R. Garth, C.J.
1. I think that this case is abundantly clear. It seems to me that the learned Judge is right on both points, and that we should answer the questions referred to us in accordance with that view. I think that the defendant should pay the costs of this reference.
2. I am of the same opinion. I would only add a few words. It appears to me that what we have first to do is to ascertain the terms of the contract. The contract is for the delivery of 7,500 bags of castor seeds which were to be shipped 'per steamers,' and then the Contract goes on to state, 'shipment 2,500 bags per S.S. 'Moharaja,' now expected on Madras Coast, 2,500 bags in December 1881 and 2,500 bags in January 1882.' 'Terms cash on delivery, which is to be taken from steamer's side, Calcutta, or from jetty on arrival of steamer.'
3. This is the whole of the contract so far as it is material, and taken altogether it seems to me abundantly clear from it that so far as the two latter portions are concerned, the 2,500 bags are to be delivered in December and 2,500 bags in January, having been shipped by 'steamers,' which, I think, clearly means shipped by any number of steamers, provided that the instalment sent by each steamer is a reasonable one, and then delivery is to be taken from the ship's side or from the jetty on arrival of each ship, and cash paid on delivery.
4. This seems to me to be a perfectly clear contract, and it agrees as closely as possible with the contract in the case of Brandt v. Lawrence ( L.R. 1 Q.B.D., 344) in which case also the option of shipping in several instalments was given, and yet each instalment was to be received on arrival and paid for on delivery. On that construction of the contract, it follows of necessity that the plaintiffs were entitled to tender the goods as they did tender them, and that the defendant was bound to receive and. pay for them.
5. With regard to the case of Reuter v. Said L.R. 4 C.P.D. 239. It has no very close bearing on this case. The question in that case, so far as it concerns the present, was whether the contract there made was severable, whether it might be split up and the person who entered into it might refuse to perform or disable himself from performing a portion and yet insist on performing the rest. The Court there held that a contract cannot be split up in that sense. The question in this case is not whether the contract may be split up, but whether the performance of it may be divided, and that depends on the terms of the contract. I concur, therefore, in the mode in which it is proposed to answer the questions referred to us.