P. O'Kinealy, J.
1. In this case the plaintiffs sue to recover the sum of Rs. 852-8-0 as damages for the neglect and refusal of the defendants to take delivery of 50 tons of linseed which they had contracted to purchase on the 29th of September 1896; and to recover the sum of Rs. 213-4-6 as damages for the neglect and refusal of the defendants to take delivery of 100 tons of wheat which they had contracted to purchase on the 23rd of October 1896. The contracts were made, the plaintiff's alleged, by the defendants with one Pursottom Lall, who was the seller of the goods, and after the date of the neglect and refusal relied on by the plaintiffs, Pursottom Lall, on the 13th of November 1897, assigned his causes of action in respect of both contracts to the plaintiffs for valuable consideration. The defendants are sued as partners in the firm of Hurnand Roy Fulchand, and the only ground upon which it is sought to make Sewmukh Roy liable is as a partner in that firm. I may say at once that the evidence before me is wholly insufficient to show that he is now, or was at the time the contracts were made, a partner in the firm and, therefore, as against him (he was not represented at the trial) the suit must be dismissed with costs.
2. The third paragraph of the plaint sets forth the circumstances upon which, in addition to the contracts and assignment, the plaintiffs rely in support of their claim. It is as follows: 'That on or about the, 26th and 31st days of May 1897 the said Pursottom Lall, in accordance with the said contracts, and in pursuance thereof, duly forwarded delivery orders in respect of the goods said under the said contracts to the defendants, and offered to deliver, and at all due times was ready and willing to deliver, the said goods to the defendants, but notwithstanding the defendants neglected and refused to take delivery of the said goods or any part thereof.'
3. In the third paragraph of his written statement the defendant Fulchand traverses every one of these allegations, but admits that 'the said Pursottom Lall tendered to this defendant certain railway receipts purporting to have been granted to one Hurdut Roy Chamaria and purporting to have been blank indorsed by him.'
4. The fourth and fifth paragraphs of the written statement are as follows: 'This defendant is informed and believes that the said Pursottom Lall was, at the dates mentioned in the last preceding paragraph, in insolvent circumstances, and that he was heavily indebted to, amongst others, the said Hurdut Roy Chamaria, and that the goods for which the said receipts purported to have been granted were the goods of the said Hurdut Roy Chamaria and not the goods of the said Pursottom Lall, and that he was not in a position to deliver or transfer the same to this defendant, and that the said Hurdut Roy Chamaria had not been paid for the said goods. This defendant was always ready and willing to take delivery of the said goods contracted for as aforesaid, and to pay for the same, and he offered to do so, and demanded delivery of the said goods, but the said Pursottom Lall refused to deliver the said goods, and only offered to this defendant the said receipts, and did not even show to this defendant or to any one on his behalf the goods for which the said receipts had been granted.'
5. It is not necessary to refer to a further defence, having reference to the assignment of the 13th of November 1897, as that was abandoned at the hearing.
6. Both the linseed and the wheat were to be delivered in April-May 1897, and the whole of the evidence given in this case relates to what took place during the last week of May 1897 between Pursottem Lall and Fulchand, and with reference to the deliveries under these contracts.
7. It appears from this evidence that in the latter end of May Pursottom Lall's affairs became involved, and he was deeply in debt. His gomasta Daman Lall, who was called, said he had paid off a sum of Rs. six lakhs by the end of May, and that he then only owed Rs. 60,000 or Rs. 70,000, and from the evidence of Hurnand Roy, it is clear that Pursottom Lall was in great difficulties. He had, in fact, no goods to tender under these contract sat any time before the 31st of May. I am satisfied that this was so from the evidence of Dumun Lall and Hurnand Roy.
8. There is no doubt that the market was a falling market, and Pursottom Lall was anxious to obtain from his buyers the difference between the market rate and the contract rate, if he could do so, without being under the necessity of making an actual tender of the goods, and he might have succeeded had he not been dealing with persons who knew fee had no goods to deliver, and who were determined not to accept anything short of the actual goods contracted for.
