Asutosh Mookerjee, J.
1. This is an appeal by the defendant in a suit for damages for breach of contract. On the 1st October 1910, the plaintiff stipulated with the defendant to engage his elephant up to the 31st March 1911 for a sum of Rs. 700 for the purpose of khedda operations (to capture wild elephants). The contrast provided that the elephant would be delivered by the defendant to the plaintiff on the 1st October 1910; but the defendant obtained an extension of time till the 6th October, and yet did not deliver the elephant till the 11th October. The plaintiff refused to, accept the elephant, and on the 26th October 1910 instituted this suit for recovery of damages to the extent of Rs. 2,000. The plaint states that, according to the terms of the contract, the defendant, upon failure to make over the elephant on the date specified, would pay the plaintiff the sum of Rs. 2,000 as compensation. The Courts below have found that this is not a correct interpretation of the contract, which merely provided that, if before the expiry of the term of six months, the defendant, for any reason, takes back the elephant, he will render himself liable to pay damages to the extent of Rs. 2,000. Consequently, the foundation of the claim for damages as laid in the plaint cannot be sustained; and the Courts below would have been justified to dismiss the suit. The Courts below, however, have not taken this strict view and have been more considerate to the plaintiff, as they have determined the question of the loss actually sustained by him from the failure of the defendant to deliver the elephant on the date specified. The Subordinate Judge held that the damages should be assessed at Rs. 869; the District Judge, on appeal, has reduced the amount to Rs. 669. This decree is now assailed before us on two grounds; first, that as time was not of the essence of the contract, the plaintiff is not entitled to a decree for damages; and secondly, that, if this contention fails, damages have been over assessed.
2. Section 55 of the Indian Contract Act provides that when a party to a contract promises to do a certain thing at or before a specified time and fails to do any such thing at or before the specified time, the contract, or so much of it as has not been performed, becomes voidable at the option of the promisee, if the intention of the parties was that time should be of the essence of the contract. What, then, was the intention of the parties in the case before us? As Lord Cairns observed in Bowes v. Shand (1877) 2 App. Cas. 455 at p. 463 : 36 L.T. 857 : 25 W.R. 730 : 46 L.J.Q.B. 561, merchants are not in the habit of placing upon their contracts stipulations to which they do not attach some value and importance. Prima facie, then, the parties may be deemed to have intended that time should be of the essence of the contract in the case before us. This conclusion is confirmed by the circumstance that the defendant obtained an extension of the time for delivery of the elephant; if the time were not of the essence of the contract, he need not have asked for extension of time. We must thus proceed on the assumption that according to the true intention of the parties time was of the essence of the contract. This leads us to the question, whether the damages have been assessed properly.
3. Under Section 73 of the Indian Contract Act, when a contract has been broken, the party who suffers by such breach is entitled to receive from the party who has broken the contract, compensation for any loss or damage caused to him thereby, which naturally arose in the usual course of things from such breach or which the parties knew, when they made the contract, to be likely to result from the breach of it. Let us test the award made by the District Judge in the light of this principle. The compensation decreed has been assessed under three heads; first, wages of mahuts and phundis advanced by the plaintiff (Rs. 456), less the amount recovered by him (Rs. 264); secondly, a sum of Rs. 27 spent in the purchase of jute and other articles; and thirdly, a sum of Rs. 450, which represents the cost of hire of another elephant engaged by the plaintiff to be used along with the elephant of the defendant. We are of opinion that the damages have been correctly assessed under the first two heads but the claim must be disallowed in respect of the third head. The District Judge has found that the other elephant, engaged by the plaintiff from Nowgong, arrived after the defendant tendered his elephant. Consequently, when the defendant tendered his elephant, the other elephant was not available for use. That does not absolve the defendant from liability for damages for breach of his contract. But these damages cannot include the costs of hire of the other elephant. It is to be noted that at the time when the plaintiff was giving his evidence, he had not in fact paid Rs. 450 to the owner of the second elephant; that there is nothing in the record to show that the owner of the second elephant has ever demanded any sum from the plaintiff; that in his evidence-in-chief the plaintiff made no mention of damage arising from the proposed hire of the second elephant; and that when Making his statement of claim to the defendant's agent shortly after the breach of the defendant's contract, the plaintiff did not suggest that any sum was due from him to the owner of the second elephant. On these facts, we must hold that there was some feature in the contract relating to the second elephant absolving the plaintiff from liability to its owner. We accordingly hold that the plaintiff is not entitled to damages under the third head.
4. The result is that this appeal is allowed in part and the decree of the District Judge modified. The plaintiff will have a decree for Rs. 219 only. Each party will receive and pay costs in proportion to his success and failure in each Court. A self-contained decree will be drawn up in this Court so that there may be no dispute as to the amount of costs payable by one party to the other.