TMI Blog1948 (6) TMI 2X X X X Extracts X X X X X X X X Extracts X X X X ..... horedas of the defendant firm in which the plaintiff company made known their requirements and the defendant firm contracted to supply them. Later the same day the plaintiff company wrote to the defendant firm: Dear Sirs, Tin We confirm having purchased from you to day tin in blocks, Penang quality, for forward delivery as follows: 35 tons at Rs. 215/8/- per cwt. net. 5 tons at Rs. 218/- per cwt. net. Our delivery instructions will follow. The parties are both merchants of standing. They had had previous dealings in various commodities, and from March until September 1941 they had had business transactions in tin totalling some 28 tons. It appears that the plaintiff company had contracts with the Government for the supply of tinned articles to the Supply Department, and there is every reason to believe that the plaintiff company were purchasing tin on this occasion for use in their factories in execution of their contracts with the Government. On 7-12-1941 the Japanese attacked Pearl Harbour and early on the 8th December it was known in Calcutta that a state of war existed between Japan, Great Britain and the United States of America. That morning M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om the evidence that neither the plaintiff company nor the defendant firm had any apprehension on the 8th December as to the due arrival of shipments from Penang for at any rate another month. 3. Their Lordships will hereafter refer to the appellant firm as the sellers and to the respondent company as the buyers. 4. Correspondence followed between the parties, but it is only necessary to quote 'the sellers' letter of 22-12-1941, which was as follows: 43, Strand Road, Calcutta, 22-12-1941. Messrs. Jeewanlal (1929) Ltd., 101, Clive Street, Calcutta. Re : 40 Tons of Tin Ingots. Dear Sirs, We are in duo receipt of your letter dated 22nd instant and in reply have to inform you that the basis of the above business is forward and owing to the unforeseen trouble in Penang the shipment is not possible. As such we have no other alternative but to cancel the contract. Yours faithfully, Sd. Pragdas Mathuradas. 5. On 20-2-1942 the buyers filed their plaint alleging wrongful repudiation of the contract by the sellers and acceptance of such repudiation by the buyers. A sum of Rs. 91,350 was claimed as damages, but it is now common ground between ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... record of the contract was the letter of 8-12-1941. In consequence of this acceptance, the Chief Justice (with whose judgment Lodge J. agreed) did not examine the oral evidence in detail. He felt unable to imply the condition put forward by the seller, or to accept the view of McNair J. that the contract became impossible of performance, and stated his conclusions as follows: In my opinion this was a contract for the purchase and sale of 40 tons of Penang tin as set out in the plaintiffs' letter of 8-12-1941, and its fulfilment was not contingent upon the arrival of the tin from Penang; further the contract was broken by the defendants, on 22-12-1941 as on which date damages should be computed. In my opinion this appeal should be allowed with costs here and below. 10. In opening the appeal before this Board, counsel for the sellers referred to a number of passages in the oral evidence given, before McNair J. and sought to rely on these passages, and in particular upon an answer given by Mr. H.K. Shaha in cross-examination, as establishing, that it was a term of the contract made orally on 8-12-1941 that the sellers should Only be bound to deliver the tin when it arrive ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nly a small quantity in stock, but there is no accepted evidence that the buyers were informed of this fact, or of the fact that the sellers had ordered 105 tons of tin from Penang. The figure 105, and not the figure 100, appears to be correct, from the documents. Moreover, it is quite clear, from undisputed evidence, that on and after 8th December, the sellers might have supplemented their stocks by buying tin in Calcutta. There is thus no ground for concluding that the buyers must have intended the term in question to be a term of the contract. On the contrary it seems unlikely that the buyers, who had Government orders to carry out, would have agreed that the sellers should only be bound to deliver, the tin if and when a consignment already ordered by them should arrive in Calcutta. As to the sellers, it is extremely likely that they intended to supply the 40 tons in question from the 105 tons which they had ordered from Penang; but even in their case it is by no means clear that they must have intended this to be a term of the contract. The findings of the learned trial Judge show that on 8th December the sellers had no apprehension as to deliveries from Penang, and they may ha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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