S. M . K. ALAWDEEN et al .Appellant, and HOLLAND COLOMBO TRADING SOCIETY LTD ,R

072-NLR-NLR-V-54-S.-M-.-K.-ALAWDEEN-et-al-.Appellant-and-HOLLAND-COLOMBO-TRADING-SOCIETY-LTD-R.pdf

Alawdeen v. Holland Colombo Trading Society, Ltd.
289
1952Present: Gratiaen J. and Gunasekara J.S. M. K. ALAWDEEN et ctl., Appellants, and HOLLANDCOLOMBO TRADING SOCIETY, LTD., Respondent
S. C. 311—D. C. Colombo, 20,182
Contract—Sale of goods—Repudiation by one party—Termination of contract—
C. I. F.—Bill of lading—Requisites of valid tender thereof—Breach of contract—
Justification—Plea taken at late stage.
In a contract for the sale of goods, one of the terms was that “ any tenderor delivery of the goods or of the bill of lading or of such delivery order or otherdocument or documents as will enable the buyer to obtain possession of thegoods shall constitute a valid tender or delivery The sellers caused thegoods to be placed aboard the ss. “ Laurenskerk ” at the port of Rotterdamfor shipment to Colombo under a contract of affreightment with the ownersof that vessel, the terms and conditions of which were set out in a bill of ladingwhich provided inter alia that the carriers could, if they thought it necessary,or expedient, arrange for the goods to be transhipped at any stage of the voyageunder a fresh contract of affreightment with the subsequent carriers.
The bill of lading was received by the sellers in Colombo in due course and,while the goods were still on board the ss. “ Laurenskerk ”, the sellers offeredto deliver it, duly indorsed, to the buyers upon payment of the price. On28th February, 1948, the buyers rejected the tender.
Held, that the sellers had made a valid tender in terms of the contract andtherefore became entitled to sue the buyers immediately for breach.
The sellers, however, elected to treat the contract as still subsisting. There-after an explosion occurred on board the ss. “ Laurenskerk ” and the goodswere transhipped to the ss. “ Triport ” for oncarriage to Colombo, suchtranshipment being expressly authorised by the terms of the original bill of- lading. On arrival of the ss. “ Triport ” in Colombo with the goods, thesellers again tendered the original bill of lading and demanded payment of thecontract price. The buyers rejected the tender, whereupon the sellersinstituted the present action.
Held, that the sellers had no cause of action against the buyers, as the originalbill of lading did not give the buyers a right to receive the goods from theactual,carrier thereof at the time of the tender.
Further, 1. A valid tender does not always necessitate actual physical pro-duction of the document tendered for inspection. 2. A contracting partywho gives a wrong reason for an earlier refusal to perform his contractedobligation is not thereby precluded from pleading subsequently a justificationwhich in fact existed, whether he was aware of it or not.
.^LPPEAL from a judgment of the District Court, Colombo.
H. V. Per era, Q.G., with V. A. Kandiah, for the-defendants appellants.
N.K. Choksy, Q.C., with S. J. Kadirgamar and G. L. L. de Silva, forthe plaintiff respondent.
Cur. adv. vult.
13HV.
J. N. B 24035-1,592 (1/53)
290
GRATIAEN J.—Alawdeen v. Holland Colombo Trading Society, Ltd.
August 18, 1952. Gratxaetst J.—
This is an appeal from a judgment and decree of the District Courtof Colombo awarding the plaintiffs a sum of Us. 13,697-06 as damagesagainst the defendants for breach of contract.
