W. Comer Petheram, C.J.
1. This is an action to recover damages for the breach of a contract to deliver a quantity of Furrakawa copper, and it is admitted that, if the plaintiffs are entitled to recover at all, the amount of damages is Rs. 3,834-2-6, what the plaintiffs claim in the plaint.
2. The facts of the case are as follows: On the 23rd of July 1887, the defendants bought of Messrs. Ralli Brothers' 100 tons, more or less, Japan copper, Furrakawa, for July shipment, at Rs. 21-2 per maund. They afterwards instructed one Madun Chand, a broker, to make re-sales of the copper on their behalf; and it was stated by the witnesses for the defendants that, when the defendants gave the broker his instructions, they, after the rates had been fixed, told him that the buyers would get delivery of the copper as often as the defendants got delivery from Ralli Brothers. If the defendants got delivery all at once, they would give delivery all at once; if the defendants got delivery by two instalments, (?hey were to get delivery by two instalments, and so on. And that the defendants were selling copper which was to arrive: if only half the quantity arrived, the buyers will get half; if only a quarter arrives, they will get a quarter. The broker said that upon these instructions he saw the plaintiffs, and negotiated a sale of a portion of the copper to them. Upon such negotiation, he said that he informed the plaintiffs that Ralli Brothers were to deliver the copper to the defendants, and out of that copper the defendants were to deliver again to the plaintiffs, and that the actual delivery was to be taken from Ralli Brothers' godowns. The broker said this: He told them that if the defendants got delivery of only half from Ralli's, they would deliver only half to the plaintiffs; if they got the whole, they would deliver the whole.
3. The plaintiffs agreed to purchase 750 maunds of the copper at Rs. 21-5, and the broker prepared and signed, on behalf of both seller and buyer, the usual bought-and-sold notes in the following terms:
To Jadu Raiji, Ramgopal Raiji, this is written by Dhunsook Madun Chand with salutations. Further, we have bought for you Furrakawa copper, 750 maunds, as amdani (to arrive) of (or from) Mudusudan Nundy, Rampro-sunno Nundy, and Bhubotaran Nundy, at the rate of Rs. 21-5, the goods of the house (firm) of Ralli, Parbhars, Time limited (for delivery) four mouths. Interest at the rate of Rs. 10, Kothi (Factory) weight (in) Company's Rupees, you will give (pay). The conditions as to weighment (delivery) to be 45 days after the goods shall have come into the ghur (house and godown, &c;). You are to deduct interest (discount) at the rate of Rs. 8. Sumbat 1944, dated the 9th day of the dark side of Bhadro.
Signature of Jadu Rai, Ramgopal Rai,By the pen of Gridhari Lall.' (On back) ' In Bengali year 1294, the 29th Srabun.Jadu Rai. Ramgopal Rai.' To Jadu Rai, Ramgopal Rai, this is written by Dhunsook Madun Chand with salutations. Further, we have bought for you Furrakawa copper, 750 maunds, as amdani (to arrive) of (or from) Mudusudan Nundy, Ramprosunno Nundy, and Bhubotaran Nundy, at the rate of Rs. 21-5, the goods of the house of Ralli, Parbhars. Time limited four months. Interest at the rate of Rs. 10, Kothi (Factory) weight (in) Company's Rupees, you will give. The conditions to weighment to be 45 days after the goods shall have come into the ghur. You are to deduct interest (discount) at the rate of Rs. 8. Sumbat 1944, dated the 9th day of the dark side of Bhadro.
