1. Agreement to import goods for another-Clause in contract Held per BERTRAM C.J. and SCHNEIDER J. (PORTER J. dissentiente), that as the defect was a latent defect the defendant was entitled to claim damages, even though he had made no claim within seven days. BERTRAM C.J.-The fact that the buyer has examined the goods before accepting them does not prejudice any claim he may have as regards any defects which a reasonable examination would not have revealed. It is possible for a seller by special contract to contract himself out of the liability which the law imposes upon him, and the question in this case is, has he effectively done so ? In other words, is it the true meaning of the clause that the buyer undertook to make within seven days any complaint which he might have to make, even with regard to a defect, which within those seven days could not possibly be known to him, and renounced the right to make any such complaint afterwards The law regards with jealously any attempt by persons who are liable under the law unreasonably to relieve themselves of their responsibilities by the insertion of general words in a printed contract. It requires them in such cases to make their meaning clear by express words. KEARLEY & TONGE, LTD., v. PETER, 50, District Court, 2. Goods ordered from abroad by a firm of importers for com- The defendant requested the plaintiffs company (a firm of merchants carrying on an import business) to order through their correspondents certain goods from abroad, and agreed to pay the invoice price, plus a commission of 3 per cent. The defendant refused to accept delivery of a portion of the goods. Held, that as the contract was between the plaintiffs company and defendant, plaintiffs company was entitled to sue for damages. Where one party to an agreement repudiates it, the other is not bound to accept the repudiation. He may stand upon his contract, and hold the other party responsible and wait for the time of performance. If he does this, he is under no obligation to make any attempt to minimize damages. It is only where he elects to treat the repudiation as an immediate breach and to sue upon the contract at once, that it becomes his duty to do his best to minimize damages. THE HOLLAND CEYLON COMMERCIAL Co. v. MAHUTHOOM 3. Person acting as pawnbroker without a license-Action for Plaintiff was convicted for acting as a pawnbroker without a license, and was ordered to return the pledges to the persons who gave them. He thereafter brought this action for recovery of money lent. Held, that the contract was not void, and that the action was maintainable. APPUHAMY v. FERNANDO, 180, Court of Requests, PAGE 78 152 221 Contract Agreement by tavern-keeper to give Re. 1 per gallon to renter-Contract supply system-Impossible to make profit of Re. 1 if arrack was sold at the price fixed by Government-Is contract illegal? A tavern-keeper agreed to pay the renter Re. 1 per gallon of arrack sold at the tavern. If the tavern-keeper sold the arrack at the price fixed by the Government, he could not have made a profit of Re. 1 per gallon. Held, that the agreement was void as against public policy. CHELLIAH v. Soose, 163, District Court, Mannar, 9,179 5. Insurance C.i.f. Contract—Indent for goods from England -No separate policy of insurance-Arrival of goodsTender of goods, but no policy of insurance-Is defendant bound to accept goods? 6. The plaintiffs and defendant entered into a c.i.f. contract, whereby the plaintiffs agreed to indent for certain goods from England for the defendant. The goods duly arrived in Colombo, and were tendered to the defendant, but no policy of insurance was tendered. The defendant failed to take delivery, but did not state the absence of a policy of insurance as a ground of refusal. Held, that the defendant was not bound to accept the goods. In accordance with the ordinary incidents of a c.i.f. contract the plaintiffs were bound to effect a separate insurance over the goods ordered by the defendant, and tender to him the policy of insurance before they sought to enforce the contract against him. The tender of a certificate of insurance instead of a policy of insurance is not a compliance with the requirements of c.i.f. contract. HAYLEY & KENNY v. KUDHOOS, 302, District Court, Bond by a minor along with her father as surety to go through The first defendant, who was a minor, entered into a bond with her father as surety agreeing to pay His Majesty the King the sum of Rs. 300. The condition of the bond was that if the first defendant would complete the prescribed course for the students of the Musæus Training