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Kasiram Pania Vs. Hurnundroy Fulchand - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported inAIR1921Cal809,58Ind.Cas.396
AppellantKasiram Pania
RespondentHurnundroy Fulchand
Cases ReferredWestacott v. Hahn
Excerpt:
sale of goods - due date of performance falling on sunday--trade usage entitling performance of contract on the day following, whether can be proved. - .....company; deposes that when the due date under a contract for delivery of piece goods falls on a sunday delivery is given, according to usage, on the monday following. in our opinion, the evidence is conclusive that in transactions with european firms, on the sale of piece goods, if the due date for delivery falls on a sunday, the delivery is given on the next following day, and by usage this is regarded by all concern-ed as due performance of the contract. this is also clearly consistent with the probabilities, as european firms, prima facie, would not be kept open for business on sundays. the next point for consideration is, whether the same usage prevails with regard to translations between indian dealers, when the subject matter of the sale is goods purchase d from a european firm.....
Judgment:

Asutosh Mookerjee, C.J.

1. This is an appeal from the judgment of Mr. Justice Buckland in a suit for damages for breach of a contract for the sale of goods. The terms of the written agreement between the parties made on the 9th August 1918 were a follows:

This is written to Bhai Hurnundroyjee Fulchand by Kasiram Pania with their compliments. Further, we have bought from you 45 bales, of Grey Shirtings No.B5-456-15-15 of Madadeo Company at Rs. 26-8-annas, ready goods; gown due 90 days from the 29th July; allowance and all conditions are according to the outside (co interest and) (that is, contract with European firm), the inside customs(i.e., the customs prevailing amount the Indian merchants). Broker Meghrajee Ramkumar Serowgee.

2. The case for the plaintiffs is that as the due date of delivery, namely, the 27th October 1918), was a Sunday, the contract could be performed on the following day, according to a well-known usage in the market which was described in the following terms:

There is a well-known usage in the market in connection with European importing firms that if the due date falls on a Sunday or on public holiday, the same is excluded and the following day is taken as the due date. The plaintiff firm and the defendant firm are well aware of the said usage and have always acted in conformity thereto.

3. The plaintiffs allege that, according to this usage, the due date for delivery under the contract was the 28th October 1918, when they tendered the goods to the defendants, who refused to accept delivery. The plaintiffs accordingly claim damages on the basis of the difference between the contract rate and the market rate on the due date. The defendants repudiate the claim on the ground that the usage alleged by the plaintiff a has really no existence and assert that transactions are carried on according to a different practice which they described as follows:

In transactions with the European firms if the due date falls on a Sunday, delivery is taken and given on the previous Saturday and not on the following Monday. In transactions between Indian firms, the due date is adhered to, irrespective of its being a Sunday or a week day, and delivery is given and taken on the Sunday, if that be the due date.

4. The defendants thus maintain that the due date under the contract was, as stated in the document itself, Sunday, the 27th October 1918, and they add that they offered to take delivery on that day, but the plaintiffs failed to give delivery as they had not the goods and were really not in a position to perform their part of the contract. Mr. justice Buckland has rejected as untrustworthy the evidence adduced by the defendants to establish the alleged demand for delivery and tender of the price on Sunday the 27th October 1918. He has further held that the plaintiffs have proved the existence of a usage that in respect of imported goods to be delivered from the godown of the importing firm, if the due date falls on Sunday or on a holiday, delivery is given on the following working day. On this basis, Mr. Justice Buckland has held that the due date under the contract in suit was the 28th October 1918 and that although the plaintiffs were ready and willing to deliver the goods on that date, the defendants refused to accept delivery. The claim has accordingly been decreed with costs. The defendants have now appealed against this decree.

5. We may state at the outset that we see-no reason to doubt the correctness of the conclusion that there was no demand for delivery and tender of the price by the defendants on the 27th October 1918 as alleged by them. The market on that date was against the defendants, and apart from contradictions in the oral evidence, it is extremely improbable that they would, of their own motion, offer to carry out the bargain on their part and thereby be involved in a heavy loss. We reject this part of the story of the defendants without hesitation as wholly unreliable. The real controversy in the appeal is, was there a valid trade usage as alleged by the plaintiffs, and, if so, what was its effect upon the contract between the parties.