Signature of Jadu Rai, Ramgopal Rai,By the pen of Gridhari Lall.' (On back) ' In Bengali year 1294, the 29th Srabun.Jadulal Ramgopal.'Prior to the 21st of October 1887, some portion of the copper mentioned in the defendants' contract with Messrs. Ralli Brothers arrived at their go-downs, and another portion arrived early in November, in all about 1,500 maunds and the defendants gave to the plaintiffs a delivery order for 375 maunds and 6 chittacks of copper in the following form:
(209-88) C.N.G. 24-1-89 22-10-871545.Calcutta, 22nd October 1887.No. 1501.Godown-keeper,Deliver to Mudusudan Ramprosunno Bhubotaran Nundy:
The following goods sold per contract No. 209-375. Japan Copper Furrakawa. I.M. Deliver Deliver Rs. 21-2(87) eighty-seven only. Ralli (188) one hundred cass in full checked.N.N.B. 31-10-87. Brothers eighty-eight only.Deliver N.N.B. 8-11-87.(100) one hundred only. N.N.B. 3-11-87.Broker, Dun Wingsang. (On back)31st October 1887-214 Ingots maunds ... ... ... ... 87 0 63rd November 246 ' ' ... ... ... ... 100 11 08th ' 462 ' ' ... ... ... ... 187 29 0Maunds. ... 375 0 6[Three hundred and seventy-five maunds and six chittacks only Japan copper, Furra-kawa ]
4. Plaintiffs presented the order to Messrs. Ralli Brothers and received from them 375 maunds and 6 chittacks of copper, and paid them the sum of Rs. 7,800. The defendants afterwards returned to the plaintiffs the sum of Rs. 149-8-9, being the difference between the sum of Rs. 7,800 and the price of the copper delivered to the plaintiff's.
5. At the time of such delivery there was, in Messrs. Ralli Brothers' hands, the whole of the 1,500 maunds, or much more than a sufficient quantity of copper to satisfy the plaintiffs' entire contract, and it was contended before us that it should be assumed that the defendants were aware of this fact. There is no evidence to support any such assumption, and I do not see why we should make it, though, in my opinion, it is wholly immaterial whether they knew the fact or not. Messrs, Ralli afterwards delivered the remainder of the 1,500 maunds to other purchasers from the defendants, some of whom purchased before its arrival, and some after.
6. No more copper ever arrived in Calcutta within the terms of the defendants' contract with Messrs. Ralli Brothers, nor did any other copper of the kind mentioned in their contract with the plaintiffs arrive in Calcutta for the defendants during the time for delivery mentioned in their contract.
7. Some time after the delivery of the 375 maunds of copper to the plaintiffs, the defendants agreed with Messrs. Ralli Brothers to cancel their contract with them, and afterwards, on December 29th, 1887, Messrs. Ralli Brothers paid them the sum of Rs. 12,500 in consideration of their so doing.
8. The defendants have refused to deliver any further copper to the plaintiffs, and before action repudiated all liability to do so.
9. Upon these facts it was contended for the defendants that the bought-and-sold notes did not contain the whole contract between the parties, but that the contract was partly verbal and partly in writing; and that, taking the evidence of the broker with the notes, the contract proved was a contract to deliver one-fourth of each delivery made by Messrs. Ralli Brothers to the defendants until the plaintiffs had received 750 maunds, and that as the plaintiffs have received one-fourth of all such copper as arrived, they were not entitled to demand anything more. It was further contended that the plaintiffs were aware, when they took delivery of the 375 maunds, that there was sufficient copper in the godowns to satisfy their entire contract, and that as they did not insist on its delivery to them, they waived all claim to that particular copper, and as no more copper afterwards arrived, they were prevented from making any claim by the condition of the contract.
10. It was contended on behalf of the plaintiff's that the evidence of the conversation was not admissible at all, as the bought-and-sold notes must be taken to be the final expression of the agreement come to between the parties, and that no evidence was admissible to add to or vary the terms of the notes.
11. The learned Judge in the Court below has accepted the view put forward by the defendants, has admitted the evidence, and has come to the conclusion that the contract between the parties was not that which appears on the bought-and-sold notes, but was such a contract as is alleged in paragraph 3 of the written statement, which is a contract to deliver one-fourth of such copper as arrived at Messrs. Ralli Brothers' godowns, and as the defendants have delivered 375 maunds, or a quarter of 1,500 maunds, which is the whole amount of copper which did in fact arrive, there is no further liability on their pare, and he has dismissed the suit.
12. I am unable to agree with the learned Judge in this view of the matter. The evidence as to what passed between the defendants and the broker before the negotiation with the plaintiffs commenced, was not, I think, admissible at all; because, apart from anything else, it does not appear that the conversation was ever communicated to the plaintiffs, or that the broker was in any sense their agent at that time, and the question is then reduced to the effect of the evidence given by the broker of the conversation between himself and the plaintiffs which resulted in the sale, and the signature by him of the notes.