College and immediately thereafter be a teacher in some registered school for five years, then the obligation shall be null and void. The first defendant presented herself for some examination, and, on failing, abandoned her training. The Crown sued on the bond. The Commissioner of Requests held that as the bond was not in the form prescribed in the Education Code, the action was not maintainable. Held (1) That as the bond was for the benefit of the minor the contract was binding on the minor; and that as the father joined in the bond, the contract was binding on her. (2) The fact that the bond was not in the form prescribed in the Code did not affect the validity of the bond. PAGE 253 267 (3) Under our law even a penalty may be recovered if it be not ingens or immanis. (4) The amount stipulated even under the English law was in the nature of liquidated damages. THE ATTORNY-GENERAL v. COSTA et al., 76, Court of .. 7. Contract-Agreement to deliver oil f.o.b. at a fixed pricePayment against mate's receipts-In the event of shipment being hindered by the buyer, payment to be not later than three days after notice that oil was ready for shipment—Duty of buyer to nominate steamer within reasonable time. The defendant agreed to deliver in December, 1920, 100 tons of oil in pipes in good merchantable condition. The price was fixed f.o.b. Payment was to be against mate's receipts, but in the event of shipment being in any way hindered by the buyer, payment was to be not later than three days after notice was given to the buyer that oil was ready for shipment. Held, that as the contract was that delivery shall be made within a certain time f.o.b., it was implied that the buyer will nominate a steamer on board which the delivery was to be made, and that the nomination shall be given within a reasonable time so as to allow of the goods being put into a a deliverable state. Held, further, that the clause as to payment did not render it necessary for the defendants to put the oil into a deliverable state before the expiration of December 31, and to put it at defendants' disposal before that time, if the buyer had failed to give reasonable notice of the steamer for shipment. ADAMJEE LUKMANJEE v. FRADD & Co., 62, District 8. Agreement to deliver copra-Only a portion delivered-Is payment for deliveries made condition precedent to right to claim deliveries of balance ? 9. To decide whether one party to a contract is relieved from his future performance by the conduct of the other, and whether payment of a previous delivery is not a condition precedent to the right to claim subsequent deliveries under the contract, one must look into all the circumstances of the case. ZOYSA v. SAMEEM, 106, District Court, Colombo, 100.. Charter party—Agreement to hire ship for taking paddy from Respondents agreed to charter to plaintiff a sailing vessel for shipping paddy from Akyab to Jaffna at a specified rate per bag; and plaintiff advanced Rs. 1,700, which sum was to be deducted from the freight. If the Government of India did not grant license to export paddy to Jaffna, it was agreed that paddy should be shipped to Paumban. The export of paddy to Jaffna was prohibited by Government, and plaintiff alleged that he was unable to get permission PAGE 281 289 371 10. to export paddy to Paumban. He sued for the recovery Held, that plaintiff was not entitled to recover the advance, SOMASUNDRAM CHETTY v. SELVANAYAGAM, 310, District Contract to deliver naked mill oil at buyer's store.-Oil sent Plaintiff entered into a contract to supply to defendant, Held, it was not plaintiff's duty to unload, and that it POOVILANGAM CHETTY v. ANTHONY, 215, District Court, 11. Principal and agent-Goods delivered to another for sale outside Ceylon-Consignment of goods to foreign buyersUndisclosed principal-Insolvency of agent Action by assignee against principal for "short falls "-Election by foreign buyer to proceed against agent or undisclosed principal-Right of principal to ask for indemnity before paying assignee in insolvency PAGE 406 417 321 487 453, 428 A part-owner of a land is entitled to use it for taking SINGHO APPU v. HENDRICK APPU et al., 25, Court of 157 2. Person entitled to a building and not to the soil? Is he a 143 co-owner Costs 1. Failure of defendant to pay costs of the day before next date The defendant failed to pay the costs of the day Rs. 75, and a further sum of Rs. 6.50 to the plaintiff before the date of trial." On the date of trial defendants tendered this sum, but plaintiff refused to accept it, and claimed judgment in terms of the agreement. The District Judge 18-23 |