M GULAMALI ABDUL HUSSAIN AND CO Vs. A P M S MOHAMED YOUSUF AND BROTHER
LAWS(MAD)-1952-11-3
HIGH COURT OF MADRAS
Decided on November 14,1952

M.GULAMALI ABDUL HUSSAIN AND CO. Appellant
VERSUS
A.P.M.S.MOHAMED YOUSUF AND BROTHER Respondents

JUDGEMENT

- (1.) This is an appeal by the defendants against the judgment and decree in C. S. No. 158 of 1945 on the Original Side of this Court. That was a suit instituted by the respondents for damages for non-acceptance of goods under six contracts. The appellants are a firm of merchants carrying on business in the export and import of metals in Bom bay and they have branches in Madras and other places. The respondents are a firm of merchants carrying on business in the purchase and sale of scrap metal in Madras, From 1942 the appellants were also, doing business as manufacturers of brass sheets and have been purchasing for that purpose scrap brass in the market of Madras and elsewhere. In this litigation, we are concerned with six contracts entered into by the appellants. with the respondents for purchase of scrap brass as per particulars mentioned below: Dates 'of contract Quantity Price 1. 30-11-1914 5 tons Rs. 136 per cwt. 2. 1-12-1944 5 tons Rs. 138 per cwt. 3. 17-1-1945 10 tons Rs. 166 pet cwfc. 4. 16-4-1.945 5 tons Rs. 149 per ewt. 5. 17-4-1945 15 tons Rs. 147 per cwt. 6. '24-4-1945 20 tons, Rs. 147 per cwt.
(2.) All these contracts were C. I. P. Bombay; no-time was fixed for the performance of the contracts.
(3.) In the performance of these contracts, the plaintiffs despatched 15 tons per S.S. "Seawall'.' on 19-4-1945 and sent invoice No. 408 therefor to the defendants (Ex. P. 17). The price charged thereunder is Rs. 166 per cwt. for 10 tons and Rs. 149 per cwt for 5 tons. That would be the price-payable under contracts Nos. 3 and 4 respectively. It must be noted that no goods had been despatched in performance of contracts Nos. 1 and 2, under which the prices were respectively Rs. 136 and Bs. 138 per cwt. That is to say, the plaintiffs appropriated the 15 tons to contracts Nos. 3 and 4, while contracts Nos. 1 and 2 remained unperformed. On 20-4-1945 the plaintiffs shipped 10 tons per S.S. "Janaki" from Cochin port and sent invoice-No. 408 therefor to the defendants (Ex. P. 18). The price charged in this invoice is Rs. 147 per cwt. and that is the price fixed under contracts Nos. 5 sad 6. Both the above invoices Exs. P. 17 and P. 18 were received by the defendants on 23-4-1945 and the same was acknowledged by them in Ex. P. 21.;


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