13. After a good deal of pleading by the defendants' counsel, he said: 'There was no arrangement 'as to delivery, it was understood delivery was to be taken from Ralli Brothers. Ralli Brothers were to deliver the copper to the defendants, and out of that copper the defendants were to deliver again to the plaintiffs. As many times as Ralli Brothers delivered goods to the defendants, so many times would the defendants deliver to the plaintiffs. If the defendants got delivery of only half from Ralli Brothers, they would deliver only half to the plaintiffs; if they got the whole, they would deliver the whole.'
14. The broker further said: 'All that was arranged I put down in the contract. By the contract I mean the bought-and-sold notes;' and that he reported what had passed to the defendants and said to them: 'The Baboo consents to those provisions, you had better sign the contract;' and that he then, by the instruction of the defendants, signed the bought-and-sold notes on their behalf, and as constituting the contract.
15. The argument for the defendants turns on the portion of the broker's evidence which deals with the delivery of half only. It is said that the meaning of that sentence is that the plaintiffs were only entitled to half of what arrived, and the meaning of the words 'only half from Ralli Brothers,' is only half of what Ralli Brothers had contracted to deliver. The learned Judge has found that at the time when the contract was made, an agreement was come to between the parties, such as is sot out in paragraph 3, which amounts to an agreement that the defendants should sell and deliver to the plaintiffs 750 maunds of copper, to arrive by instalments of one-fourth of each instalment of copper of which they would receive delivery from Messrs. Ralli Brothers.
16. I can find no evidence of any such agreement. It appears by the bought-and-sold notes, which the broker says constituted the contract, that the defendants were to deliver 750 maunds if they arrived; and when he says if only half arrived, the defendants would only get half, but that all the terms were put down in the contract, the plain meaning of his words is, I think, that if the defendants only got half of 750, they would only give what they got to the plaintiffs.
17. I also think that, if the evidence of the broker bears the meaning sought to be put upon it by the defendants, it is excluded by Section 92 of the Evidence Act, it not being within proviso 2 to that section.
18. The bought-and-sold notes disclose a contract for the purchase and sale of 750 maunds, if 750 maunds, arrived.
19. If the evidence of the broker means what the defendants say it does, the 'eparate oral agreement' was an agreement to deliver 750 maunds if a much larger quantity arrived. Such an agreement would be, in my opinion, inconsistent with the terms of the notes, and as the notes were signed after the conversation, and are proved by the defendants' witness to be the contract, I do not think evidence of such an oral agreement, to vary the terms of the contract as disclosed by the notes, would be admissible, or that, if admissible, it would be reliable or of any value in any way, and, for my own part, I should not believe it.
20. The case of Sievewright v. Archibald 20 L.J. Q.B. 529 : 17 Q.B. 115 was relied on by the learned Judge in the Court below; but that case does not, in my opinion, affect the present question. In that case, the bought-and-sold notes did not agree, and there being no other written memorandum of the contract, it was held that there was no sufficient proof within the Statute of Frauds. The learned Judges say that bought-and-sold notes may not he either the contract or a memorandum of it, but merely notes sent by brokers to their employers to give them information, and that in such a case the contract may be proved by any other legal means.
21. In the present case the broker, who was called by the defendants, said that the bought-and-sold notes were the contract, and it is apparent from the evidence that they were accepted by both parties as such, and this is in accordance with what was proved to be the custom of merchants in Calcutta in the case of Cowie v. Remfrey 3 Moore's I.A. 448 where this was proved. I am of opinion that parol evidence was not admissible to vary or add to the terms of the contract which had been reduced into writing. If any authority is required for this proposition, it will be found in the case of Young v. Austin L.R. 4 C.P. 553.
22. The only other contention which was urged before us on behalf of the defendants was that of waiver. As to that I think it enough to say that, as the defendants had the whole of four months to deliver in, the plaintiffs could not claim anything at all at the time when they received the delivery order for 375 maunds, and so could not demand a delivery at that time of anything more than the defendants thought fit to give them; and as they had no claim which they could enforce, they could not waive it by not asserting it.
23. On the whole, I am of opinion that the facts proved disclose no defence to the action, and that the appeal must be allowed and judgment given for the plaintiffs for the agreed amount of damages. The plaintiffs will get the costs in both Courts.
