Scott, C.J:— The claim made by the plaintiffs is for damages for non-deli-very of 254 casks of alizarine dyes which the plaintiffs at Ellichpur had ordered from the defendants in Bombay.
2. Exhibits A and B are signed by the plaintiffs' and the defendants' agent respectively and sufficiently evidence the terms agreed to by the parties. The plaintiffs agreed to purchase goods on the conditions at the back of Ex. A, and the defendants by their agent agreed to the transaction, or sauda as it is called in Ex. B. The plaintiffs in Ex. A agree not to purchase alizarine goods from any other person nor to sell to any other person, while the defendants agree not to send their sun brand goods of alizarine to any merchant at Ellichpur other than the plaintiffs. The conditions include a shifting scale of commission or discount to be allowed upon the agreed rate of 7 annas and 9 pies per pound, net rate, Bombay godown delivery, the discount varying according to the amount which should be purchased up to 300 drums in the course of a year. On the back of the document, which is a printed form filled in certain parts in manuscript, the conditions are stated upon which the defendants are prepared to supply the goods. The first condition is that on an order reaching the office as to the goods out of the same which may be ready in the godown the same will be sent, and as to the remaining goods, intimation will be given of their arrival. On receiving the order, as to the goods which may not be ready, the merchant is to be responsible for taking the whole of such goods, notwithstanding the period which may have elapsed, provided he does not ask after twenty days that the goods should not be sent. The last condition provides that the goods, will have to be credited according to the date of despatch mentioned in the railway receipt and the sellers shall have discretion or liberty to send or not to send every single article out of those comprised in the order.
3. The document, Ex. A, even when read with Ex. B, does not impose any obligation upon the plaintiffs to take any specific quantity of goods and the quantity to be sent could only be ascertained as soon as the plaintiffs had sent an order for some of the goods. As soon as the order was received by the defendants, there would be a binding contract for the supply of goods mentioned in the order, but until such an order was received, it would be open to the defendants to withdraw from the transaction; by giving notice to the plaintiffs. That we take to be clear upon the authority of Offord v. Davies (1); Great Northern Railway Co. v. Witham (2) Bengal Goal Co. Ltd. v. Homee Wadia & Co. (3). The learned Judge of the lower Court has however apparently taken a different view, for in his judgment he states:
“If the writing of 25th April had stated that the plaintiffs agreed during twelve months to purchase from the defendants up to 300 casks of this particular dye, it might be said that the defendants by accepting the document had created a continuing offer whereby they pledged themselves to accept any order from plaintiffs up to 300 casks during the twelve months at the rate mentioned, and it has been contended that is the effect of the document. As far as I can see, one important item which should have been mentioned in the document of 25th April, viz., the actual number of casks up to the limit of which the plaintiffs might send orders, has been omitted…. It may be that the parties thought that they specified in the writing the limit up to which the plaintiffs might send orders, but the Court is not concerned with what the parties thought they were doing. It is only concerned with what the parties have actually done. So owing to these omissions the writing is so indefinite in its terms that no effect can be given to it.”
4. It does not appear to us that the omission of the maximum which might be ordered is any reason for not giving effect to the terms of Ex. A, provided any order has it fact been given. It might be that an order on a document not limited as to amount, as the learned Judge held this document to be, might be so large as to be utterly unreasonable, and have been sent merely for the purpose of creating a dishonest claim for damages, but such a case could easily be disposed of by the Court if it arose and the fact of such a possibility would be no reason for not giving effect to any bona fide orders sent according to the terms of the document. It may be observed that in the case of tender, for instance, Great Northern Railway Co. v. Mitham ; In re Gloucester Municipal Election Petition, Ford v. Newth (4) and Reg v. Demers (5), the tender which created a continuing offer was in no case limited in amount, but that was not held to be a reason for not giving effect to the terms of the document.
5. The learned Judge having come to the conclusion that Ex. A was so indefinite, for the reason stated, that it could not be given effect to, dismissed the suit, and, if that reason is good, it was sufficient to justify the dismissal. Consequently the proceeding upon which the trial had taken place came to an end. That proceeding was a summons for inspection in order that the plaintiffs might be able to ascertain from the documents in the possession of the defendants the amount of the different orders which they had sent for execution to the defendants under the document of 25th April, subsequent to the first order of 36 drums which had been executed, and the extent to which the defendants were able to comply with such orders. The learned Judge also held that the plaintiffs' case must fail by reason of the term of Cl. 5 of the conditions on the back of Ex. A. He held that conditions enabled the defenants to say on receipt of the order that they do not choose to send the goods. It appears to us that is reading a condition inserted for the benefit of the defendants far too strictly against their opponents. The condition must, if possible, be read as a whole and reconciled, and such a reading of condition 5 appears to us to be inconsistent with condition 1 which is that on the order reaching the office the goods which are ready in the godown are to be sent. Again it would be difficult for us to adopt the sweeping interpretation of the lower Court with regard to condition 5, even if it stood alone, for the first line of the condition is that the goods will have to be credited according to the date of despatch in the railway receipt, so it assumes a performance of the order at all events to some extent. Then it proceeds to mention the discretion or liberty which is retained by the defendants, and the words indicating the discretion commence:
“Order me se” (* * *), i.e, ‘out of the order’ the defendants are to have a discretion to send or not to send “hur ek chij” (* * *) ‘every single thing.’”
6. The condition appears to us to be more appropriate to an order for alizarine dyes put up in this and packed in boxes from which certain tins might be abstracted or certain tins of a particular colour might not be inserted and to be less appropriate to a contract for hermetically sealed drums of alizarine paste of one uniform colour, such as the goods the subject of the document of 25th April. But however that may be and even conceding that in a proper case the condition 5 might apply to an order for drums of alizarine paste, we do not think that it can be read as importing a power in the defendants to refuse altogether to perform an order which they have received.
7. It is also to be observed that the defendants have undertaken to perform the plaintiffs' order or orders of August as soon as the goods arrive. That appears from their letter of 13th August, and again from their letter of 29th August. With reference to the order of the 8th they say: “We shall send the goods when the steamer arrives.” Again in their letter of 29th August, referring to a letter of which the date is not given, they say: “On arrival of the steamer we will send the casks to you.” They could hardly after making that promise on the receipt of the order, refuse execution on the ground that although they had the casks arrived freshly from Europe, they did not care to perform the order.
8. We are therefore of opinion that the grounds upon which the suit was dismissed cannot be supported, and the decree must be set aside as also the order discharging the summons. We remand the case for disposal to the lower Court. Defendants must bear their own cost of the hearing before Macleod, J., and of this appeal. Plaintiffs' costs, costs in the cause.
G.P/R.K
9. Order accordingly.