9. The first action taken in respect of these contracts was by Pursottom Lall on the 26th of May. On that day he wrote to the defendant enclosing one delivery order for both the wheat and the linseed, and requesting him to send a man to the Howrah station with money to take delivery of the goods.
10. On the 27th Pursottom Lall caused Babu A.K. Mukerjee, a pleader of the Small Cause Court, to write to the defendant pointing out that the delivery order had been sent to him, and that he had not taken delivery of and paid for the goods, and calling upon him to pay for and take delivery of them within twenty-four hours. The letter ends: In default of compliance my client will look to you for the difference between the contract rate and the market rate.' In the meantime the defendant had returned the delivery order to Pursottom Lall, enclosed in a letter, dated the 26th of May. (but which Pursottom alleged he did not receive till the 28th), demanding separate delivery orders in respect of each contract, and these delivery orders were delivered to the defendant on the morning of the 29th of May. They were addressed to Dumun Lall, who was the gomasta of Pursottom Lall, and are in this form:
Re Contract No. 29, dated 23-10-96, for 100 tons wheat.
Please deliver to Messrs. Hurnand Roy Fulchand 100 tons wheat under the above contract on receipt of the price thereof and of gunny bags.
Re Contract No. 1299, dated 29-9-96, for 50 tons linseed.
Please deliver to Messrs. Hurnand Roy Fulchand 50 tons linseed under the above contract on receipt of the price thereof and of gunny bags.
11. When these delivery orders were received by the defendant, his gomasta took them to Howrah station with money to pay for the goods. He says: I took more money with me than the amount that I calculated.' (Shown Exhibit B.) 'This is the calculation: It amounts to Rs. 11,602-8, on the contract for 1,092 bags of wheat, and Rs. 305-12 is the price of gunny bags.' (Shown D.) 'The price of the 50 tons linseed was Rs. 6,649-8-0 and Rupees 190-15-6 for the gunny bags. The total is not given. The wagon-number or pile number is always given in delivery orders. These particulars were not written on the delivery orders I got. I said to Dumun, 'give me the goods, give me fill the particulars,' that is, as to which shed they were in, where they were. He said he had no information as to the goods. Then I went to Mr. Farr's office and had a letter written.' This meeting with Luchminarain on the 29th at Howrah was put to Dumun Lall in cross-examination, but be denied that he saw Luchminarain at Howrah on that day. I have no doubt that this denial as untrue. Mr. Pugh's letter of the 29th of May contains a circumstantial account of that meeting, and had that portion of Mr. Pugh's letter been an invention of his clients, I have no doubt that Mr. Leslie would have said so in his letter in reply of the 31st May, and would not have confined himself to the colourless statement 'without admitting any of the statements contained, in your letter.' Dumun Lall, in cross-examination, was forced to admit that he was not in a position to point out the goods on the 29th, or give the wagon or pile numbers, and I have no doubt that he admitted his inability to do so to Luchminarain at Howrah on that day.
12. When Luchminarain went to Messrs. Farr and Pugh`s office on the 29th, he instructed Mr. Pugh to write the letter I have referred to above, in answer to the pleader's letter of the 27th, and in this letter, after detailing the interview at Howrah between the defendant's gomasta and Dumun Lall, he states this: 'Our clients' monib gomasta will attend at the Howrah station again on Monday morning, and will again take with him the cash for payment of the goods, and we have to request that the sellers will be good enough to be in attendance prepared to furnish the wagon, and pillar or pile numbers, and to point out the goods intended to be delivered to our clients under the contracts above mentioned in the usual and customary manner, and will be present when samples for refraction are drawn and sealed. Meanwhile we are instructed to return the two delivery orders, which we do herewith, with the request that the sellers will add thereto the wagon and pillar numbers and return the delivery orders to our clients before 5 o'clock this afternoon.'
