Lancelot Sanderson, C.J.
1. This is an appeal from the judgment of the learned Subordinate Judge of Burdwan, who decided in favour of the defendants that the plaintiff was not entitled to any damages in the suit which was instituted. In this matter the learned Judge held, first, that the suit was barred by limitation: and, secondly, he held that inasmuch as the plaintiff had broken the terms of the contract, the defendants were not bound to fulfil their part of the contract.
2. The matter arose out of a contract of which the learned Vakil, appearing for the appellant, has given us a translation, the accuracy of which is not disputed. It provides as follows: (this was a letter to the defendants) 'I take a settlement on purchase of all burnt steam and new coke in your Chaptaria Colliery at the rate of rupee one annas seven per ton at the mouth or the pit. I shall pay for loading and carting. I shall pay for winnowing the burnt coke and for burning new coke. You (i.e., the defendants) will keep and pay a man for supervising the things in the pit. I shall pay my men for doing my work. I shall superintend so that no coal is destroyed or stolen at the mouth of the pit or on the roads or in the depot. I shall be entitled to use all waggons that may be supplied by the Railway Company on your siding for the purpose of sending my coal. I shall report to you as waggons are despatched.' Then come the important passages: 'I shall pay off your dues at the said rate of Rs. 1 annas seven only per ton, on account of the despatch of each successive waggon. I shall be entitled to keep in arrear the dues in respect of one waggon. I shall not be entitled to keep in arrear the dues in respect of the second waggon. I shall immediately pay you up. If the dues on account of two waggons fall in arrear you will be entitled to deduct the price of the two waggons out of the sum of Rs. 201 (which I have this day paid to you as advance and the receipt of which you have given this day to me, the said Sri Sibanarayan Pal) and further to forfeit the balance and shall be entitled to sell the coal, &c;, remaining in stock on my account. I shall be responsible for any profit or loss arising thereby.'
3. The facts which are necessary for me to mention for the purpose of my judgment are as follows: It appears that the plaintiff removed about 9 waggon loads of this coke; he paid Rs. 20 only which, we are informed, would not cover the price of more than one waggon; even if it covered the price of the contents of one waggon, it is not disputed that the plaintiff did not pay the price of the coke which he removed in accordance with the terms of the contract. That breach of the contract on the part of the plaintiff entitled the defendants to deduct the price of the contents of the 9 waggons from the deposit of Rs. 201, which in fact the defendants alleged that they did: and Mr. Roy who appeared before us for the respondents asserted that the price of the coke in the 9 waggons would amount to a sum which would nearly absorb the whole of the deposit; at all events, the balance of the deposit after deducting the price of the 9 waggon loads was a small amount. In consequence of the plaintiff's breach the defendants would, in my judgment, be entitled to sell the remainder of the coke in stock, I agree with the argument of the learned Vakil for the appellant, that under this contract, the subject-matter of the contract being ascertained goods, the property in the coke passed to the plaintiff and that after the purchase the coke in stock was the plaintiff's coal and that when he failed to pay the purchase price of the contents of 9 waggons in accordance with the contract, that in itself, apart from the other provisions of the contract, was not sufficient to entitle the defendants to put an end to the contract, The plaintiff's failure to pay for the coke taken by him would, in my judgment, give the defendants a right to put in force the other provisions of the contract. The other provisions of the contract were, first, to forfeit the balance of the deposit and to sell the remainder of the coke in stock on account of the plaintiff. The defendants did sell some of the coke, as they allege, amounting to about 9 waggon loads and the remainder, the defendants allege, was stolen by thieves: Whether those facts were true or not, I express no opinion, because there is no finding upon that point, and we are not in a position to express any opinion upon it, but for the purpose of my judgment it is not material to go into that part of the case. The question is what would be the result under the terms of the contract, if and when the defendants re sold the remainder of the coke in stock. In my judgment that depends upon two sentences: (1) 'You (i.e. the defendants) shall be entitled to sell the coal remaining in stock on my account;' and (2) 'I (i.e., the plaintiff) shall be responsible for any profit or loss arising thereby.' The learned Vakil for the appellant on the one hand, has argued that that means that the remainder of the stock should be sold on account of the plaintiff, by the defendants as agents for the plaintiff, and that the profit and loss arising upon such re-sale should be the plaintiff's, that is to say, if there were any loss the plaintiff should be liable for it; on the other hand, if there were any profit the plaintiff should be credited with the profit. On the other hand, the learned Vakil for the respondents has argued that the words 'I shall be responsible for any profit or loss arising thereby' really mean very much what is provided by Section 107 of the Contract Act, namely that on the re sale the loss, if any, should be borne by the plaintiff; and that if there were any profit, it would go into the pocket of the sellers, viz., the defendants.
4. I ought to have said that it is clear that the defendants cannot rely upon Section 107 of the Contract Act, because the provisions of that section can only be made applicable when notice has been given by the seller to the buyer of his intention to re-sell after the lapse of a reasonable time. No such notice was given in this case, and, therefore, the defendants are relegated to the rights which they have under the contract.
5. In my judgment it is impossible to say, having regard to the terms of this contract, that the plaintiff is to have the profit upon re sale. I think the words 'I shall be responsible for any profit and loss arising thereby' are so inconsistent with the plaintiff being credited with the profit upon the re-sale that they counterbalance any argument which may be adduced in favour of the plaintiff by reason of the words on my account.' I agree, if I may say so, with the learned Vakil for the appellant that the words 'on my account' tend in the plaintiffs favour; but we have to construe the contract as a whole, we have to give the best meaning we can to the different phrases in this contract, and I think it is possible to give a meaning to the words 'on my account' in this sense, viz., that it was intended that the defendants, in the circumstances that happened, should re-sell the remainder of the stock 'on account of the plaintiff' and that the defendants would be able to give a good title to the purchaser as if the plaintiff was himself selling it. The production of this document to a prospective purchaser from the defendants would satisfy him that the defendants had authority to sell the remainder of the stock and to give a good title to the stock on behalf of plaintiff. Then, with regard to the words 'I shall be responsible for any profit or loss arising thereby,' I am unable to say that these words mean that the plaintiff is to get credit for any profit which would arise from the re-sale. The learned Vakil wanted to interpolate words there and read the sentences as follows: 'I shall be entitled to any profit and responsible for any loss arising thereby.' That is a construction which, I think, would be making a new contract for the parties instead of interpreting the contract which the parties made. If the above construction be the true construction of the contract, then it is unnecessary for us to enquire whether upon the re-sale the defendants made any profit, because it would go into the defendants' pocket, nor is it necessary for as to direct an enquiry as to how much stock was left in September 1914, or as to what was done with regard to the coke which was left, because, as I have pointed out, if there has been a resale any profit arising therefrom, in the circumstances which have happened, must go into the pocket of the defendants and cannot be recovered by the plaintiff.
6. Consequently, in my judgment, though I do not agree with the ground upon which the learned Subordinate Judge based his decision as regards this part of the case, in my opinion the conclusion, at which he arrived, was correct, viz., that the plaintiff's suit must fail. That being my opinion, it is not necessary to consider which clause of the schedule to the Limitation Act should apply to this case.
7. For these reasons in my judgment the appeal should be dismissed with costs.
8. I agree.