1. The plaintiffs are proprietors of a mil) at Hinganghat which goes by the name of Rai Sahib Rekchand Mahota Spinning and Weaving Mill, The first defendant is the Mill Stores Trading Company of India, Limited, and the second set of defendants are their Managing Agents. In the month of December, 1913 there was a contract between the parties for the delivery of 600 bags, that is, 1,200 cwts. of Epsom salts at the rate of Rs. 2-11-6, delivery to be made every month is the year 1914 in lots of 50 bags each.
2. In pursuance of this contract the defendants delivered 300 bags up to the month of July, 1914. The plaintiffs allege that the defendants by their letter, dated the 10th August, 1914 refused to make any further delivery. The plaintiffs therefore claim damages for a breach of the contract. According to them the market rate in the month of August was Rs. 50 per cwt and on this footing they calcutta damages and interest amounting to over Rs. 10,000, but the claim is resbricted to Rs. 10,000. One of the defences set up was that the defendants were acting only as plaintiffs' agents. The ground of appeal based upon this contention has been abandoned before me, and I need not therefore make any further reference to this part of the pleadings. The defendants deny that the Court at Wardha had jurisdiction to try the suit. The main defence on the merits is contained in paragraph 4 of their written statement. They allege that the plaintiffs' orders were for the supply of 600 bags of Epsom salts-manufactured from Germany and to arrive from Germany under invoices made in the name of the mill. War having broken out between Great Britain and Germany in August 1914, it became impossible for any goods to arrive from Germany thereafter. The defendants have not since the outbreak of war received any consignment of goods in respect of the plaintiffs' order. They therefore say that it became impossible for them to perform the contract so far as it remained unperformed. They admit that on the 20th August 1914 they offered to secure for the plaintiffs Epsom salts to be purchased from the market in Bombay at the rate of Rs. 20 per cwt. and this was an offer made with a view to avoid the plaintiffs being pub to inconvenience. In addition to this the defendants deny that the plaintiffs are entitled to Rs. 10,000 by way of damages.
3. The first question to decide is whether the suit could be filed in Wardha or must be filed in Bombay, as contended for by the defendants. The contract between the parties was by correspondence. On the 3rd December 1913 the plaintiffs wrote a letter, copy of which (Exhibit F-6) has been filed. This was posted at Hinganghat in the Wardha District. The letter runs thus:—
“We shall feel highly obliged if you kindly favour us to quote your lowest price free on rails Bombay for best quality Epsom salt in double bags and an extra superior white quality China day with the samples to make a contract with us for the year 1914 as early as possible. Our consumption of Epsom salt is about 50 bags while that of China clay 10 casks a month which please note and oblige”
4. To this the defendants replied on the 16th December (Exhibit P. 1):—
“We beg to thank you for your favour of the 3rd instant, which has come to band to-day, and have much pleasure to quote, as desired, our lowest contract rates for—
Best quality Epsom salt in double bags at Rs. 2-11-6 per cwt.;
Special white extra superfine China clay at Rs. 70 per ton;
Best white super China clay at Rs. 62 per ton.
Terms—Nett for Bombay—invoices in the name of your mills for the exemption of duty.
Trusting to be favoured with your order which will have our beet and prompt attention.”
5. The plaintiffs' reply is Exhibit D.1, dated the 26th December:—
“With reference to your letter of the 16th instant about your contract rates of Epsom salt and China clay for the year 1914, we are glad to inform you that we accept your rate of Epsom salt at Rs. 2-116 (Rupees two annas eleven and pies six) only per cwt, in double bagging nett tree on rails, Bombay. Invoice in the name of our Mill for the exemption of duty as usual.”
6. The letter also says that the price quoted for China clay was too high and the plaintiffs would not enter into a contract for it just then, but sent an order for a small quantity of China clay. On the 27th the defendants wrote the letter (P-2):—
“Your much esteemed favour of 26th instant to hand and we are much obliged to you for placing your yearly contract for Epsom Baits for 1914 with us at Rs. 2116 per cwt in double bag nett f.o.r Bombay, you to supply us certificate on Collector of Customs for exemption of duty.
“We note what you state re China clay and are forwarding 8 casks at Rs. 70 per ton nett f.o.r Bombay and await your further orders.
“Please note that our quoted price of Rs. 70 per ton was for a yearly contract on the understanding that we were to get a letter on Customer Collector but now that we are supplying same from stock we wilt charge you Rs. 70 per ton plus Rs. 5 duty and you will find time in order.”
7. Both sides rely upon Kamisethi Subbiah v. Katha Vankataswamy (1), where it was laid down that under the Indian Contract Act, where the proposal and acceptance are made by letters, the contract is made at the time when and at the place where the letter of acceptance is posted, though the contract is voidable at the instance of the acceptor by communication of his revocation before the acceptance has come to the knowledge of the proposer. According to the plaintiffs Exhibit D-1 is the letter of acceptance which was posted at Hingangbat in the Wardha District, the offer being made by the defendants in their letter of the 16th December (Exhibit P-1) where they quote their lowest prices. The defendant-appellants-argue that there was no pukka offer in their letter of the 16th December and the offer was in any case for the supply of both Epsom salts and China clay, that the final acceptance took place when they wrote Exhibit P-2 on the 27th December, and as this was posted in Bombay the contract was concluded there and that, that Court alone has jurisdiction to try the suit. They further say that it was open to them not to comply with the plaintiffs' order as their offer was not accepted with regard to both classes of goods.