13. These delivery orders were not returned to the defendant till the 31st, and then they were apparently in the same condition as before. They were enclosed in a letter from Mr. Leslie to Mr. Pugh, in which he says: 'We are instructed to say that if your clients will call at Howrah at any time between 12 noon and 5 P.M. to-day with the delivery orders, which we return herewith, our client Babu Pursottom Lall, or his agent Dumun Lall, will point out the goods and give your clients delivery. We may mention that our client has made complete arrangements with Babu Hurdut Roy Chamaria, one of the leading produce dealers, for delivery of the goods sold to your clients, and your clients will be expected to pay for and take delivery thereof. Should your clients, however, fail to pay for and take delivery of the goods in terms of the contract, our client will hold them liable for the difference between the market rate and contract rate, and for any other loss and damage, costs, charges, and expenses he may suffer or sustain by reason of your clients' breach of contract.'
14. This brings us to the 31st of May, the last day for giving delivery under these contracts, and the important question in this case is whether, as the plaintiff contends, Pursottom' Lall made an offer of performance of each of the contracts on that day, which the defendant was bound to accept, or whether, as the defendant contends, no such offer of performance was made to him at all. What took place at Howrah on the 31st is deposed to by all the witnesses who were called. Mr. Leslie, his assistant Debendra Nath Ghose, the Small Cause Court pleader A.K. Mukerjee, with Hurnand Boy and Dumun Lall were there, with Pursottom Lall, for the purpose of enabling the latter to perform his part of the contract. Mr. Pugh, with a Small Cause Court pleader and his clients' gomasta Luchminarain, went there, to enable the defendant to perform his part of the contract. It is strange that such an array of legal talent should be required to give and take delivery of 50 tons of linseed and 100 tons of wheat, if either party were really desirous of carrying out the contract, and I have no doubt that both parties were playing a game. Pursottom Lall wanted to put himself in a position to claim the difference between the contract rates and the market rates on the 31st of May without being compelled to deliver the goods covered by the contracts, and the defendant on the other hand, was prepared to insist upon the actual delivery of the goods because he believed that Pursottom Lall had no goods to deliver.
15. After the interview at Howrah Station between Dumun Lall and Luchminarain on the 29th, and Mr. Pugh's letter of the same day, it became clear to Pursottom Lall that he must endeavour to procure goods for the purpose of making a tender under his contracts, and in order to do this he came to an arrangement with Hurdut Roy Chamaria, the banian to Messrs. E.D. Sassoon & Co. on the 30th of May.
16. Hurdut Roy says of this arrangement: 'Before I went to Howrah on 31st May there had been an arrangement between me and Pursottom Lall Babu Pursottom Lall is a friend of mine. He requested me to give him some help in giving delivery of certain goods from Howrah, and he also requested me to go to Howrah for this purpose. The goods were wheat and linseed.. He said to me 'I have sold goods to certain parties. If my buyers ask me for delivery of the goods, will you deliver goods to them on my behalf?' I said 'all right.'' Then, afterwards, on the 31st, he made over railway receipts for linseed and wheat to Purasottom Lall. Probably some were made over on the 30th. The goods covered by these railway receipts were not his, but the goods, of the consignees who handed him the receipts on the 30th or the 31st of May. He knew nothing about these goods himself, and he could not swear that the goods covered by the railway receipts had arrived on the 31st of May, or when they arrived. The receipts were handed over to Mr. Leslie, and he says that at Howrah, Mr. Pugh came to him and said that he had come on behalf of Hurnand Roy Fulchand. He then tendered to Mr. Pugh seven separate railway receipts for 100 tons of wheat in all, and two railway receipts each for 25 tons of linseed. He says: 'I believe I told Mr. Pugh the goods were ready for delivery. Mr. Pugh went with his client upstairs to the Goods Superintendent. I waited for some time, and as Mr. Pugh did not return, I went upstairs and found Mr. Pugh in consultation with the Goods Superintendent. I asked him if he had not made up his mind yet. He said he wanted the railway receipts which were endorsed by Hurdut Roy Chamaria, who, I believe, was the consignee named in the receipt. He wanted these receipts to be endorsed to Pursottom Lall, and then endorsed by Pursottom Lall to his client. I told Mr. Pugh it was wholly unnecessary as the goods were deliverable on the receipts in their present condition, they being endorsed by the consignee. Mr. Pugh tendered me a bundle of notes, which he said was the price of the goods; showed me a bundle of notes, which he said was the price of the goods, which he said he would not pay till he had the railway receipts indorsed by the buyers.'