6. According to the plaintiff?, there is a well-known usage in the market in connection with European importing firms that if the due date for delivery of goods falls on a Sunday or on a public holiday, the following day is taken as the due date. As regards transactions with European firms, there can be no doubt that the alleged usage is fully proved., Mr. Zallichi, manager of the piece goods department of Ralli Brothers, states that they have a custom by which when the goods (ready or forward) fall due to be delivered on a Sunday or holiday, they deliver them on the next following day. Mr. Barker, who is in charge of the piece goods department of Graham & Co., states that when the due date for delivery on a contract for sale of goods falls on a Sunday, his firm, gives delivery On the following working day, that is, on the first working day after Sunday. Mr. Morgan, who is in charge of the piece goods department of the Bombay Company; deposes that when the due date under a contract for delivery of piece goods falls on a Sunday delivery is given, according to usage, on the Monday following. In our opinion, the evidence is conclusive that in transactions with European firms, on the sale of piece goods, if the due date for delivery falls on a Sunday, the delivery is given on the next following day, and by usage this is regarded by all concern-ed as due performance of the contract. This is also clearly consistent with the probabilities, as European firms, prima facie, would not be kept open for business on Sundays. The next point for consideration is, whether the same usage prevails with regard to translations between Indian dealers, when the subject matter of the sale is goods purchase d from a European firm of importers. The balance of evidence, in our opinion, points to the concussion that the question should be answered in the affirmative. Mr. Zallichi, to whose evidence we have just referred, after stating the usage of his firm, adds that Indian merchants who deal with them recognise the usage. To the same effect is the evidence of Lakshminarayan and Loonkaran, who are members of respect able firms of piece goods dealers and who confirm the testimony on oath of Mulchand, the Manib Gomasta of the plaintiffs. The existence of the usage alleged by these witnesses is highly probable, because if the goods are lying in the godown of the importing firm, it is impracticable to give delivery on a Sunday; in such circumstances one would expect that delivery would be accepted if given on the next following working day, just as in the case of direct transactions with European, firms. We are not unmindful that there is some evidence to show that delivery may be had on a Sunday, even from a European firm, by previous arrangement; but it is plain that such delivery, where given, is in the nature of a concession for the convenience or accommodation of the purchaser. Our attention has also been drawn to a ruling given by the Bengal Chamber of Commerce on the 25th June 1902, in the following terms:

Sundays and Charter Party Holidays in relation to Mercantile Contracts.--Goods falling due for delivery on Sunday or on a Charter Party and shipping holiday must be delivered on the day previous to the Sunday or the Charter Party and shipping holiday, as the case may be.

7. No evidence has been adduced to show the circumstances under whish the ruling was given; it is dear, however, that this has not been regarded as universally or even generally binding by mercantile firms and has not been observed by such firms as Ralli Brothers and Graham & Co. It is further worthy of note that it is not the case for the defendants that they demanded delivery on Saturday the 26th October 1918 as the due date. Their allegation is that Sunday was the due date; consequently the ruling of the Bengal Chamber of Commerce just mentioned can be of no possible assistance to them. This takes away from the value of the evidence of Mr. Fildes, who is piece goods sales-master of David Sassoon & Co. (presumably a firm of non-Christian Jews) and who states that his firm has followed the Chamber of Commerce ruling. A similar observation applies to the evidence of Mr. Old field of the Overseas Export and Import Company, a firm whish has acted on the Chamber of Commerce ruling. It is not necessary to refer in detail to the other evidence on the record, as, on the whole, we agree with Mr. Justice Buckland that the usage alleged by the plaintiffs covers not merely direst transactions with European firms but also transactions relating to goods imported by European firms and delivered from their godowns. In the case before us, as the defendants were aware, the plaintiffs were the Banians of the Bombay Company, an importing firm whose goods were the subject-matter of the contract. In such circumstances, the usage, if valid in law and not inconsistent with the written contract, would be applicable so as to make Monday the 28th October 1918 the due date for delivery.

