TMI Blog1949 (5) TMI 20X X X X Extracts X X X X X X X X Extracts X X X X ..... ld at Konnagar subject to the sanction of the authorities concerned. 3. The only main issue raised by the defendant company in this case is what was the contract between the parties ? The other issue is what damage , if any, is payable by the defendant? 4. The dispute has raged over the question as to who was liable under the contract to supply railway wagons. The defendant's case is that it failed to deliver the goods because it could not obtain any railway wagon. Non-delivery is said to be excused on the ground of failure to obtain railway wagons. The defendant contends that the plaintiff had the liability to supply wagons under the contract and the plaintiff has failed to do so. The plaintiff contends that he had no liability to supply wagons and his only contract with the defendant was that the defendant shall deliver and supply dust coal to the plaintiff at Konnagar Railway Station. The plaintiff contends farther that he made it quite clear in his offer which I have quoted above that the defendant was to 'supply' 6 wagons of coal and he also Bays that his only obligation as a manufacturer of bricks was to produce the priority certificate of the Chief Engin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dant wished to be exempted from its liability under the contract to supply coal on the ground of failure to obtain supply of railway wagons, it was the duty of the defendant to see that a special stipulation to that effect was included in the contract. In such a case where the dearth of railway wagons was present in the mind of the contracting parties, the absence of an express stipulation in the contract excusing performance of such contract on the ground that wagons were not available means that such ground cannot be put forward as an excuse for non-performance. Lord Wright in the Privy Council decision of Martime National Fish Ltd. v. Ocean Trawlers Ltd., 1936 A.C. 524 at p. 529 : (A.I.R. 1935 P.C. 128) observes as follows: In a case such as the present it may be questioned whether the Court should imply a condition resolutive of the contract when the parties might have inserted an express condition to that effect but did not do so, though the possibility that the things might happen as they did was present in their minds when they made the contract. This was one of the grounds on which the Judges of the Supreme Court were prepared to decide the case. Their Lordships do not i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the buyer. The risk of transit and the burden of the freight f.o.r. delivery contract therefore are borne by the buyer. But the words f.o.r. simpliciter do not in my judgment mean that the buyer in every case has responsibility to supply the railway wagons. Whether in a particular case on a particular contract the words 'f.o.r.' will mean buyer's responsibility to procure railway wagons or whether it will mean that the availability of railway wagons is the basis of the contract the absence of which will lead either to frustration or discharge of seller's obligation will depend on the facts of each case. The words 'f.o.r.' may qualify delivery or the place of delivery and again they may qualify the price. Here the words 'f.o.r.' in the third letter of 27th March 1943 according to my construction qualify price only because the place of delivery was by the other two letters the place of destination Konnagar Railway Station. In other words, this is a case not of 'f.o.r. delivery' which is never the place of destination but is a case of f.o.r. price only. 12. Mr. Meyer had relied on two cases-one is John Inglis v. William Stock, reported in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on and not f.o.r. Katrasgarh. As to how the delivery is to be effected at Konnagar Railway Station and on what basis and condition was a matter for the seller to stipulate. He could have stipulated that he would only accept the order if the buyer supplied the railway wagons. He did not do so on the facts of this case, and indeed accepted the order to supply 'six wagons.' He accepted the order which in my opinion meant liability to deliver at Konnagar Railway Station and necessarily implied liability to procure whatever means there could be to effect such delivery at Konnagar Railway Station. The third letter of 27th March 1943 was only for the purpose of fixing the price with reference to f.o.r. Katrasgarh. Apart from the price, that letter in my view has no bearing on other parts of the contract. The words 'f.o.r. Katrasgarh' therefore in that letter must mean with reference to the facts of this case as determining the price of the goods and nothing else. 14. The evidence in this case on the facts supports the view that I take. The plaintiff in answer to Q. 5 says he supplied to the defendant the priority certificate issued in his favour for 6 wagons of dust coa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d when that sanction was obtained. Thereafter there was an unqualified liability on the seller to deliver the coal at Konnagar Railway Station. 