17. Mr. Leslie says the goods were in the Howrat Station at the time he tendered the receipts, and he again says: 'It is perfectly true, as stated in my day book, that the goods were ready for delivery, and would be delivered on production of the railway receipts.' But it is clear that Mr. Leslie is here expressing his belief, and is not speaking from actual knowledge. He was under the impression that the goods were 'Pursottom Lall's, and that they were sold to him by Hurdut Roy Chamaria on credit. That we know is not' the case. He says he was taken to the godown and was shown the bags for delivery, but he did not check the bags, and I think the result of his evidence is that he believed the goods had arrived from what he was told and from the entries in the railway receipts. From the entry in receipt No. 4 (Exhibit No. 1) it appears that the goods covered by that receipt were not available for delivery until the 2nd of June 1897. Mr. Leslie does not seem to have observed whether the freight was paid for the goods covered by the receipts which he tendered to Mr. Pugh; we know now that it was not paid in respect of any of the goods covered by the receipts which he tendered to Mr. Pugh, and which were put in evidence at the trial. Mr. Leslie made this further statement which I think is important in this connection: 'It was not suggested that the money should be paid before the receipts were given up: but I would have refused to give the receipts without the money. I said: 'Here are the receipts, give me the money, and I will give you the receipts.' I would not have parted with the receipts without getting the money. Hurdut Roy Chamaria had not yet been paid for the goods.' He was recalled the next day and asked to explain that statement, and he says this: I meant I would not have given up the receipts for the purpose of taking delivery of the goods mentioned in them without being paid for them, but my impression is that Mr. Pugh asked me to let him take them upstairs to the Goods Superintendent for the purpose of making enquiry about them, and that I did give them to him, not for the purpose of taking delivery of the goods on them.'
18. It does not appear that Mr. Leslie knew at this time what the terms of the contracts were, and I take the result of his evidence to be this: that he was of opinion, and that he acted upon the opinion, that the tender of the receipts in their then form and under the circumstances then existing, was equivalent to a delivery of the goods contracted for, and was sufficient to entitle him to demand immediate payment of the price of the goods.
19. Mr. Pugh's evidence is to the same effect. He says: 'When I got to Howrah I saw Mr. Leslie. I said I had come to get delivery of the goods and had the money. He said 'Here are the railway receipts for 341 bags of linseed' and asked me to state if I would take them.'
Q. 'Take what'?
A. 'Take delivery.'
I looked at the receipts, and said they were blank-endorsed by Hurdut Roy Chamaria. I then asked Mr. Leslie if he would let me have the receipts. He said: 'Yes, if you will pay for them.' I then asked him if he would wait a few minutes while I went and saw the Superintendent. He said 'All right.' 'Then Mr. Pugh went upstairs and saw the Superintendent, and while in conversation Mr. Leslie followed them. He then goes on to say: 'Then Mr. Leslie came upstairs and asked me if 1 was prepared to take the receipts. Then we went downstairs, and I said 'you must have the receipts endorsed by Hurdut Roy Chamaria to Pursottom Lall, and by Pursottom Lall to my clients.' I told him that in consequence of the conversation I had with Mr. Burbridge. Mr. Leslie said, 'there is no use in doing that, you must take them as they are.' Mr. Leslie then tendered me the receipts for the wheat: seven receipts. They were in the same condition when I saw them as the linseed ones. I said 'you must have them endorsed in the same way. He said he would not do that. On that I said, all right. I have got the money for all the goods here, and I will tender it to you. Do you want to take the numbers of the notes? 'He said,' no. 'He then asked me I would take the railway receipts as they then stood. I asked him if he would wait till I had seen Mr. Burbridge again. He said,' No. 'You must pay for them and take them Bow as they are. I can't wait any longer.' On that I said I would not take them and went away.