On 5th September, 1947, the defendants placed a written order (P8)with the plaintiffs for a certain quantity of “ white shirtings ” of a speci-fied description to be imported at the defendants’ risk and accountupon certain terms and conditions which would regulate the proposedcontract. The offer contained in P8 was in due course accepted bythe plaintiffs on 25th September, 1947, and in the result there cameinto existence a binding contract of sale between the plaintiffs (as sellers)and the defendants (as buyers) upon, inter alia, the terms and condi-tions set out in the document P8. The relevant terms and conditionsof the contract may be summarised as follows :—
the price was fixed on c.i.f. terms—meaning in this context that
the price was to cover the cost of the goods, the cost of insurance,and also the cost of the freight payable from the port of ship-ment to the port of Colombo, but not so as to imply that thecontract incorporated in other respects all the well-knownfeatures of a c.i.f. contract;
the goods were to bear certain specified marks of identification,
and were to be shipped in one lot not later than 31st January,1948
payment was to be “ cash against documents ”, the meaning
of which expression has been explained and qualifiedin clauses (1) and (4) of P8, namely, that “ payment was tobe made in cash on or before arrival of the goods ”, and thatthe buyers were ‘ ‘ not entitled to call for or await tender (ofthe goods) before payment ”; and that “ any tender or deliveryof the goods or of the bill of lading or of such delivery orderor other document or documents as will enable the buyers toobtain possession of the goods shall constitute a valid tenderor delivery” ; and finally, that “notwithstanding that the price■of the goods may be expressed to be fixed on c.i.f. or equivalent
terms, the buyers'shall hot be entitled to demand or the sellers.bound to tender an insurance policy, bill of lading, deliveryorder, invoice or other document or documents whatsoever,but any such tender or delivery as described in Clause 1 shallbe a good and valid tender or delivery ”. It was furtherprovided that “ in the event of the buyers suffering loss recover-able from the insurer, the seller shall be at liberty either todeliver to the buyers a policy under which the goods wereinsured or to claim the amount of the loss from the insurer.on the buyers’ behalf ”. In this respect, the terms of the
contract differ from those of a c.i.f. contract proper.
Much argument was addressed to us as to whether the contract canmore correctly be described as one for the sale of goods simpliciter oras a “ c.i.f. contract ”. To my mind a discussion on those lines would
GRATIA'EN' J.—A.law'le,en v. Holland Colombo Trading Society, Ltd. 291
be of purely academic interest, and the solution of the problem quiteunprofitable. The rights of the parties to the contract, and the mannerin which they were required to perform their respective obligationsunder it, are in all respects regulated by the dear and express termscontained in P8. We need not, therefore, look beyond the languageof the document itself for the purpose of deciding whether or not, upona given set of facts, the sellers could be regarded as having dischargedtheir part of the contract so as to entitle them to complain that thebuyers had committed a breach of theirs. I would also reject in thisconnection the argument that, in seeking to interpret P8, we shouldpay less regard to the clauses appearing in “ legible but regrettablysmall print ” than to the type-written words which were added in theconcluding parts of the document. The document as a whole has beensigned by the defendants, and “ in the absence of fraud or mis-representation, they are bound by every part of it whether they haveread it or not ”. L'Estrange v. Qraucob x.
The view I take is that, provided that they had duly shipped thegoods in the foreign port within the stipulated period, the plaintiffscould at their option have performed their obligations as to deliveryunder the contract in one or other of the alternative methods availableto them. For instance :—
they could have cleared the goods themselves upon their arrival
in the port of Colombo, and then made a valid tender of themto the defendants ; in that event they would, without tenderingin addition any documents relating to the goods, have beenentitled to demand contemporaneous payment of the contractprice from the sellers together with landing charges, Customsdues, &c., paid by them but not expressed to be included inthe contract price ; or.
they could, after the goods had been shipped at the foreign port
in terms of the contract, have made a tender to the defendantseither of a valid and effectual bill of lading, duly indorsed, or,if they so preferred, of any other document entitling the defen-dants to obtain possession of the goods on their arrival in theport of Colombo from the partieuZar vessel in which they didarrive ; upon a valid tender of such bill of lading or otherdocument, the defendants would immediately become liableto pay the contract price and could not postpone paymentuntil the arrival of the goods. In other words, the contractfor the sale of the goods could be performed by the sellers,at their option, by the tender or delivery of any documentof a kind specified in Clause 1 of the agreement.