24. I should add that, although in the view I take of the case, it is not necessary to decide the point, it must not be understood that I am of opinion that the plaintiffs would have had no claim against the defendants by reason of their having cancelled their contract with Messrs. Ralli, and so put it out of their own power to fulfil their contract with the plaintiffs.
25. I would further add, that I think the practice of admitting evidence and reserving the question of its admissibility for further consideration, is unwise and much to be regretted. If the evidence is once admitted, it is impossible to say what its effect may be on the mind of the person who hears it; and I think it most desirable that the question of admiasibility should be finally decided when the objection to questions is taken.
26. The plaintiffs sue for damages for the breach of a contract for the delivery of 750 maunds of copper; 375 maunds were delivered, and the breach alleged is the refusal to deliver 375 maunds, the remainder of what the plaintiffs say they were entitled to under the contract. The amount of the damages is admitted if defendants' liability be established.
27. The plaint in the first paragraph says; 'Previously to the 13th day of August 1887 the defendants purchased from Messrs. Ralli Brothers, Merchants of Calcutta, a quantity of copper, and on the said 13th day of August the defendants contracted to sell to the plaintiffs 750 maunds of the said copper (delivery on arrival) at the rate of Rs. 21-5 per maund Factory weight, with discount for four months at the rate of Rs. 10 per cent, per annum, with a further discount at the rate of 8 per cent, per annum, for 45 days from the date of delivery.
28. The defendants in the first and second paragraphs of the written statement say as follows:
1st.-' On the 23rd day of July 1887 they agreed to purchase from Messrs. Ralli Brothers of Calcutta, 100 tons or 3,000 maunds more or less of Japan copper, Furrakawa, to arrive, by shipments in the month of July, on the term and conditions set out in Exhibit A (hereunto annexed), which the defendants crave leave to refer to as part of this their written statement.'
2nd.-'On the 13th day of August 1887 the plaintiff's agreed to purchase 750 maunds out of the said 3,000 maunds of copper so agreed to be purchased by the defendants from the said Messsrs. Ralli Brothers under a contract, dated the 9th day of the dark side of the moon in Bhadro, in Sumbat 1944, corresponding with the 13th day of August 1897, the terms whereof translated into English are as follows':
Here followed the bought-and-sold notes which His Lordship read and continued]:
There is no dispute as to the bought-and-sold notes, which agree: nor as to the authority of the broker through whom the contract contained in them was made. And it is to be observed that the written statement in the paragraph just set out states that the plaintiffs agreed to purchase the 750 maunds under a contract, that is, that contained in the bought-and-sold notes dated the 9th Bhadro (dark side) 1294, or 13th August 1887: and then sets out the terms of it as contained in them. That, as I understand the effect of this language, makes it part of the defendants' case; that as to anything provided for in the bought-and-sold notes, they constitute the contract between the parties.The third paragraph of the written statement contains the defence set up in this suit:
3rd.-'At the time when this last-mentioned contract was entered into, it was distinctly agreed between the plaintiffs and the defendants that the defendants would sell and deliver to the plaintiffs the said 750 maunds of copper by instalments of one fourth of each shipment of copper of which they would receive delivery from the said Messrs. Ralli Brothers.
29. At the hearing the learned Judge allowed evidence to be given by the defendants, which evidence, as I understand, was tendered in support of the defence set up in the third paragraph of the written statement. He did not, when allowing that evidence (which was objected to) to be given, decide the question raised as to its admissibility, but reserved that question for decision by his judgment, in the case. In his judgment he held the evidence to be admissible and finding that it established the agreement set up in the third paragraph of the written statement, and that, under the circumstances, the defendants became entitled by the terms of that agreement to refuse delivery of more than the 375 maunds delivered by them, he dismissed the suit.
30. What tookplace after the contract was, as proved or admitted, as follows - On the 25th B hadro (August 29th) the defendants sold to one Amritolall 200 maunds copper, to arrive. On the 27th Bhadro ('August 31st) they sold to Tarachand and Ram Chunder, 100 maunds, and Madub Chunder and Prankristo 150 maunds, to arrive. They made no further sales than these of copper, to arrive.
