1. This is an appeal by the plaintiff whose suit for price of work done and for damages, together with interest, has been decreed in a modified form against the defendants, the B.N. Ry. Co. Ltd. The plaint is not quite artistically drawn, but the plaintiff's case, put quite shortly, was as follows: in February 1920 the defendant company gave the plaintiff contract work in connexion with the construction of the Talchar Coal Field Railway for a portion designated as from change 314 to 330; that the plaintiff commenced work under the contract and continued to do so till 11th September 1924; that before the date last mentioned the work from chainage 324 to 330 was suspended pending decision of a proposed change in the plan; that by that date the earthwork in chainage 314 to 315 had been almost completed, while that from chainage 315 to 324 had been partially completed, the total work done in chainages 314 to 324 being two-thirds of what had been proposed; that on the said 11th September 1924 the defendants stopped the work which the plaintiff was doing, but at the same time required him to maintain an efficient arrangement so that, when necessary, he might resume the work or take up any other work that might be given him in substitution; and that by the end of December 1924 the defendants asked the plaintiff to discontinue the arrangement and thereafter finally cancelled the contract. The suit was instituted on 18th August 1926. The claim was laid at Rs. 42,000 odd after deduction of payments which the plaintiff had received. The work which the plaintiff did, fell under three categories, viz. earthwork, bridgework, and buildings and miscellaneous work. The rates for the different items of these works were scheduled in three contracts, viz. Ex. A, Ex. A (1) and Ex. A (2) respectively, and the plaintiff also claimed that in respect of certain matters there were modifications or variations made subsequently on his representation.
2. In the written statement filed on behalf of the defendants many of the allegations in the plaint on which the defendant's liability was founded were denied, and appended thereto were three schedules which show at a glance on what points the parties differed on the question of measurements, rates or accounts. Some of the statements contained in the written statement are not quite accurate: the Subordinate Judge has pointed out in what way they are wrong, and nothing has been said before us to challenge the correctness of these findings. It was pleaded that the plaintiff could legitimately get Rs. 2,221 as his dues for works done. A further amount of Rs. 2,074-4-0 was afforded on the ground of alleged loss due to stoppage of work, etc., but without prejudice. The Subordinate Judge was of opinion that the plaintiff was entitled to these two amounts, viz. Rs. 2,221 + Rs. 2,074-4-0 Rs. 4,295-4-0, and allowing a further amount of Rs. 3,172-13-0 on certain heads gave the plaintiff decree for Rs. 7,468-1-0 with costs in proportion to his success.
3. The contentions urged on behalf of the appellants fall under certain specific heads and it will be convenient to deal with them separately item by item. We first of all take up the main item of work, i.e., earth work in Sch. A to the plaint. (The judgment after considering the evidence on record and finding that no reliance could be placed on the measurements produced by either party proceeded.) In this unsatisfactory state of things it is not quite easy to determine how the case is to be decided. Here we cannot follow the rule which Mr. Tulloch suggested in Ex. 8, to which reference has already been made, and say that the quantity claimed by the contractor should be paid, because we are of opinion that the plaintiff's claim is not a genuine one. One view that may be taken is that it was for the plaintiff to prove his claim, and if the evidence he has called for the purpose is not reliable he can get nothing beyond what the defendants have admitted. But this rule can hardly be applied to a case where, as here, the defendants' measurements were not properly made and the defendants have not been able to produce all relevant materials in connexion with the measurements they made. Mr. Austin's evidence makes it perfectly plain that the Railway Engineers have a double duty to discharge: they have to see to the interest of their employers and they have a further duty to the contractor and see that the latter is satisfied that his just dues are paid. Consequently once the measurements made by the defendants are considered unsatisfactory the contractor's claim acquires a good deal of strength. The question is to what extent can we or should we accept the plaintiff's case.