On 29th January, 1948, i.e., within the period stipulated in the contract,the plaintiffs did in fact cause the goods to be placed on board thesteamer ss. Laurenskerk at the port of Rotterdam for shipment to Colombounder a contract of affreightment with the owners of that vessel theterms and conditions of which are set out in the bill of lading P19. Allthe terms of this bill of lading do not appear in the type-written brief
1 (193d) 2 K. B. 394.
292
GrRATIAEN J.—Alawdeen v. Holland Colombo Trading Society, Ltd.
supplied to us under the Civil Appellate Rules, but I observe from thejudgment under appeal that they provide inter alia that “ the cargoor any part thereof may at the option of the carrier and as often as mayfrom any cause be deemed expedient be carried in a substituted shipor lightered and/or landed and/or stored for the purpose of oncarriagein the same or other ship or by any other means of conveyance Thisclause authorises the original carriers, if they thought it necessary orexpedient, to arrange for the goods to be transhipped at any stage ofthe voyage under a fresh contract of affreightment whereby the subse-quent carriers would undertake to convey the goods to their ultimatedestination for delivery to their owners.
The bill of lading, P19, was received by the plaintiffs in Colombo indue course, and on 26th February, 1948, they wrote the letter P16 tothe defendants in the following terms :—
“ Dear Sirs,
Indent No. HCTS/85300 pcs White Shirtings (Dutch)
Referring to our letter of the 13th instant, we have received thedocuments relating to the above shipment from our London Officewith instructions to present them to you for payment.
We are forwarding you herewith our Invoice No. 13096 forRs. 25,742-72 covering this shipment and shall be thankful tohave your cheque by return to enable us to hand you the necessarydocuments.
The carrying steamer, we gather from the local Agents, is expectedhere on or about the 28th instant.”
The defendants replied by PI 7 dated 28th February, 1948, refusingpayment on a ground of objection which, having regard to the termsof the contract, was quite insupportable. The goods were at thattime still on board ss. Laurenskerk, and the plaintiffs’ offer to deliverthe bill of lading P19, duly indorsed, to the defendants upon paymentof the price constituted at that time a valid tender within the meaningof the contract. It follows that the defendants by refusing paymenthad wrongfully repudiated the contract and incurred an immediateliability, at the option of the plaintiffs, to be sued for damages arisingfrom its breach.
It is clear, however, from the oral evidence and from the subsequentcorrespondence between the parties that the plaintiffs elected not totreat the contract as immediately discharged, but preferred instead,as they were certainly entitled to do, to regard it as still subsisting.The consequences of their exercising this option have been authorita-tively explained by the House of Lords in Heynam v. Darwins Ltd. 1where Lord Simon cited with approval at page 361 the following dictumof Scrutton L. J. in an earlier case :—
“ (The innocent party) may, notwithstanding the so-called repudi-ation (by the other party) insist on holding his co-contractor to thebargain and continue to tender due performance on his part. In1 (1942) A. C. 356.
GRATIAEN J.—Alawdeen v. Holland, Colombo Trading Society, Ltd.
293
that event, the co-contractor has the opportunity of withdrawingfrom his false position and, even if he does not, may escape ultimateliability because of some supervening event not due to his ownfault ..