31. About October 19th or 20th, 1,061 maunds of Ralli's copper arrived, and about the 31st October, 436 maunds, that is, 1,497 maunds in all. No more copper than this arrived under the defendants' contract with Ralli Brothers. Of the copper which so arrived the plaintiffs got delivery of maunds 375-0-6 that is, maunds 87-0-6 on October 22nd, maunds 100-11-0 on October 31st, and maunds 187-29-0 on November 8th. These quantities appear to have been delivered to them under a delivery order, from Ralli Brothers to the defendants for 375 maunds, dated October 22nd. It may be noticed in passing that these deliveries certainly do not seem to have been made in accordance with the alleged agreement in the third paragraph of the written statement.
32. To the other persons, to whom the defendants had sold copper, to arrive, they delivered 225 maunds out of the 450 maunds sold by them.
33. The rest of the 3,000 maunds of copper, to arrive, which defendants had contracted for with Messrs. Ralli Brothers, did not arrive at all, nor did any copper arrive of the description stated in the bought-and-sold notes. The defendants made an arrangement with Messrs. Ralli as that part of the contract: at what exact date that does not appear, though from Nilmoney's evidence it would seem to have been before the 18th November. In December 1881 they received from Messrs. Ralli Rs. 12,500 in consideration of their having done so.
34. The defendants themselves took delivery from Ralli Brothers of the rest of the 1,497 maunds of copper, over and above the 375 maunds delivered to the plaintiffs, and 225 maunds to other persons. That would amount to about 897 maunds: to this they sold to different persons by ready sales, in the market, at prices higher than those agreed on with the plaintiffs.
35. In their written statement the defendants say that the rest of the 3,000 maunds did not arrive, and the defendants therefore could not, and in fact did not, deliver the remainder of the 750 maunds of copper to the plaintiffs, and they submit that no further deliveries became due from them to the plaintiff's.
36. It may be worth while to set out the letter of December 11th from the defendants, in answer to a demand then made by the plaintiff on the defendants for delivery of the remaining 375 maunds, to which the defendants replied on December 11th:
We sold you 750 maunds (Furrakawa) copper, to arrive, from Messrs. Ralli Brothers & Co., with condition to deliver you the same as it will arrive at the said office. I delivered you 375 maunds, which had arrived, and the remaining shall be given to you when it will arrive at the said office.' The arrangement with Ralli Brothers is not there disclosed; and the writer would seem not to have had the 'verbal agreement' present to his mind.
37. The defence was that, although an amount of copper did arrive, more than enough to enable defendants to deliver the 750 maunds sold by the contract contained in the bought-and-sold notes' still as the defendants were not, by reason of the contemporaneous verbal agreement alleged in the third paragraph of the written statement, bound to deliver more than one-fourth of what, by each shipment, did arrive, and as they did deliver one-fourth of what did arrive, they are not liable for breach of contract. There is no dispute as to their liability, unless they are excused by some such defence as this.
38. The plaintiffs contended that it was not competent for the defendants to set up the verbal agreement alleged; and they contend before us that even if it was, the defendants have wholly failed to prove it.
39. These are the substantial points raised before us. There was another, argued before us for the defendants, but not noticed in the judgment, namely, that the plaintiffs by accepting the 375 maunds had waived performance of the contract alleged by them. There really is nothing in the case to warrant such a contention, nor could it lie in defendants' mouth to suggest a waiver, in face of their letter of December 11th, untruthful as it was. The learned Judge in the Original Court held that evidence was admissible to prove the contract set up in the third paragraph of the written statement. I shall presently state why I think that evidence was not admissible: at present I have to deal with the finding of the learned Judge. He found that the evidence established the contract to set up. Unfortunately, he did not state his reasons for this finding, or refer to the parts of the evidence which led him to that conclusion.
40. The evidence upon the point is that of the broker and of the defendant, Nilmony; and it appears to me not merely to fail to establish, but to be quite inconsistent with, the case made in the third paragraph of the written statement. Madun Chand, the broker, says: 'There was no arrangement as to delivery. It was understood delivery was to be taken from Ralli Brothers; Ralli Brothers were to deliver the copper to the defendants, and, out of that copper, the defendants were to deliver again to the plaintiff's.' Later on (combining a question and answer) he says: 'There was no arrangement as to what quantity of copper was to be taken delivery of at a time.' Then he is asked: 'Was anything said as to the proportion of delivery?' A.-If the Nundy defendants got delivery of only half from Ralli Brothers, they would deliver only half to the plaintiffs; if they got the whole, they would deliver the whole. I said to the Mooneen gomashta of plaintiffs, you will have to take delivery in the same way as the defendants get delivery from the Rallis. In the contract it was written: 'This contract is Ralli Brothers 'contract-ka-durrun on account of'- and that means that the word durrun means on account of.' He ends by saying 'all that was arranged has been put down in the contract. By the contract I mean the bought-and-sold notes.'
