072-NLR-NLR-V-14-LALLYETT-v.-NEGRIS-&-CO.pdf
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Present: Middleton J.LALLYETT v. NEGRIS & CO.
211—C. R. Nuwara Eliya, 5,052.
Jurisdiction—Order from Nuwara Eliya to Colombo for hams—Hamssent V. P. P.—Contract entered into in Colombo—Action forbreach of contract—Nuwara Eliya Court has no juri> action—CivilProcedure Code, a. 9.
The defendants advertised hams for sale, and the plaintiff byletter posted at Nuwara Eliya placed an order with them for threehams, which were despatched by value-payable post to NuwaraEliya, and duly' received and paid for. The plaintiff, alleging thatthe hams were unfit for human consumption, sued defendants at'the Court of Requests of Nuwara Eliya to recover Rs. 40.53 asdamages for breach of contract.
Held, the Court of Requests of Nuwara Eliya had no jurisdictionto try the case. The contract was made in Colombo.
mHE facts of this case are fully set out by Middleton J. in his
I judgment as follows :—
‘ ■ This was an action by the plaintiff, who resides in Nuwara Eliya,against the defendants, who carry on business in Colombo, torecover Rs. 40 53 as damages for breach of contract in deliveringthree hams alleged to be unfit for human consumption, and for asecond cause of action for the same amount as money payable bythe defendant to the plaintiff for money received at Nuwara Eliyafor the use of the plaintiff.
“ The plaint averred that the defendants advertised hams for sale,and that in consequence plaintiff, by letter posted at Nuwara Eliya,placed an order with them for three hams, which were despatchedby value-payable post to Nuwara Eliya, and duly received and paidfor, including carriage, by the plaintiff, and having been cookedwere found unfit for human food.
“ The defendant pleaded to the jurisdiction of the Nuwara Eliya ■Court, and the Commissioner of Requests upheld the plea under-section 9 of the Civil Procedure Code and dismissed the action,holding that the contract sought to be enforced was m ade in Colombothat the cause of action arose-there, and that claim for carriage andpacking, See., was so entirely subsidiary to the first cause of actionas to be included in it.”
The plaintiff appealed.
J.'W. Silva (with him Canakaratne), for the plaintiff, appellant.—The contract was entered into at Nuwara Eliya, and not in Colombo.
July 10,1911
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July 10,19ii The offer on the part of the defendant was the advertisement. TheLaUyett v. acceptance of the plaintiff wasj the letter ordering the hams. TheNegri* ds Co. tetter was posted at Nuwara Eliya. The acceptance was thereforeat Nuwara Eliya. Counsel cited Carlile v. Carbolic Smoke Ball Co.,1Anson, 45, 26.
The delivery of the hams in Colombo to the carrier was not deliveryto the plaintiff under section 31 of the Sale of Goods Ordinance^ asthe defendants sent the hams by value-payable parcel, and deliverywas on payment only at Nuwara Eliya. The cause of action,therefore, arose at Nuwara Eliya.
Bariliolomeusz, for the defendants, respondents.—The offer inthis case consisted in the plaintiff’s letter to defendants, and theacceptance consisted in the conduct of the defendants in sendingup the hams in terms of the order. The delivery of the hams wasin Colombo. Delivery to the carrier was delivery to the plaintiff.
Silva, in reply.
Cur. adv. vult.
July 10, 1911. Middleton J.—
His Lordship set out the facts, and continued :—
In my opinion the Commissioner was right. There is no evidenceon the record to show what the terms of the advertisement were,and in the absence of these I should deem it merely an invitationto do business, like the issue of a bookseller’s catalogue, not anoffer intended to create, and capable of creating, legal obligations.Carlile v. Carbolic Smoke Ball Co.1 does not therefore apply.
It could hardly be said that after defendants had run out of thehams they advertised, that the plaintiff by ordering some had laidthe defendants under a contractual obligation to supply the numberordered, or that the defendants were bound to supply hams if theydeemed plaintiff incapable of paying for them. The same obser- .vation would apply to books, of which the bookseller might haveonly a limited number.
The contract is formed by offer and acceptance, and 1 must treatthe plaintiff’s letter as the offer, and the despatch of the hams fromColombo was conduct communicating the acceptance. (Anson26). An offer is made when, and not until, it is communicated tothe offeree {idem, 23), and a contract is made when the acceptance iscommunicated, and acceptance must be communicated by words orconduct. The offer and acceptance, therefore, both took place inColombo, and the case of Cowan v. O’Connor applies. A contractalso is presumptively made at the place of acceptance. (Leake onContracts, p. 25,4th ed.) The contract, therefore, in this case soughtto be enforced, in the absence of any evidence to show the contrary,was made in Colombo.
1 {1893) 1 Q. B. 266.
* (1888) SO Q. B. D. 640.
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The defendants would only be liable if the hams were despatchedfrom Colombo in a bad condition, not if they went wrong on thejourney, unless the packing or some other act of theirs conduced totheir deterioration on the journey, as delivery to the carrier undersection 31 of “ The Sale of Goods Act, 1896,” is delivery to the buyer.The allegation here is that the hams were despatched in a badcondition from Colombo, and therefore the alleged cause of actionarose in Colombo. It was not contended before me that the allegedsecond cause of action was maintainable, and 1 agree with the Com-missioner that the charges for freight and packing really form partof the contract price. T think therefore, that the appeal must bedismissed with costs.
If the plaintiff has to go to Colombo to sue the defendants, andtake his witnesses there, and succeeds in establishing his case, hewould no doubt be entitled to all costs resulting from, and properlyincurred in, doing so.
Appeal dismissed.
July 10,1911
Middleton
J.
Cnllyetl e.Xeyria <Ss Co.