1. This appeal arises out of a suit for damages for breach of a contrast.
2. The plaintiff who is a dealer in flour and other goods at Rungpur used to get his goods from the defendant's firm at Allahabad.
3. The questions which arise in this case are first whether there was a complete contract between the parties; and secondly, if so what is the principle on which the plaintiff should be entitled to damages.
4. The Courts below are of opinion that there was no complete contract.
5. Now, the question whether there was such a contract or not, is to be decided upon a construction of certain letters which passed between the parties.
6. The first letter is dated the 21st July 1914 written by the plaintiff to the defendant. In this letter (he plaintiff stated as follows : ' Within 5 or 7 days in July I shall send an order for one wagon of goods. Please write swoda in respect thereof.' It was further stated that the plaintiff would fend for 2 wagons for delivery in August, 2 wagons in September, 2 wagons in October and 2 in November and that these wagons would be sent for (one at a time) at an interval of 15 days. The plaintiff asked the defendants to quote rates. On the 24th July the defendants sent a reply in which they gave the present rates i.e., for July and they stated that in August and September the rate would be increased by 2 annas in the maund and in October and November the increase would be at the rate of 4 annas per maund over the July rate.
7. It appears that on the 24th July the plaintiff had sent a telegram ordering delivery of one wagon of goods on a former contract and that was despatched by the defendants. On the 26th July 1914 the plaintiff wrote as follows: 'The goods ordered for might have been sent by you; please write suroda for one wagon for the month of July in respect of flour eta.' Then followed the rates of the goods as quoted in the defendant's letter dated the 24th July, Then the letter proceeds as follows: 'Please write swoda for four wagons in respect thereof. On arrival of the goods ordered, I shall send for one wagon of July swoda. Further I shall make the swoda for the months of October and November pucca hereafter. Please send a reply to this letter.' This is the document upon which the suit is based, as completing the contract for delivery of one more wagon in July and two wagons in August and September.
8. The translation given of the letters which were in Hindi or Mahajani character is taken from the translation supplied to us on behalf of the appellant and which is different from the translation made by the Court translator of the appellate side. The translation made by a senior translator on the original side of this Court agrees with the translation made by the appellant, We have also been supplied with copies of the original letters in the Bengali character.
9. The main point to be considered in connection with the construction of the letters is whether the words * * (sowda likhengeji) refer to the writer of the letter or to the addressee, i. e., do they men ' I will write sowda ' or ' you will please write sowda.'
10. The Courts below have apparently taken the view that they mean the former showing that the contract was not yet complete. But it appears from Exhibit 2 that in the last line of the letter, namely ehithika jabab likhengeji the words 'likhenge ji' cannot possibly refer to the writer of the letter: they must have reference to the person addressed namely the defendant : and if that is so, the same meaning should be attached to the words appearing in the earlier part of the document viz., gari and sowda likhengeji. We think that the words sowda likhengeji must mean that the defendant was to enter up the sowda (contract).
11. Then the learned District Judge lays much stress on the fact that the words used in the document are used in the future tense and that is also relied upon by the learned Pleader for the respondent. But the future tense used is in connection with the contract for October and November for which, it is expressly stated in the letter, contract would be made hereafter : and that is distinguished from the sowda (contract) for July and August with respect to which the plaintiff wrote to the defendant to 'write sowda or contract.' That this is the correct construction of the document, also appears from the fact that the plaintiff made a remittance of Rs. 850 to the defendant firm at Allahabad on the 1st August and also sent Rs. 1,000 on the 5th August and orders were sent along with the remittance giving details of the goods to be supplied under the terms of the contract.
12. It appears that on the 29th July the defendants sent a telegram to the plaintiff in which they gave different rates from what were quoted in their letter dated 24th July, On the next day, 30th July, the plaintiff wrote a letter to the defend, ants expressing surprise at the different rates given in their telegram. It was further stated in that letter that the plaintiff had accepted the proposal of the defendants and sent orders for 6 wagons of goods of which the defendants had despatched only one. The letter went on to say, 'The rest i. e., 1 for July and four for August and September still remain undespatched. After entering into contract with you, I have sold the goods here to my customers in advance at the old rate mentioned in your letter. So you see I will be put in a very false position and incur severe loss if I be driven to accept the rate mentioned in your telegram. I hope you will be pleased to rectify your mistake and despatch the goods at the former rate mentioned in your letter of 1st Sravan Sudi Sambat 1971.'
13. Now, before the telegram of the 29th July was sent from Allahabad, a letter dated 28th July had been despatched on the 29th by the defendants to the plaintiff in which the same rates as ware quoted on the 24th July, were given : and up to that time there was no repudiation of the original contrast. It was only in the telegram so despatched that the defendants appear to have resiled from the original contract.
14. The defendants did not return the money until after the institution of the suit which was instituted on the 14th September 1914, Even if there was no complete contract contained in Exhibit 2, it seems to us that after the defendant had sent in his quotation and the plaintiff made the remittance and gave the order, there was acceptance of the offer which constituted a complete contract.
15. The plaintiff asked the Court to call upon the defendants to produce the letters and the Court made an order to that effect. But the defendants did not produce the letters. It does not appear whether the defendants were actually served with notice to produce them. However, that may be, the fact remains that in accordance with what was written in Exhibit 2, the plaintiff made the remittance and gave orders for the goods to be supplied.
16. We are accordingly of opinion that there was a complete contract upon these documents.
17. The next question is as to the damages.
18. The plaintiff has stated his claim for damages in two schedules attached to the plaint. In the first, he gave the difference between the market rate at Allahabad and the contract rate at Allahabad and in the second schedule he gave the market rate at Allahabad and the market rate at Rungpur and claimed the balance after allowing for costs of freight and bags. The learned Subordinate Judge was of opinion that the principle on which the damages were claimed was erroneous because in his opinion the damage in the second schedule was too remote and should not be allowed. The learned District Judge 'was also of opinion that the plaintiff in claiming damages at the rate prevailing at Allahabad had claimed on an erroneous principle. He apparently overlooked the fact that in the second schedule the plaintiff had also claimed the difference between the contract rate and the prevailing rate on the day of delivery at Rungpur.
19. Our attention has been drawn to a passage in the judgment of the learned Judge where he says ' There is no reliable evidence to show at what rates the goods were available at Rungpur the place of delivery,' Before taking up the question of damages, the learned Judge in another portion of his judgment pays ' In view of the finding recorded above, it is hardly necessary to decide whether the plaintiff suffered any loss on account of his not having reserved the goods from the defendants. '
20. It is clear, therefore, that he did not properly apply his mind to the question of damages and in the next place it appears from his judgment that he entirely overlooked the fact that the plaintiff had claimed damages at the Rungpur rate. We do not think that he meant to arrive at any definite finding on he evidence on the record which we understand is entirely one-sided.
21. We think that the rate of damages should be the difference between the price prevailing at Rungpur on the day of delivery and the contract rate plus the cost of freight and bags.
22. It these circumstances we think that the case should go back to the lower Appellate Court in order that the question of damages may be gone into and the appeal disposed of according to law.
23. Costs will abide the result.