As Lord Simon points out, “ repudiation by one party does not terminatea contract—it takes two to end it, by repudiation on the one side, andacceptance of the repudiation on the other In the present case,the defendants purported to base their original repudiation of the con-tract upon the pretext that the date stipulated for the shipment of thegoods in Rotterdam was in truth the final date fixed for their arrival inColombo. Nevertheless, the plaintiffs “ chose -to keep the contractalive for the benefit of the other party as well as their own; they there-fore remained subject to all their own obligations and liabilities underit, and enabled the other party not only to complete the contract, ifso advised, notwithstanding their previous repudiation of it, but alsoto take advantage of any supervening circumstance which would justifyhim in declining to complete it ”. Frost v. Knightx. In the result,the plaintiffs are precluded from now maintaining a cause of actionbased merely on the defendants’ original refusal to accept the tender of PI 9on 28th February, 1948. In the words of their chief witness, Mr. J. A.Perera, “ the matter was still ip. abeyance ”. A fresh and valid tenderof performance by the plaintiffs therefore became necessary before thedefendants could be made liable for the consequences of a repetitionof the earlier breach of contract on their part.
These observations apply with equal force to the subsequent unsuccess-ful attempts made by the plaintiffs, during the period when the goodswere stiU on hoard ss. LaurensTcerk, to persuade the defendants to acceptdelivery of the bill of lading P19. On each occasion, notwithstandingthe defendants’ wrongful breach of the contract, the plaintiffs electedto treat the contract as being stiff in operation.■
In due course, an event occurred which neither party had anticipated.According to the plaintiffs’ version, an explosion occurred on boardss. Laurenskerk shortly after that steamer left the port of Genoa. Inconsequence, the vessel returned to Genoa instead of completing hervoyage to Colombo, and the goods which formed the subject-matterof the contract of sale were then transhipped to another steamer,ss. Triport, for oncarriage to the port of Colombo. Such transhipmentwas admittedly authorised by the contract of affreightment containedin the original bill of lading PI 9, but no evidence was led at the trialas to the nature of the terms arranged between the owners of the re-spective vessels in respect of the subsequent carriage of the goods fromGenoa to Colombo. Mr. Choksy has not drawn, our attention to anyoral evidence or to any clause in any document from which we can obtainenlightenment on this point.
The oncarrying steamer ss. Triport arrived in Colombo according tothe evidence, about the end of March or the beginning of April, 1948.
(1872) L. B. 7 Exch. Ill atp. 112.
* =-=3-. N. B 24035 0/53)
294GRATIAEN J.—Alawdeen v, Holland Colombo Trading Society, Ltd.
On 3rd April, 1948, the fact of the transhipment was for the first timenotified to the defendants in a letter addressed to them by the plaintiffsin the following terms:—
“ Dear Sirs,
Indent No. HCTSj85
Further to our letter of the 9th ultimo, we write to advise that the6 bales of White Shirtings shipped by ss. “ Laurenskerk ” againstyour above indent have arrived, transhipped by the ss. “ Triport ”which steamer is in harbour.
Please let us have your remittance by return for the amount of ourbill so that we may hand over documents to you without furtherdelay. ”
No reply to this letter was received, but the witness J. A. Perera explainsthat he had a personal interview on the subject with a member of thedefendants’ firm. The substance of what took place on that occasionis contained in the plaintiffs’ letter P13 dated 12th April, 1948, addressedto the defendants:—
“ Dear Sirs,
Indent No. HOTS J 856 Bales White Shirtings ex ss. “ Triport ”
We refer to our interview in connection with the above and notethat you are expecting your Proprietor, who is stated to be arrivingfrom India very shortly, and that you would arrange for taking upthe documents on the arrival of this gentleman.
Meantime we would point out that the goods which are lying atyour risk at wharf are already on rent, and we shall be thankful toknow the definite date when your Proprietor in India is expected toarrive.”
