JUDGMENT
Lawrence H. Jenkins, C.J.
1. This is an appeal arising out of a suit brought to recover a sum of Rs. 4,455-8 as the price of 469 tons of coal delivered by the plaintiff to the defendants. The delivery is not disputed. But it is pleaded that there has been a breach of contract on the part of the plaintiff, which entitles the defendants to set-off a sum of Rs. 2,079 by way of damages against the sum of Rs. 4,455-8, and on that footing the defendants submit that he is only entitled to receive a sum of Rs. 2,376-8, and this they offered to pay and have actually brought into Court.
2. The contract out of which the suit arises is contained in bought and sold notes which, though they are not absolutely in identical terms, may, as Mr. Justice Fletcher says, be taken to be identical for the purpose of the present suit. The sold note on which the plaintiff relies is addressed to Messrs. Banerjee & Co., Managing Agents, Kunji Munji & Company, who may be taken as identical with the plaintiff for the present purpose. It is signed by W.C. Banerjee and runs in these terms:
Dear Sirs,
I have this day sold by your order and for your account to Messrs. George Henderson and Company, Calcutta, the entire stock at Shalimar Depot or 700-800, say seven or eight hundred tons of best Kusunda steam coal freshly raised and free from shales, slates, water-marks, rubble, dust or other impurities at the rate of Rs. 9-8, say nine rupees eight annas, per ton free in boats at Shalimar. The sellers will not be responsible for any demurrage to the boats. Average basket weights. Payment on completion of delivery.
3. The principal question in dispute between the parties is whether delivery of 469 tons was, in the circumstances of this case, a sufficient performance of the contract. This turns upon the question what force should be attributed to the words “the entire stock at Shalimar Depot or 700-800, say seven to eight hundred tons of coal.” On the part of the plaintiff who, feeling himself aggrieved by the decision of Mr. Justice Fletcher, has appealed from that decision, it is urged that the mention of 700-800 tons is not binding, that it is merely a statement of expectation and nothing more, and not in any sense a warranty, and that he, the plaintiff, has performed his contract in its entirety by delivering 469 tons, that being “the entire stock at Shalimar Depot.” Mr. Justice Fletcher has not accepted that view, and in my opinion rightly. It is not of any great use to refer to decided cases for the purpose of determining the meaning of a contract of this kind. Regard must be had to the actual words used in this case, and to the circumstances under which the parties contracted and to the relative positions of the parties, so far as they are disclosed by the materials before the Court. The position then is this: the owner of this entire stock at Shalimar Depot being a coal merchant, says that it is in quantity 700-800 tons, while there is nothing to suggest before us that the defendants ever saw the coal, or ever visited the Depot at Shalimar. At the same [ time there is no evidence of any custom of trade or usage which would give to the words used any particular meaning in relation to a contract such as this. In the circumstances, I think it is a fair reading of the words to say that there was a promise by the plaintiffs that the coal which constituted their entire stock was 7OO-8OO tons, and that it is impossible to treat the words used as a mere expression of opinion, which was not to carry with it any legal consequences.
4. Accepting that view, it necessarily follows that there has been a breach by the plaintiff of his obligation under the agreement between him and the defendants, and though the damages are at present unascertained, and the case therefore does not come within Section 111 of the old Civil Procedure Code or the corresponding order of the present Code, still the circumstances are such as to entitle the defendants to rely on this by way of equitable set-off in answer to the plaintiff’s claim, so far as it is available for that purpose.
5. The only other point in the case is whether a breach has been established. It is quite true that there is no oral evidence adduced, but at the same time it is manifest that the parties went to trial on an understanding that the case should be determined, as far as possible, on the pleadings and the correspondence; and reading the pleadings and the correspondence, I think it is established that there was a breach. It there was a breach, it is necessary, for the purpose of determining the damages, to fix the date of that breach, and it has been agreed before us by the parties that the 28th of November 1907 should be taken as that date. The decree as drawn up provides for a reference to the Official Referee to inquire and report what damages were sustained by the defendants by reason of the non delivery of the portion of the coal contracted to be supplied by the plaintiff as in the pleadings in the suit mentioned.
6. The measure of damages is the estimated loss in the ordinary course of events arising from the breach of contract: where there is an available market for the goods in question, as apparently is the case here, the measure of damages is prima facie the difference between the contract price and the market or current price of the coal on the 28th of November 1907. If, as is said, there was no certain market rate, then evidence must be adduced for the purpose of showing what was the measure of damages.
7. The result then is that, in my opinion, the decree founded on Mr. Fletcher’s judgment is correct, and this appeal should be dismissed with costs.
Woodroffe, J.
8. I agree. To my mind the point seems to be quite clear. Had the plaintiff intended to sell by estimation only, it was open to him to state that fact. The word “say” may perhaps be a word of some ambiguity. It was, however, open to him to state that he sold the entire stock of “about” 700 or 800 tons, or “by estimate” 700 or 800 tons, or “approximately” 700 or 800 tons, using these or other words which would appropriately indicate a sale by estimation,. But he sells in fact “the entire stock or 700-800 tons. And then we must look at the circumstances of the case that he was himself a coal dealer, that the goods were not, as in many of the cases cited to us, future goods. The goods were actually in existence at the date of the contract and at the depot, and I think it must be assumed, in the absence of anything to the contrary that the goods being in existence, the seller knew what the quantity was which he was selling. In my opinion, therefore, the words “700 or 800” tons were not, as has been contended, a mere collateral estimate of quantity, but an integral part of the contract, that is to say, they were words descriptive of the preceding words “entire stock.” It is not likely, in the circumstances of this case, that a stock of existing goods would be sold or bought without a statement of the quantity of the stock sold.