8. It is well settled that, in the absence of statutory provision or trade custom or usage to that effect, the fact that the performance of a contract falls due on a holiday does not alter the rights of the parties by suspending the transaction of private business. This is well illustrated by the case of Richardson v. Goddard (1859) 23 Howard 23 : 64 U.S. 412, where a ship arrived in port with a cargo of cotton and on a holiday discharged the goods, whish were destroyed by accidental fire before they were removed. The question arose, whether there had been good delivery. It was ruled by the Supreme Court of the United States that in the absence of proof of statutory or customary prohibition of the transaction of business on a holiday, the delivery must be deemed to have been valid so as to throw the loss on the consignee. Substantially to the same effect is the decision of Farran, J. in Lalchand Balkissan v. Kersten 15 B. 338 : 8 Ind. Dec. (N.S.) 230. Consequently, in the present case, the plain tiffs have to establish that they were entitled to perform the contract on the day following the Sunday, by reason of the existence of a valid usage which may be deemed to have been incorporated in the contrast between the parties. As was pointed oat by Sir John Coleridge in Juggomohun Ghose v. Manickchund 7 M.I.A. 263 : 4 W.R. (P.C.) 8 : 1 Suth. P.C.J. 357 : 1 Sar. P.C.J. 681 : 9 E.R. 308, such mercantile usage, though it needs not either the antiquity, the uniformity or the notoriety of custom, must be so well known and acquiesced in that it may be reasonably presumed to have been an ingredient tacitly imported by the parties into their contract. To the same effect is the observation of Baron Parke in Gibson v. Small (1853) 4 H.L.C. 353 at p. 397 : 1 Com. L.R. 363 : 17 Jur. 1131 : 10 E.R. 499 : 94 R.R. 138:

The custom of trade, which is a matter of evidence, may be used to annex incidents to all written contracts, commercial or agricultural, and others which do not by their terms exclude it, upon the presumption that the parties have contracted with reference to such us-age, if it is applicable.

9. It is consequently plain that the usage of which evidence is received must not be repugnant to or inconsistent with the written contract. This view is loudly expressed by Coleridge, J., in Brown v Byrne (1854) 3 E1. & B1. 703 : 9 Com. L.R. 1599 : 23 L.J.Q.B. 313 : 18 Jur. 700 : 2 W.R. 471 : 118 E.R. 1305 : 97 R.R. 715:

'In all contracts, as to the subject matter of which known usages prevail, parties are found to proceed with the tacit assumption of these usages ; they commonly reduce into writing the special particulars of their agreement, but omit to specify these known usages, which are included, however, as of course, by mutual understanding. Evidence, therefore, of such incidents is receivable. The contract, in truth, is partly express and in writing, partly implied or understood and unwritten But in these case s, a restriction is established on the soundest principle, that the evidence received must not be of a particular which is repugnant to, or inconsistent with, the written contract. Merely that it varies the apparent contract is not enough to exclude the evidence, fur it is impossible to add any material incident to the written terms of a contract without altering its effect, more or Jess.' See also Boss v. Shaw (1917) 2 Ir. R. 367.