The defendants failed, however, to comply either with the request forpayment or with the demand for acceptance of the bill of lading P19,which was admittedly the only document, apart from the invoice, whichthe plaintiffs purported to tender at this stage. Indeed, it is quite evidentthat the defendants had now become anxious to avoid payment on anypretext which they could think of or invent, the reason being that theValue of the goods in the local market had depreciated considerablysince the date of the formation of the contract. In the meantime,the goods were landed at the Customs warehouse and were, in due course,caused by the plaintiffs to be sold by public auction with notice to thedefendants and “ at their risk ”. Thereafter, the plaintiffs institutedthe present action claiming Rs. 13,697 • 06 from the defendants as damagesfor alleged breach of contract. Assuming that a 'cause of action didarise upon the facts proved at the trial, there is no dispute as to thequantum of damages claimed by the plantiffs. The only question for
GRATZAE2T J’.—Alawdeen v. Holland Colombo Trading Society, Ltd.
295
our consideration is whether the learned trial Judge has correctly decidedthat, upon the evidence led before him, the defendants are liable inlaw to pay this amount.
The defendants raised a number of special defences to the maintain-ability of the action. All of them were rejected by the learned Judgeand none were pressed before us in appeal. We are therefore now con-cerned with only one outstanding issue, raised in somewhat generalterms but nevertheless sufficient in form to cover the main objectionraised in Mr. H. V. Perera’s argument. His contention was that theplaintiffs have not proved due performance by them of their contractualobligations as to tender or delivery, on or after 3rd April, 1948, so as toentitle them to sue the defendants for damages for breach of contract.
The real question for determination is whether, after the plaintiffshad refused to accept the defendants’ repudiations of the contract onthe earlier occasions, they had ultimately, in the light of the events whichwere known by both parties to have supervened, made a valid tenderin terms of Clauses 1 and 4 of P8 in consequence of which tender thedefendants became obliged under the contract to pay the contractprice. If that question be answered in favour of the plaintiffs, thejudgment under appeal must clearly be affirmed.
I have already pointed out that the rejection of the tenders of the billof lading PI 9 before the goods were transhipped from ss. LaurensTcerkcannot now, in view of the plaintiffs’ decision not to accept those earlierrepudiations as finally terminating the contract, be relied on as givingrise to a cause of action against the defendants. Similarly, the plaintiffsdid not choose (as they might well have done in view of other provisionsof the contract) to make a valid tender of the goods themselves after theyhad been discharged from the vessel. In the result, the question for ourdecision is whether the plaintiffs’ offer on or about 3rd April, 1948, todeliver the original bill of lading PI 9 after the time of the arrival ofss. Triport in the port of Colombo, constituted a valid tender underthe contract of sale.
It is unfortunate, perhaps, that the implications of this fundamentalissue were somewhat clouded at the trial by the importance which theparties had attached at that stage of the proceedings to certain otherpoints of contest.
I propose at this stage to dispose of certain preliminary submissionswhich were made before us in connection with this outstanding issue.Por instance :—
it was argued on behalf of the defendants that Hie tender of thebill of lading P19 after ss. Triport arrived in Colombo wasin any event invalid and ineffectual because it was notphysically produced for the defendants’ inspection at thetime of the so-called tender. I reject this objection.
It is no doubt true that a valid tender, whether it be of goodsor of a document such as a bill of lading, generally requires
296
GRATIAEN J.—Alawdeen v. Holland Colombo Trading Society, Ltd.