41. There is not a word in his evidence as to delivery of' instalments of one-fourth of each shipment of copper of which defendants would receive delivery from Ralli Brothers.' Then Nilmony says, 'When the rates were fixed the broker was told that the plaintiffs will get delivery of the copper as often as we get it from Ralli's. If we get delivery all at once, we will give delivery all at once; if we got delivery by two instalments, they were to get delivery by two instalments, and so on.' Later on, 'I said to the broker, I am selling copper which is to arrive: if only one-half quantity arrived, you will get half; if only one-fourth, one-fourth. The broker consented and agreed to that and went to get the consent of the Baboo. He came back afterwards to me and then made the contract.'
42. He was cross-examined as to his intention when making the contract. He says: 'I had nothing particular in my mind. 1 intended to give a proportionate quantity only, proportionate to what I received. If I got the whole hundred tons, I would have given them the whole quantity they purchased.' Later, 'When I sold the goods as Ralli Brothers', I would have given delivery as I received from Ralli's, and I would have given a pro rata distribution amongst those persons to whom I sold the copper.' This is manifestly quite idle and worthless testimony. He had not then made any sales save to plaintiffs, nor did he for more than a fortnight afterwards. However, this is what he says.
43. Of the contract set up in the third paragraph of the written statement not a word is said in the evidence of either of those witnesses. It is to me quite clear that this evidence is fashioned so as to fit in with what did happen; namely, that the plaintiff's got one-half of their 750 maunds and that Ralli Brothers (by an agreement with the defendants which they did not disclose) delivered only half of the 3,000 maunds sold to defendants. A verbal contract is accordingly set up, though not that set up in the written statement, by which plaintiff's were only to get the same proportion of their 750 maunds as Ralli should deliver of his 3,000 maunds; and so what is supposed to be a defence to the action is supplied.
44. I think this evidence does not warrant the finding of the learned Judge that the contract pleaded in the written statement at any rate so far as what is stated in the third paragraph of the written statement is concerned has been proved.' I think he ought to have found on this question in the negative, and that his judgment and decree should be set aside on that ground and on that ground alone.
45. It is unnecessary to consider whether the contract substituted in the evidence, could have been held proved. It has not been held proved, and if necessary I should express complete disbelief of the evidence in support of it. Apart however from the question whether the evidence warrants the finding of the learned Judge, which must be answered in the negative, I agree that the evidence tendered in support of the third paragraph of the written statement was not admissible.
46. It was expressly admitted in the written statement that the contract contained in the bought-and-sold notes (which agree) was entered into between the plaintiffs and the defendants.
47. It was a contract for 750 maunds of copper of Ralli Brothers, to arrive. Time, four months. The learned Judge has held that this term of the contract 'to arrive' was a condition. I agree with that. The contract, therefore, bound the defendants to deliver 750 maunds if such a quantity arrived (as it did) within the four months. But the contract in the third paragraph of the written statement substitutes for that obligation a very different one, namely, the obligation to deliver 750 maunds, if one-fourth of each of the successive arrivals should in the aggregate amount to 750 maunds, otherwise not. No doubt the written statement only says that it was agreed that defendants should deliver instalments of one-fourth of each shipment. But if this does not mean that they were not to be bound to deliver more than such one-fourth, there is no meaning in setting it up as a defence: and it is in truth the defence raised in the latter part of the written statement, to the effect that the plaintiffs got one-fourth of what did arrive, and that as the 1,500 maunds residue of Ralli's contract did not arrive, they were not entitled to more.
48. The learned Judge holds that the contract set up in the third paragraph is not inconsistent with that contained in the bought-and-sold notes. I am unable to agree with him. I think the two are inconsistent in this: the first makes the plaintiffs' right to receive 750 maunds of Ralli Brothers' shipments of Japan copper, conditional on arrival within four months of that quantity. The second, in effect makes it conditional on the arrival of the whole 3,000 maunds, which the plaintiffs[sic] had, as a fact, agreed to buy from Ralli Brothers but no condition referring to the amount of Ralli's contract, or making the arrival of the whole of it any part of the bargain between the plaintiff's and the defendants, is hinted at in the bought-and-sold notes.'