4. There are two facts established upon the evidence about which there can hardly be any doubt or dispute. One such fact is that the plaintiff was not satisfied with the measurements as regards the banks, while he readily agreed to those as regards most of the cuttings. His conduct in referring to sign the measurements, his complaint to Mr. Tulloch and to the Agent [vide Ex. B and Ex. H (12)], his insistence in getting Mr. Tulloch and the other high officials to the spot to look into his complaint, are matters which point unmistakeably to his having entertained a genuine grievance. On the other hand there is not the faintest doubt that his allegation that he had completed two-thirds of the entire work and that
the defendants did not take the measurement at the proper time when he told them to measure the banks and three lacs cft of earth was thus washed away in all
is a myth. The correspondence to which reference has already been made establishes beyond doubt that he was not particularly anxious to have his works measured and that, in fact, it was with some difficulty that the defendants could get him to dress up the banks and make them ready for measurement. The story of so large a quantity of work having been washed away was in our judgment an invention resorted to because the plaintiff knew that he would not be able to support his claim on the spot at least to that extent. From the claim he put forward that quantity must be excluded. As regards the rest it is not possible to arrive at any conclusion with any degree of mathematical precision. But regard being had to the fact that the defendants in whom the duty lay of making a proper measurement have not been able to place before us such first-hand materials as would have satisfied us that these measurements were right, and as it is not possible at this distance of time to re-measure the work we think we ought to allow the rest of the plaintiff's claim. (The judgment then considered the plaintiff's claim with regard to rates, classification, rates and stores recruiting and fuel charges and cost of building cooly sheds and proceeded.) So far we have dealt with the part of the plaintiff's claim under Sch. A to the plaint which relates to prices for work done. We have now to turn to the plaintiff's claim under Sch. B to the plaint, i.e., under the head of damages. Mr. Bagram, appearing on behalf of the respondents has complained, and in our opinion rightly, that from a perusal of the plaint it is not easy to ascertain what is the contract or whether it is one contract or more, or whether the plaintiff has sued on their basis or for their breach. He has contended that if an employer prevents completion of the work given to a contractor, and if the work is only partially completed the contractor may sue for damages or he may treat the contract as at an end and may sue for price of the work done, but that these are only alternative remedies and he cannot have both. He has cited the following passage, in support of his contention, from Hudson on Building Contracts, Edn. 4, Vol. 1, p. 495:
Where the employer prevents completion, e.g., in the case of wrongful forfeiture, or of the builder being ejected from the site the builder may sue for breach of contract. If the builder has done nothing the measure of damages is the loss which he would otherwise have earned on the principle involved in Inchbold v. Western Neilgherry Coffee Co. (1864) 17 CB (n.s.) 733 and see Masterton v. Brooklyn Corporation (1845) 7 Hill (n.y.) 16. If the work is partially completed the measure of damages is the contract price, deducting therefrom what it would have cost to complete the work when it was stopped. But instead of suing for damages the builder may, at his option, treat the special contract as at an end, and sue for the value of the work actually done and of the material supplied, or he may sue alternatively for damages or for the value of the work and materials: Mayne on Damage, Planche v, Colburn (1831) 8 Bing 14, Prickett v. Badger (1866) CBN S 296 and Lodder v. Slowey (1904) AC 442, p, 453.
5. It seems to us that the plaint, though very clumsily drawn, need not necessarily be read as laying a claim for price of work done and also for damages under one and the same contract. The contract in the present case was only a contract as regards the rates having regard to the kinds of work that were to be done and did not fix the work itself as lying within particular chainages; it gave the defendant the right to stop the work with 10 days' notice; and it was open to the defendants to call upon the plaintiff to do any substituted work in the place of the original one. The true view to take of the plaint is that it combines two distinct causes of action; one founded on the original contract for which the claim was price of work done, and the other founded on a promise for other work and a requisition in connexion therewith under which the plaintiff was to maintain an efficient staff in order to Comply with which he had to incur expenses and for which expenses he claimed to be reimbursed by way of compensation. So long as the damages claimed are not regarded as damages for breach of the original contract, but may be treated as compensation for loss incurred by reason of the plaintiff having had to arrange for the new work that was promised, the said claim would not be obnoxious to the claim for the price of work done under the original contract. Judged by this test the first alternative claim for Rs. 3,000 for 'loss of profit over remaining work' can not possibly stand, and it has not been pressed before us. As regards Rs. 400 for costs of implements and Rs. 200 for cost of building shed that too have been abandoned, obviously because such a claim has no legs to stand upon. The remaining items canvassed before us are the following:
1. Advance lost upon labour:8 Masons at site. Rs. 300150 coolies at site. ,, 1,800100 coolies abroad (being recruited). 1,0002. Costs of Staff:2 agents at Rs. 50 for 4 monthsfrom September 1924 to December 1924. ,, 4002 servants at Rs. 15 for Ditto. ' 1203. Damages for unemployment.Of the plaintiff as he had to wait forsix months at Rs. 500 per month. ,, 3,000
6. All these items in 1, 2 and 3 are, according to the plaint, claims for damages on the footing of the men concerned being detained at the spot by reason of the alleged requisition of the defendants that the plaintiff was to remain in readiness for the work that was promised in substitution. Regarded as a claim for damages on the ground of the defendants not having given him the substituted work which they promised we do not think the plaintiff has really any case. The promise was a purely gratuitous one, made only for the plaintiff's benefit, and Mr. Mitter who has placed the plaintiff's case before us with great ability and care has not been able to lay his finger on any material which would go to suggest that the plaintiff was called upon to maintain any staff or incur any expenses. Such a claim in our judgment, is entirely unsustainable. But the Subordinate Judge has given the plaintiff a decree for a certain amount on these heads and we have therefore to examine his grounds for his doing so.