that the other party should he afforded “ a reasonable oppor-tunity of examining the thing tendered so as to ascertainthat it really is what it purports to be”. Startup v. Macdonald x.But in the present case PI9 had on at least one previousoccasion been made available to the defendants for theirinspection, and I think that it may fairly be said that, if thetender did in other respects constitute the tender of a validdocument under the contract, its physical production on thefinal occasion had been dispensed with. In the particularcircumstances attending the defendants’ failure or refusalto accept the offer of P19 as a valid tender under the contract,the bare physical production of the document would in truthhave made not the slightest difference to their course of conduct.There is no reason to doubt that, if payment of the price hadbeen made contemporaneously by the defendants, the billof lading P19, duly indorsed, would have been made availableto them for what it was worth ;
(6) it was argued per contra on behalf of the plaintiffs that the rejectionof P19 on grounds which were manifestly without foundationprecludes the defendants from subsequently supporting itsrejection on any other valid ground, and that therefore thedefendants cannot now contend that the tender of P19, atthe time when it was made in April, 1948, was not a validtender under the contract. In my opinion this argument isalso without substance. “It is a long established rule oflaw that a contracting party who, after he has become entitledto refuse performance of his contractual obligations, givesa wrong reason for his refusal, does not thereby deprive himselfof a justification which in fact existed, whether he was awareof it or not. ” Taylor v. Oakes2. In other words, theprevious attitude of the defendants, however insupportable,does not prevent them from denying at this stage that, if theyhad accepted the document when it was tendered to them inApril, 1948, they would in truth have received an effectivedocument which they had bargained to accept in exchangefor the contract price. “ Why they really refused thedocument does not matter, nor does the case turn on theparticular objection put forward by them at the time. ”Hansonn v. Hamel and Horley 3.
I now proceed to examine the question whether the evidence in thecase is sufficient to establish the validity of the tender of the bill oflading P19 in April, 1948, to the defendant after ss. Triport had arrivedwith the goods in the port of Colombo. The plaintiffs were certainlyentitled under the contract to discharge their obligation as to deliveryby tendering, instead of the goods, a bill of lading valid and effectiveat the relevant date. The selection of this particular alternative modeof delivery had the effect of equating the contract in certain respectsto a c.i.f. contract.-
6 Man. and G. 593 = 134 E. R. 1029 at p. 1036.
(1922) 38 T. L. R. 349 at p. 351 and 38 T. L. R. 517 C. A.
(1922) 2 A. C. 36.
GRATIAE-ST J.— Alawdeen v. Holland Colombo Trading Society, Ltd.
297
Delivery of a valid bill of lading, duly endorsed, passes title in thegoods to the purchasers and operates as “ a symbolical delivery of thegoods themselves In order truly to perform a c.i.f. contract or o£any other contract under which the tender of a bill of lading operatesas the equivalent of a tender or delivery of the goods themselves,“ the seller has to deliver documents by virtue of which the buyersmay, if the goods are in existence, obtain delivery of them, and by virtueof which, if the shipowner has not fulfilled his obligation imposed bythe contract of affreightment, he, the buyer, may have such remediesas the contract of affreightment may give him ”. per Warrington L.J.in Arnhold Karbeck v. Blythe 1. As Bankes L. J. said in Hansson v. Hameland, Horley Ltd. 2 the validity of the tender of a bill of lading “ dependsupon whether it gives the buyer two rights (a) the right to receive thegoods and (6) a right against the shipowner who carries the goods shouldthe goods be damaged or not delivered 11.
The bill of lading P19 sets out the terms of the contract of affreight-ment under which the goods were placed on board ss. Laurenskerk forshipment from Rotterdam to Colombo. It seems to me, therefore,that its tender, after the goods had, to the plaintiffs knowledge, beentranshipped at Genoa into the steamer ss. Triport, would prima faciebe invalid unless both the tests laid down in the decisions referred towere proved by the party relying on the tender to have been satisfied.No doubt the transhipment was authorised by the terms of the contractof carriage with the owner of ss. Laurenskerk, but on the face of thedocument there is nothing to indicate that the bare production of PI 9,unaccompanied by some other document, would furnish evidence ofa binding obligation on the owner or the master of ss. Triport to releasethe goods to the assignee of a bill of lading issued by the owners of adifferent vessel. No evidence has been led by the plaintiffs from whichthe Court can justifiably infer that the defendants, by accepting thetender of P19 alone could have obtained as of right the delivery ofthe goods which they were under contract to purchase, and which,upon payment of the contract price, they were entitled to receiveif available on board the oncarrying steamer. Mr. Choksy has suggestedthat the custom of the port and the usage and practice of the localCustoms authorities introduce different considerations in the port ofColombo. I am content to state that we have not been referred in thiscase to any evidence of such a custom or usage.