8. I am not prepared to uphold the contentions of the defendants-appellants. The letters must be read in the way in which business men would understand them. There is no such connection between China clay and Epsom salts that we must regard the offer contained in Exhibit P-1 as an offer made for two things if both are accepted. In point of fact no objection was taken to the plaintiffs' acceptance of the offer regarding Epsom salts without an acceptance of the offer regarding China clay. Each quotation of price was a separate offer and any one of them may be accepted without Accepting the others, and this is how the letter would be interpreted by commercial men. I hold that the acceptance took place on the 26th December, when the plaintiffs posted their letter at Hingangbat. Hence the lower Court had jurisdiction to try the suit.
9. An application was made to have further evidence taken of one N.R Dastur, who was the manager of the plaintiffs' mill and has now ceased to be in their employment. This evidence was admittedly in the possession of the defendants, but they deliberately decided not to tender it. The fact that the lower Court has upon the evidence tendered rejected Exhibit D-25, a disputed document, does not, in the circumstances stated, justify my allowing the defendants an opportunity of supplementing their evidence, especially as the plaintiffs object to this course. I, therefore, orally disallowed the application and the case was thereupon argued on the merits.
10. Exhibit D-25 is a copy made from a press copy of a letter alleged to have been sent on the 30th December 1913 by the defendants to the plaintiffs. The plaintiffs deny having received it. The press copy is said to have been destroyed when the defendants removed their office, and Exhibit D-25 together with copies of other letters remained in the possession of their solicitors, Messrs Mulla and Mulla. The lower Court has disbelieved the evidence of Messrs Mehta and Mulla on the ground of its improbability. I am not prepared to endorse the opinion of the lower Court as I find many relevant questions have not been put to the witnesses and also because no one on the plaintiffs' side has deposed to on oath to their not receiving the letter.
11. Exhibit D-25 which bears the date 30th December, contains the following postscript:— “The contract is subject to the river “Elbe” being navigable. “There are two reasons why it is unnecessary to record a finding with regard to the exhibit as regards its authenticity and its meaning. In the first place it was not pleaded that the contract was subject to that condition; in the second place the contract having been concluded by the offer and acceptance on the 26th December 1913 the defendants were not at liberty to impose a new condition by a subsequent letter. There was no acknowledgment of this letter by the plaintiffs nor is there anything to show that the plaintiffs accepted this condition.
12. It is contended before me that we must look to the correspondence as a whole to determine the true nature of the contract. I am prepared to concede that it would have been open to the plaintiffs to have agreed to a modification of the contract by accepting a condition subsequently suggested by the defendants, but there is no trace of this to be found in the correspondence.’
13. In Perry v. Suffields, Limited (2), it is laid down:
“Though when a contract is alleged to be contained in letters the whole correspondence should be looked at, yet if once a definite offer has been made and accepted without qualification, and it appears that the letters of offer and acceptance contain all the terms agreed on between the parties at the date of the acceptance the complete contract then arrived at cannot be affected by subsequent negotiation. When once it is shown that there is a complete contract, further negotiations between the parties cannot without the consent of both get rid of the contract already arrived at.”
14. It is an admitted fact that Epsom salt before the war was not manufactured in India and all Epsom salts came from Germany. It is not however in evidence that it is not produced in other countries such as the United States of Japan. The plaintiff say that they did not know that Epsom salts came from Germany. I am prepared to accept their statement so far, but I think their manager probably knew from what country Epsom salts ab the rate quoted came. Having held that Exhibit D-25 must be excluded from consideration I must now look to the term of the contract. The contract implies that the Epaom salt was to be imported by sea and for the purpose of exemption of duty the plaintiffs are to certify that it was required for purposes of their mill. It is in evidence that best quality Epsom salt means marketable quality. It is true that the defendants made arrangements to fulfil their contract with some firm in Germany, but the contract leaves them the option to import it from any other country they please. The plaintiffs could not have refused delivery if Epsom salts from Japan or America, had been tendered. Can it be said than when war was declared with Germany the performance of the contract between the parties became impossible? Trading with the enemy no doubt became unlawful, but sale of German goods was not unlawful. There is evidence that there was some stook in Bombay available for sale but at a very high price. The delivery was neither impossible nor impracticable in the ordinary sense of the term. The performance of the contract on the part of the defendants no doubt became very onerous, as there was also not sufficient stook in the Bombay market for the requirements of all the mills. Mere difficulty or the need to pay exorbitant prices does not bring the case under section 56 of the Contract Act as pointed out by Beaman, J., in Karl Ettinger v. Chagandas and Co. (3). I cannot agree with the contention that after the war the contract became void by reason of its performance becoming impossible within the meaning of section 56 of the Contract Act. The defendants unconditionally undertook to perform the contract. They did not qualify their liability by using suitable language. As regards the damages there is a cross-objection filed by the plaintiffs in which they ask for interest. I can find no authority for this claim of interest. The lower Court has taken a very fair average price prevailing in the market at the time. The defendants cannot complain when they offered on the 26th August to procure Epsom salts for the plaintiffs at Rs. 20 per cwt. The evidence as regards the price which varied from time to time is not of such a character that I should be justified in differing from the learned Judge in the Court below. The result is that the appeal and the cross-objections are both dismissed with costs.
15. Appeal and cross-objection dismissed.