20. It appears that Mr. Pugh did not make any enquiries as to whether the goods were in 'the Howrah Station, and he took no objection on that ground, neither did he take any objection on the ground that the freight on the goods covered by the receipts had not been paid, though ha knew that the freight had not been paid for the linseed. He insisted upon the special endorsement in consequence of the Goods Superintendent telling him that such an endorsement was necessary, as otherwise the delivery of the goods might be stopped by notice from Hurdut Roy Chamaria or the consignees. And with reference to the non-payment of freight, he says in his cross-examination: 'If freight had not been paid on the goods, there would, I suppose, have been no difficulty in deducting the freight from the money, or deducting the demurrage from the money. As far as I know it has never been done.'
21. Now that being what occurred at Howrah, the question arises whether the plaintiff is right in his contention, that what Mr. Leslie did on the 31st of May was a sufficient offer of performance which the defendant ought to have accepted. This brings me to the terms of the contracts and of the railway receipts which were tendered by Mr. Leslie.
22. Under the first clause of the contracts the goods are to be delivered in dry, sound, and merchantable condition. Clauses 10, 11 and 12 are as follows:
10. The goods to be tendered fully 48 hours before the expiration of the present term of 72 hours granted by the railway company in order to enable buyers to weigh, sample, and inspect the same, and the delivery not to be considered complete until the samples have been refracted and examined, and any dispute about quality, &c;, settled.
11. If railway receipt be tendered, such to be handed to buyers 48 hours before the goods are liable to demurrage under the present terms of 72 hours granted by the railway company.
12. Sellers must be present at the time of delivery to inspect the weighing and sampling; should they fail to do so after notice to sellers or to selling brokers, buyers will weigh and sample within usual railway working hours, and sellers must abide by the result.
23. It is contended by the defendant that under these clauses he was entitled to have the goods themselves delivered to him, and a sufficient opportunity given to him to examine the goods for the purpose of seeing whether what was tendered to him was of the description, quality and quantity contracted for, and that he was not bound to pay for the goods until he should have had this opportunity, and the delivery should have become complete. He says it is clear that no such opportunity was allowed him, that Mr. Leslie's procedure was intended to force him to pay the price of the goods unconditionally upon tender of the railway receipts, and that, therefore, such a tender was not an offer of performance, such as he was bound to accept.
24. I think the defendant's contention is sound. I gather from the evidence that Mr. Leslie would not have given up the receipts in order to enable the defendant to obtain delivery of the goods without first paying the price of the goods, and I do not think he was justified in taking up that position under the terms of the contracts. Besides, even if be were justified in taking up that position on the 31st of May 1897, the plaintiff must, in order to succeed, show that the goods covered by the railway receipts tendered to Mr. Pugh on behalf of the defendant, were goods of the description contracted for, and there is no evidence before me, upon which 1 can rely, to show that was the case.
25. Again, the defendant contends that he was not bound to accept a tender of railway receipts for goods subject to demurrage, nor for goods not available, for delivery on the 31st of May, nor for goods in respect to which the freight had not been paid at the time the receipts were tendered to him, and I am of opinion these contentions are also sound. Now when we turn to the receipts which have been put in evidence, that is to say four of those tendered to Mr., Pugh by Mr. Leslie, we find this:
26. From Exhibit No. 1 which is a railway receipt for 136 bags of wheat, it appears that the goods were not available for delivery until the 2nd of June, and there was a sum of Rs. 214-4-0 chargeable for freight.
27. From Exhibit No. 2, which is a railway receipt for 135 bags of wheat, it appears that there was a sum of Rs. 189-14-0 to pay for freight, and the goods were under demurrage on and before the 31st of May. These are two out of the seven receipts tendered by Mr. Leslie under the contract for 100 tons of wheat.
28. The other receipts have not been put in evidence and there is no evidence of their contents before me. I think the tender made under the wheat contract was wholly insufficient, even assuming that a tender would be good if made of clear receipts for available goods not subject to demurrage.
29. I am of the same opinion with reference to the receipts tendered in respect of the linseed contract. These show that the linseed covered by them was available on the 31st, and was not subject to demurrage, but upon one receipt there was a sum of Rs. 280-10-0 payable for freight, and upon the other a sum of Rs. 316-3-0. I do not think a tender of these receipts was a sufficient tender.