“ The documents tendered must be valid and effective at the time ofthe tender ” 3, and the plaintiffs have failed to establish at the trialor in the course of the argument before us, either by reference to theterms of PI 9 or by any other evidence which might have been admissiblefor the purpose, that the bill of lading P19 after the goods were knownto have been transhipped to ss. Triport, was at the relevant date an“ effective shipping document ” sufficient to transfer to a purchaserof the goods all the rights and benefits to which he should have beenentitled on payment of the contract price. As I have pointed out,
1 (1916) 1 K. B. 495 at p. 514.2 (1922) 91 L. J. K. B. 65.
3 Kennedy on C. I. IP. Contracts (2nd ed.) at page 115.
298
Q-RATXAEN J.— Alawdeen v. Holland Colombo Trading Society, Ltd.
there is no evidence as to the terms of the fresh contract for the oncarriageof the goods in ss. Triport from Genoa to Colombo which were procuredat Genoa by the owners of ss. Laurenskerk in the exercise of the rightof transhipment reserved to them under the bill of lading P19. It 'has not been proved that the owners of ss. Triport had, for the purposesof the final voyage, become parties, by addition or substitution, to theoriginal contract of affreightment. There is certainly no endorsementon the document to this effect—here again I am guided by the copyfurnished in the type-written brief—and the plaintiffs did not tenderto the defendants any other document by which enforceable rightsagainst ss. Triport would have passed to them as the purchasers of thegoods on board that vessel. I would hold, therefore, that the plaintiffshave not discharged the burden of proving that they had duly performedtheir part of the contract, and in the result the cause of action pleadedagainst the defendant has not been established.
Mr. Choksy has pointed out that the plaintiffs, at any rate, seem tohave encountered no difficulty in obtaining delivery of the goods. Thismay well be so, but there is no proof before us that the goods wereobtained by the production of the original bill of lading P19 alone.Prima facie, P19 did not, after the transhipment took place at Genoa,operate as a shipping document entitling the owner to claim deliveryof the goods from the oncarrying vessel. I cannot subscribe to theproposition that, in a case such as this, the holder of a bill of lading,purchased for valuable consideration, should be satisfied with onlysuch remedies as he may possess against a carrier other than the carrierwho was known at the time to have brought the goods to their finaldestination. In my opinion the defendants would have been left with“ a considerable lacuna in the documentary cover to which the contractentitled them ” 1.
I have given careful consideration to the question whether justicerequires that we should send the case back for a retrial so as to enablethe plaintiffs to lead further evidence, if available, on the specific issueas to whether the tender of P19 after the date on which the goods wereknown by both parties to have been transhipped from the originalcarrying steamer, constituted a valid tender in April, 1948, under thecontract P8. It seems to me that the plaintiffs cannot justifiablyf.ln.im such an indulgence at this stage. They had originally basedtheir cause of action in the plaint on an alleged failure of the defendantsto accept a tender of the goods themselves, and it was not suggested eitherat the trial or in the course of the appeal that there had been a validtender in that respect. When that particular averment was denied,the plaintiffs were permitted by the learned trial Judge, in his discretion,to raise an issue in which they supplemented the cause of action pleadedin the plaint by relying in the alternative on an alleged breach by thedefendants of their obligation to pay cash “ against documents ”.That issue necessarily involved an acceptance by the plaintiffs of theburden of proving a valid tender of the document or documents which,in their submission, had been wrongfully rejected by the defendants.
1 (1922) 2 A.C 36.
Gunasekera v. Mathew
299
It would not be fair to give tbem yet another opportunity of supplyingthe deficiencies in the proof of the cause of action on which they finallyrelied.
For the reasons which I have given, I would set aside the judgmentunder appeal and dismiss the plaintiffs’ action with costs both here andin the Court below.
Gunasekaha J.—I agree.
Appeal allowed.