49. The bought-and-sold notes provide: 'The conditions to weighment to be 45 days after the goods shall have come into the godown.'
50. The learned Judge holds that it was competent for the defendants to show that 'goods' in this place meant, not the goods the subject of the contract, but the goods mentioned in the plaintiffs' contract with Ralli Brothers, which contract is not referred to in it at all. He holds that this was the meaning of the word 'goods' according to the view of the broker and the defendant; and that, that being so (although he says counsel did not so put it, nor any witness say it), evidence of the matters in the third paragraph of the written statement was admissible.
51. I am unable to agree with the opinion that evidence as to this very special meaning of the word goods' was admissible. There seems to me to be no ambiguity in the words of the instrument such as to render it admissible. The words 'goods of the firm of Ralli Brothers' in the early part of the document seem to me clearly descriptive of the copper agreed to be bought, and the word goods,' in the proviso as to weighment to relate clearly to the copper, the subject-matter of the contract between plaintiffs and defendants, or at any rate copper answering that description. Wore this meaning to be attributed to the word goods' as suggested, I do not see how it would make evidence of the contract in the third paragraph of the written statement admissible; and I am unable to agree with the learned Judge, either that evidence of the meaning of the word 'goods' was admissible, or that, if admitted, it furnished ground for further admitting evidence of the verbal agreement.
52. As a result the contract in the third paragraph being inconsistent with the written contract admitted both in the pleadings and in the evidence to have been entered into between the plaintiff's and the defendants, no evidence of it was admissible and the finding upon that evidence, ever if it were warranted by it, cannot be sustained. Another ground is stated by the learned Judge for holding the evidence of the matters alleged in the third paragraph of the written statement admissible. That is that, as held by him in a former case, bought-and-sold notes do not necessarily constitute the contract: in his former judgment, quoted by him, he refers to sievewright v. Archibald 20 L.J. Q.B. 529 : 17 Q.B. 115, and the observations of Mr. Benjamin on this subject in which that decision is discussed.
53. In Sievewright v. Archibald 20 L.J. Q.B. 529 : 17 Q.B. 115 the bought-and-sold notes were inconsistent with one another: it seems to have been the opinion of the Court that the contract between the parties might well have been proved in some other way, if there was one; and if it could be proved so as to satisfy the Statute of Frauds. This, and the other cases on this subject, go no further than to show that there may be cases in which bought-and-sold notes have been made, but in which they do not, nevertheless, constitute the contract. But as a general rule when they agree, they do. Lord Campbell in Sievewright v. Archibald 20 L.J. Q.B. 529 : 17 Q.B. 115, says that where the bought-and-sold notes agree, it has been held that they constitute the contract. It may perhaps be a question, looking at the case of Cowie v. Bemfrey 3 Moore's J.A. 448, which governs this Court, whether in Calcutta bought-and-sold notes do not by custom presumably constitute the contract unless this be disproved, once the authority of the broker is established.
54. At any rate, where the authority of the broker to act for both sides is clear, where the bought-and-sold notes agree and have been entirely acquiesced in, there can be no doubt that, at least so far as their contents go, they do constitute the contract.
55. In this case the matter even went further, for the defendants admitted that the bought-and-sold notes contained the contract between them and the plaintiffs, though setting up a distinct verbal one, and the broker deposed that the contract in the bought-and-sold notes did contain everything agreed between the parties. I think the bought-and-sold notes were the contract in this case, and could not be varied by parol evidence.
56. For these reasons I think the judgment and decree of the Court below should be set aside, and a decree be made for the plaintiffs, and that they recover damages, being the amount ascertained to be due, if damages should be found to be recoverable.
57. It is unnecessary to determine the question raised in the memorandum of appeal as to the defendants arrangement with Ralli Brothers, and the profit made by him out of that arrangement; it is enough to say that I quite agree with what has been said by the Chief Justice on that subject.
58. I may add also that I quite agree with what has been said by the Chief Justice as to the admission of evidence subject to decision of the question whether it is admissible or not.