16. The conduct of the defendant also supports the view I take. Srimany admits that he sells soft and hard coke to private parties (Q. 55) and that he never sold any dust coal to any private party (Q. 68). A clear question was put to him in cross-examination as to whether the defendant specifically mentioned about the procurement of wagons by the buyer in cases of contracts of purchase by private parties and his answer was that he took special care to mention in such contracts in writing that the procurement of wagons would be the responsibility of the buyer (Q. 69 to 70). If that be so, it is inexplicable why in this case which is the only contract of its kind by the seller to sell dust coal to a private party this stipulation should be absent and the absence of such stipulation can only lead to the inference that it was not the intention of the parties in the contract before me that the liability to procure railway wagons will be of the buyer. Secondly, there is another conduct of the defendant which bears on this question. He never wr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... continue the indent or not. As there is no writing the gap was attempted to be filled up by Srimany by suggesting visits and conversation (Q. 33). There was a further embellishment of the case by introducing telephone in answer to Q. 104. The way Srimany answered these questions gave me the impression that he was not telling the truth before the Court. I have come to disbelieve his testimony particularly on this point of indent of wagons, apart from the fact that no suggestion about this conversation and telephone talks was ever put to the plaintiff in cross-examination. 17. There is yet another reason why I consider the non-availability of railway wagon not to be an excuse for non-delivery by the seller in this case. It is in evidence that the seller got several wagons against diverse other indents between the period from March to December 1943 and such supply of wagons was available at Katrasgarh Railway Station. The despatch book showing the destination of wagons from Katrasgarh Railway Station was disclosed at the eleventh hour and the plaintiff never had any opportunity to inspect them (Srimany Q. 44 and 45). It is also clear from evidence that railway wagons were coming t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in evidence in this case that railway wagons did leave Katrasgarh Station (Srimany Q. 44). What is being said is that such wagons could not be used for the buyer. This I am afraid cannot be a ground for which the buyer can suffer unless there is a special contract or stipulation to that effect. As there is none in this case I hold that it was no part of the buyer's obligation in this case to supply railway wagons. 19. In describing the nature and character of f.o.b. contract usually understood as indicating place of delivery the statement of the law on the subject is made in the following terms in 29 Halsbury (Hailsham Edition) p. 225 Art. 300: Where goods are sold F.O.B. the duty of the seller is to deliver the goods on board the ship at his own expense for carriage to the buyer. Normally the terms of the contract either specify the ship or line upon which the goods are to be loaded or entitles the buyer to give subsequent instruction to the seller in regard to the shipment. Now in the f.o.r. contract, the terms of the contract do not usually and do not in this case specify any particular railway or wagon on which the goods are to be loaded nor does the contract in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ticular railway at his own expense. These contracts differ from the ordinary inland contract of sale only in respect of the place at which the delivery is to be made which puts on the seller an item of cost over and above that of the goods themselves and also prima facie fixes the point at which the property passes and the risk falls upon the buyer and the price becomes payable. But the place of delivery in this contract is the place of destination, and if the differentiating criterion of Halsbury be applied, then this contract in suit is not really a f.o.r. contract at all but an ordinary inland contract. For these reasons I am unable to accede to the argument of Mr. Meyer advanced on the basis of the authorities on f.o.b. delivery contracts in John Inglis v. William Stock, (1885) 10 A.C. 263 : (54 L.J.Q.B. 582) and H.O. Brand Co. v. H.N. Morris Co., (1917) 2 K.B. 784 : (87 L.J.K.B. 101) that there is any obligation for the buyer apart from any special agreement to supply railway wagons in a contract with f.o.r. price. 20. On the question of construction and on the point of law. I am of the opinion that the first two letters of 21st March 1943 on a proper interpretation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the coal to the plaintiff. Srimany was so obsessed with the idea of impressing the Court that there was a stipulation for supply of railway wagons that when the Learned Counsel in cross-examination put to him the letter of 13th April 1943 and asked him whether it referred to sanction from the Controller of Coal Distribution, he insisted on saying that the letter related to the sanction from the Loco Superintendent of the Railway and not the Controller of Coal Distribution until he had to be faced with that letter and made to read it whereupon he had to admit that the sanction was not from the Railway but from the Controller of Coal Distribution (Q. 88 to 91). Again Srimany attempted to say that no priority certificate was produced by the plaintiff as indeed was the case made in paragraph 4 of the written statement. But then he had to admit that in fact priority certificate was produced by the plaintiff and made the best of a bad job in trying to get out of the allegation made in paragraph 4 of the written statement by suggesting that he meant 'effective' or 'have priority' certificate (Q. 109 to 119). 23. In my judgment therefore the defendant committed breach ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