7. The judgment of the Subordinate Judge on the question of damages is faulty. He has treated the question of damages as if it arose both on account of breach of the original contract and also on account of nonfulfillment of the promise for substituted work that was made. He held that so far as keeping masons, recruiting coolies and maintaining a staff was concerned, the story was in the main untrue and on the weekly statements, Ex. J series, he held that the men who were there were not sufficient to complete the dressing of the banks in order to get them ready for measurement. He found however that the defendants had offered to pay Rs. 559-7-0 as damages for sudden stoppage of work, and being thus misled into thinking that a claim for damages on that ground was maintainable he went into the question as to what should be the measure of such damages. He found that the plaintiff's accounts showed that the plaintiff had advanced Rs. 3,000 or a little less which he had not been able to recover. It would appear from what he has said in his judgment that if the old work had not been stopped or if any substituted work had been given the plaintiff could have recovered the advances. He seems further to have been of the opinion that if this loss was taken into consideration in making the classification and Rs. 10-8-0 had been allowed as the initial rate for the chainages for which the said rate was claimed, the plaintiff would have got an additional sum of Rs. 2,887-12-0 which is very nearly what the plaintiff alleged he had lost upon advances on account of labour. He therefore allowed Rs. 2,887-12-0 on the ground of damages in the place of Rupees 559-7-0 which the defendants had offered. As already observed this part of the Subordinate Judge's judgment cannot be supported, at least not on the ground on which it was based. But we have already said that the learned Judge was not entirely to blame for it; because it does not appear to have been urged before him that an alternative claim for damages for stoppage of work was not maintainable along with a claim for price of work done, and also because an offer to the extent of Rs. 559-7-0 on account of such damages was made by the defendants themselves. We have been asked by Mr. Bagram to hold that this claim for damages has been wrongly allowed.
8. The defendants have not filed any appeal from the decree of the Court below and have not even preferred any cross-objections to the plaintiff's appeal. Mr. Bagram has relied upon the words of Order 41, Rule 22 and Order 41, Rule 33 for his contention that it is open to us to consider the validity of the judgment in so far as it has dealt with the question of damages. His contention in substance is that even though some particular item or items in an account may be found by the Court of appeal against the respondent and on that footing the amount for which a decree has been granted by the lower Court may have to be enhanced, still, the decree might be supported by showing that in respect of some other item the Court below made a mistake. We think this contention is sound subject to the qualification that the rule does not apply to decisions founded upon different rights or causes of action. We are in agreement with the interpretation put upon. Order 41, Rule 22 by Srinivasa. Ayyangar, J., in the case of Sriranga Thathacharia v. Srinivasa Thathachria AIR 1927 Mad 801 in which he held that under Rule 22 it is not open to a respondent to have adjudicated by the appellate Court rights or causes of action which have been decided against him in the Court below and in respect of which he has filed no appeal or memorandum of objections. As regards Order 41, Rule 33 we think it would be enough for us to say that though the terms of the rule are very wide, the rule should be cautiously applied and only in cases where but for recourse to it the ends of justice would be defeated: Shib Chandra v. A.C. Dulcken (1918) 48 IC 78.
9. In the present case the claim for damages that has been allowed by the Subordinate Judge, though it is unsupportable in law as a claim for damages for breach of a contract, cannot be regarded as unjust on its merits, seeing that in the opinion of the learned Judge the plaintiff was put to loss and this loss was not sufficiently taken into account in making the classification. Though we are not prepared to rely on the account filed by the plaintiff it is more than clear to our minds that the plaintiff had made a bad bargain in going in for this contract. The insistence with which he clamoured for higher rates for the hard soil before all the superior authorities concerned is a clear indication that he had incurred some loss, no matter through whose fault or in whatever way it may have happened. He had worked well and was in the good books of the defendants as appears from the letters already referred to. He did not hesitate to forgo all his prospects by taking recourse to a devise to hoodwink Mr. Bennett, if only to get a better classification in order to be able to recoup himself as appears from the letter Ex. 4 (b). In his letter Ex. 4 (m) to the Deputy Chief Engineer he complained that he had made advances to coolies to the extent of Rupees 2,000 but that the coolies had absconded. The railway authorities themselves considered him as somewhat hard hit or else they would scarcely have offered him some compensation for stoppage of work. We are therefore unable to regard the decree for damages which the Subordinate Judge has made as calling for our interference even though such interference would be warranted by Rule 33, Order 41 of the Code. There remains now only the question of interest, which is the claim under Sch. C to the plaint to be considered.
10. Interest.-We see no reason to differ from the view which the Subordinate Judge has taken of this matter. The result is that in our opinion the appeal should be allowed in part, the decree passed by the Court below being enhanced by Rs. 1,912-8-0 + Rs. 131-12-0=2,044-4-0 As regards the costs of this appeal in view of the highly inflated claim which the appellant made, we would allow him only the paper-book costs and Rs. 100 as hearing-fee.