10. But in order that the material incident which it is sought to annex should fall within the exception of repugnancy, the incident must be such as, if expressed in the written contract, would make it insensible or inconsistent or thoroughly unreasonable. See the observations of Coleridga, J., in Guthbert v. Cumming (1855) 21 Ex. 405 at p. 408 : 24 L.J. Ex. 310 : 1 Jur. (N.S.) 686 : W.R. 553 : 25 L.T. 235 : 105 R.R. 593 of Lord Campbell, C. J. in Humfrey Dale (1857) 7 E1 & B1. 266 : 110 R.R. 587 : 26 L.J.Q.B. 137 : 3 Jur. (N.S.) 213 : 119 E.R. 1246, of Cookburn, C. J in Dale v. Humfrey (1858) E1. B1. & E1 1004 : 5 Jur. (N.S.) 191 : 113 R.R. 968 : 27 L.J.Q.B. 390 : 6 W.R. 854 : 120 E.R. 783, of Keating, J., in Russian Steam Navigation Trading Co v. Silva (1868) 13 C.B. (N.S.) 610 at p. 618 : 134 R.R. 676 : 143 E.R. 242, of Lord Esher, M.R., in Aktieselkab Helios v. Ekman & Co. (1897) 2 Q.B. 83 : 66 L.J.Q.B. 538 : 76 L.T. 537 : 8 Asp. M.C. 244 2 Com. Cas. 163, of Stephen, J., in Barrow v. Dyster (1884) 13 Q.B.D. 635 : 51 L.T. 573 : 33 W.R. 199 and of Kennedy, J., in Gulf Line v. Iayock (1901) 7 Com. Cas. 1 : 18 T.L.R. 14. These cases show that the real difficulty in interpretating transactions of this character lies in the reconciliation of two conflicting principles, namely, first, that evidence of usage is admissible on the presumption that the parties did not mean to express in writing the whole of the contract by which they intended to be bound but contrasted with reference to those usages, and, Secondly, that the evidence received must not be of a term which is repugnant to or inconsistent with the written contract. The distinction is well put by Mr. justice Story in Reside. The (1837) 2 Sumn. 567:

The true and appropriate office of a usage or custom is, to interpret the otherwise indeterminate intentions of parties, and to ascertain the nature and extent of their contracts, arising not from express stipulations, but from mere implications and presumptions, and across of a doubtful or equivocal character It may also be admitted to ascertain the true meaning of a particular word or of particular words, in a given instrument, when the word or words have various senses, some common, some qualified, and some technical, according to the subject-matter to which they are applied. But I apprehend that it can never be proper to resort to any usage or custom to control or vary the positive stimulations in a written contract, and a fortiori, not in order to contradict them. An express contrast o the parties is always admissible to supersede, or vary or control a usage or custom: for the latter may always be waived at the will of the parties. But a written and express contract cannot be controlled or varied, or contradicted by a usage or custom ; for that would not only be to admit parol evidence to control, vary or contradict written con-tracts, but it would be to allow mere presumptions and implications, properly arising in the absence of any positive expressions of indention, to control, vary or contradict the most formal and deliberate declarations of the parties.' To the same effect is the decision of the House of Lords in Produce Brokers Co. v. Olympia Oil and Cake Co. (1916) 1 App. Cas. 314 : 85 L.J.K.B. 160 : 114 L.T. 94 : 21 Com. Cas. 320. 60 S.J. 74 : 32 T.L.R. 115 and of the Court of Appeal in Westacott v. Hahn (1918) 1 K.B. 495 : 87 L.J.K.B. 555 : 148 L.T. 615 : 62 S.J. 348 : 34 T.L.R. 257.

11. The plaintiffs must consequently not only prove the existence of a trade usage but also establish that the usage when read into the written contract does not make it insensible or inconsistent. 'We must, in this connection, bear in mind that the mere fact that the usage viries the apparent contract is not of itself sufficient to exclude the evidence, for it is manifestly impossible to add any material incident to the written terms of a contract without altering its effect, more or less. The teat is, whether the incident, if expressed in the written contrast, would make it insensible or inconsistent or unreasonable. Examined in the light of the principle thus understood, the case of the plaintiffs is free from difficulty. The written contract states explicitly that, the due date of delivery is ninety days from the 29ch July 1918, that is, the 27th October 1918. We have then to read into the contract the proviso that if such date falls on a Sunday, the due date will be the day following. It may be conceded that this does vary the apparent contract; indeed, if it did not, the parties would not seek to prove the usage; but although the apparent contract; is varied, the contract as modified is sensible and self-consistent the added term consequently is not open to the objection of repugnancy. We hold accordingly that the plaintiffs have proved the existence of a legal custom annexed to the written contrast.

12. The result is that the decree made by Mr. Justice Buckland is affirmed and this appeal dismissed with costs.

Fletcher, J.

13. I agree.


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