Contract Act (IX of 1872), Sections 51, 52 – Performance of contract–Reciprocal promise, breach of–Liability of party in default–Railway agreeing to give delivery after weighment–Failure to weigh, effect of.
1. The plaintiff received an order from one Raj Mohan Saha of Raiganj, district Dinajpur, to send him a certain amount of coal. The plaintiff Company not having that coal engaged the assistance of a firm Matroo Mal whose colliery is adjacent to that of the plaintiff. Matroo Mal apparently as agent of the plaintiff loaded the waggon and consignee it and the plaintiff’s manager had before this signed the Risk Note in Form H. The consignment arrived at a station Waria where the axle of a wheel of the truck became hot and the coal had to be taken out and put into another truck. For a considerable time the consignment was lost eight of and at last in about five months after the date of consinging it reached Raiganj. Raj Mohan Saha suspected that the weight of the coal was only about half of what had been consigned and it is his evidence that he agreed to take delivery if the Railway Compared on their behalf would weigh or measure the amount of coal so delivered. He got a letter from the East Indian Railway Company stating that the Eastern Bengal State Railway was being asked to have the coal re-weighed by measurement, the standard being 63 cubic feet to a ton. The Eastern Bengal State Railway refused to do this and the consignee Raj Mohan on his part refused to take delivery. The plaintiff, now has sued for compensation for this non-delivery alleging that the consignee has not paid him the price of the coal. The suit has been decreed against the defendant No. 1, East Indian Railway Company and dismissed against defendant No. 2, the Eastern Bengal State Railway.
2. It is urged that the plaintiff has no cause of action and cannot sue as plaintiff. As it appears to me, the plaintiff was in fact the consigner and Matroo Mal was the plaintiff’s agent. It is also urged that the plaintiff cannot sue unless and until the consignee took delivery. I fail to appreciate this contention, for reasons which I shall give presently.
3. The third point that is argued is that the Risk Note exonerates the Railway from all claims based upon short delivery. It seems to me that the plaintiff can claim that there has been no delivery of the consignment. The plaintiff has shown that he offered to take delivery on re-weighment and the East Indian Railway Company, the present applicants, agreed to this; so the performance of the contract was based upon reciprocal promises, of which obviously the prior in order of sequence was the promise to weigh or measure. When the Company failed to perform its promise to weigh or measure the consignee was at liberty to protect his own interest by refusing to like delivery. The matter is quite outside the question whether there was a Risk Note or not and it depends in the ordinary law as to the performance of contracts to be found in Sections 51 and 52 of the Contract Act. Reading the judgment of the Subordinate Judge it seems to me that he must have this in his mind in the last paragraph of his judgment. It is no answer to this argument to quote the well-known rule that the Railway has no obligation to weigh goods before delivery; for it is obvious that if the Railway makes the special contract to weigh, the individual with whom the contract is made can take advantage of the contract. The defendant Company has not disclosed the amount of loss, nor in fact asserted a loss: so the amount of damages could not be other than that decreed. I see nothing that is against the law in the decision arrived at by the learned Subordinate Judge. The application is rejected with costs. Bearing fee three gold mohurs.