their letters Exs. D, G, G1 and G2, but the defendants failed to take delivery. The Subordinate Judge awarded damages to the plaintiffs as regards these 7 bales, calculating the prevailing price at, Rs. 9-4-0, at the difference between that and the contract rate of Rs. 13-2-0. In respect of the remaining 15 bales, the plaintiffs' suit was dismissed.
2. The defendants appeal and the plaintiffs file a Memorandum of Objections. As regards the 7 baits, the arrival of which the plaintiffs announced to the defendants, the defendants' vakil's argument is that there was no compliance with the terms of the contract, because the plaintiffs failed to prove that they had goods in their hands available for delivery. On receiving a letter of advice the defendants were entitled to proceed to the plaintiffs' godown and inspect the goods before taking delivery. It has not been established in the present-case that the goods never reached the plaintiffs' godown, or that they would not have been available if the defendants had applied for delivery. The defendants do not say that they went and saw the plaintiffs' godown and found it empty. The conclusion of the Subordinate Judge that the defendants failed to substantiate this contention that the letters of advice were not in accordance with the terms of the contract appears to be correct.
3. As regards the rate at which damages were calculated, the evidence of P.W. 1 is that the price fell in October to Rs. 12 and Rs. 12-8, and in November to Rs. 9 and Rs. 9-8, P.W. 2 says that the price on the 8th of Masi, that is, on the 19th February, was Rs. 9-4. As the price in November, about the time when defendants failed to take delivery had fallen, and then varied between Rs. 9 and Rs. 9-8, I think that the Subordinate Judge was right in taking Rs. 9-4 as the mean between these prices, and in calculating damages on the difference between that rate and the contract rate and that he was not misled by referring to the price prevailing at the time when the plaintiffs treated the defendants as having broken their contract through the letter, Ex. H, of February 17, 1919. The plaintiffs are not entitled to damages in respect of the remaining 15 bales in respect of which they gave no notice of arrival. Defendants also are not entitled to damages in respect of these 15 bales as they suffered no loss.
4. In the Memorandum of Objections, the plaintiffs have put forward the plea that the defendants, having failed to take delivery of 7 bales, showed by their conduct that they had repudiated their contract even as regards the remaining 15 bales. The only support for this contention is the letter (Ex. H) written by the plaintiffs to the defendants, in which they said that, if the defendants failed to take delivery of the 7 bales within 2 days, they would be deemed to have broken the contract, and added that even as regards the remaining 15 bales which were yet to arrive, they would calculate damages at the same rate. Defendants did not answer this letter and it is now suggested that their conduct in not answering it amounted to a repudiation of the whole contract, when it is coupled with the fact that the market was falling and that they bad not kept their contract in respect of any portion of the goods which they contracted to buy. The Subordinate Judge held in respect of this portion of the case, that the plaintiffs failure to give notice with respect to 15 bales was really a breach of contract on their part, and that they could not claim damages when they failed to perform the first step in the performance of their part of the contract. I see no reason to differ from this conclusion. I think that it would not be justifiable to infer merely from the fact that the defendants sent no reply to Ex. H that they agreed to treat the whole contract as no longer existent. It is evident from Ex. 1 that there was no booking and no despatch of goods from the mills after 20th November 1918, As time for performance of this part of the contract had not arrived, I think that until the plaintiffs gave the defendants notice that they had available 15 bales ready for delivery to them, or unless they informed them that if they failed to reply to their letter, they would treat the whole contract as having been broken by them, they had no right to presume from their conduct that the defendants would not take delivery of the bales that remained to be delivered, whatever market rates might be prevailing at the time of tender.
5. The appeal and the Memorandum of Objection are dismissed with costs.
6. I agree, and will add a few words. The first point argued by the learned vakil for the appellants is that the plaintiffs have not substantially complied with the terms of the contract, when they wrote letters Ex. D, G, G1 and G2 as they had not the bales in their godown. When we examine the contents of Ex. 1, the ledger kept by the Madura Mills, it is not clear that plaintiffs had not the goods ready when they addressed these letters, though perhaps the contention is true as to Ex. G1; but assuming they had not the goods in their godown, I do not think that possession of the goods in the godown is a condition precedent to their intimating to the defendants asking them to take delivery of the goods. It is enough if the plaintiffs had practically the goods at their disposal in the custody of the Mills. Exhibit A cannot be construed as if the words 'arrival of the bale or bales' amount to a description of the goods similar to the words' July or August Shipments in Bowes v. Shand (1877) 2 A.C. 455. Mr. C.V. Ananthakrishna Iyer relied on a decision in Ramier v. Rana Cheena Mana Navanna Oona & Bros. (1924) 19 M.L.W. 654. We observe that Phillips J., agreed to the conclusion reluctantly; and he later differed from that conclusion in A.S. No. 223 of 1923. A similar view was taken by the Chief Justice and Srinivasa Aiyangar, J., in A.S. No. 60 of 1922. It is true that for a plaintiff to succeed he must prove first his readiness and willingness to perform the contract which no doubt includes his capacity to perform the contract: vide my observations in A.S. No. 96 of 1923. It is clear on the facts of this case that the plaintiffs were not only ready and willing to perform the contract, but able to perform the contract as regards the 7 bales. That being sc, this point fails.
7. I have nothing to add to my learned brother's judgment on the second point.
8. As regards the Memorandum of Objections it is difficult to construe Ex. H as a notice of cancellation of the whole contract by the plaintiffs. The first part of the letter deals only with the contract so far as it related to the 7 bales, and only towards the end of the letter reference was made to the remaining 15 bales. It is difficult to construe this letter as giving notice to the defendants that they will be deemed to have broken the whole contract. Even assuming that the defendants may be deemed to have broken the whole contract, certainly it cannot be said that the letter amounts to a cancellation of the contract by the plaintiffs on account of the breach by the defendants, even assuming that the plaintiffs are entitled to do 80 which is doubtful, having regard to the case of Simpson v. Bripplin, R. (1873) 8 Q.B. 14. Seeing that the plaintiffs offered at the most 10 bales from July to February one cannot assume that the remaining 15 bales were going to be manufactured. One cannot assume that they will be ready before May or even within another 10 months. It is possible that the market may become a rising market. I do not say there may not be cases in which, with reference to the facts of the particular case an implied repudiation of the whole contract might be inferred from refusal of part-performance of the contract. A.S. No. 223 of 1923 is a case in which the goods were ready in Subbier's godown, and there was nothing more to be done for getting the goods. I do not see that Section 39 of the Indian Contract Act helps them; for it is doubtful whether this is a contract which could be said to have been broken in its entirety by the refusal to accept the 7 bales. Secondly, it is not clear from Exhibit H that the promisee put an end to the contract. This section cannot therefore help. I agree with my learned brother that the Memorandum of Objections should be dismissed with costs.
9. I agree with the order proposed by my learned brother.