30. The defendant objects to the tender of the railway receipts generally upon the ground that there had been no attornment to him by the railway company. He contends that, at the very least, it lay upon the plaintiff to show that had the defendant taken the receipt tendered to him, the railway company would have been bound to have delivered the goods to him on production of the receipt. I think that is a sound contention. We know that the company would not have delivered the goods without prepayment of the freight, and it appears from Mr. Pugh's evidence that the Goods Superintendent told him that, if the railway receipts were only blank endorsed, he would not deliver the goods to the defendant in case a notice to detain the goods was given him by the consignee.
31. It is contended by the plaintiff that the evidence of Dumun Lall shows that they were prepared to deliver on the 31st of May the goods contracted for but I do not so read his evidence. No doubt he said the goods covered by the railway receipts were at Howrah on the 31st of May, but in his cross-examination when Exhibit No. 1 was shown to him he admitted that he could not say whether on the 31st of May there were goods ready for delivery against any of the railway receipts. He never inquired whether the freight had been paid. He states expressly that his master Pursottom Lall had nothing to do with the goods covered by the railway receipts, and his investigation of the goods, even according to his own statement, amounted to this, that, with respect to the goods mentioned in one or two of them, he compared the marks on the goods and the receipts for the goods.
32. The truth seems to be that neither Pursottom Lall, nor those assisting him on the 31st of May, had their attention directed to the goods themselves to any extent. They were dealing with the railway receipts, and it is clear that it was upon the railway receipts they depended for putting the defendant in the wrong and making him liable for the differences under the contracts.
33. Then it was also pointed out, on behalf of the plaintiffs, that on the 31st of May no objection was taken on behalf of the defendant, on the ground that the tender was not in accordance with the contract, or that the freight was not paid, or that the goods covered by some of the railway receipts were not then available for delivery, and that, if these objections had been then taken, they would have been dealt with, and the goods would have been delivered in strict accordance with the terms of the contract. Assuming those things would have been done, though the evidence does not seem to me to lend much support to those assertions, I do not think the defendant was under any duty whatever to point out to Pursottom Lall that his tender was defective, or to give him an opportunity to supplement it. His duty arose under the contracts, when a sufficient offer of performance was made to him, and not till then.
34. It was contended further that as the defendant, when the railway receipts were tendered to him, only requited that they should be endorsed in the special manner, he was not entitled now to rely on anything but the refusal of Pursottom Lall to so endorse them, and that the plaintiff was entitled to recover if he could show that the railway company would deliver the goods without this special endorsement. I do not think he has shown that; but apart from that, I do not think the contention is a sound one. If by virtue of the contracts the defendant was entitled to have certain things done in order that the offer of performance made to him should be binding on him, then I think he is now entitled to rely upon the position which his rights under the contract empowered him to take up on the 31st of May, no matter whether he took up that position then or not. It can only be on some ground of estoppel that he is disentitled to do so, and no estoppel could arise under the circumstances of this case. That a person who justifies an alleged breach of contract upon one ground only, which is found insufficient, is not for that reason disentitled to rely upon other grounds, which his rights under the contract entitle him to rely upon, has been recognised in many cases. See Gowan v. Milburn (1867) L.R., 2 Exch., 230; Mothoormohun Boy v. Bank of Bengal (1878) I.L.R., 3 Calc., 392.
35. The plaintiff also sued to recover a sum of Rs. 85-5 as assignee of Pursottom Lall under the following circumstances:
36. On the 23rd of October 1896 the defendant contracted to purchase 50 tons of wheat from Pursottom Lall at Rs. 4-4-10 per bazaar maund, delivery April and May 1897; and on the 23rd of November 1896, the defendants contracted to sell 50 tons of the same quality of wheat, delivery April and May 1897, at Rs. 4-3 per bazaar maund. This portion of the claim was disputed in the defendant's written statement, but was admitted at the hearing. There will, therefore, be a decree for the plaintiff for the sum of Rs. 85-5.
37. I think the defendant is entitled to the general costs of the suit, but the costs incurred by the plaintiff in consequence of the defendant's not admitting the claim for Rs. 85-5 should be deducted from the general costs.