JUDGMENT Gentle, J. - The Plaintiffs are the buyers and the Defendants suppliers of materials used in the manufacture of umbrellas. The Plaintiff carries on business of supplying the manufacturers with the required materials. The suit is brought for damages for non-delivery of two classes of goods under two contracts. The first contract is called Indent No. A 273 dated the 6th December, 1938, in which the Plaintiff requested the Defendants to supply or to instruct their friends abroad to buy for the Plaintiff and to ship ten cases each containing live gross of Elephant brand brass runners, shipment January/February, 1939, at a price of two yen per gross. The prevailing rate of exchange at that time was Rs. 78-8 per one hundred yen. The second contract is Indent No. A 298 dated the 9th January, 1939, and is expressed in the same terms in respect of ten cases Elephant brand umbrella caps at a price of seven annas per gross ex-jetty, shipment January, February/March. 2. The Plaintiff alleges that these documents with the acceptances constitute contracts of sale and purchase of goods between the parties. The orders or indents were accepted by the Plaintiff in the same terms. These acceptances have been called by learned Counsel for the Defendant, the placement order. The first acceptance is dated the 7th December, 1938, and the second 10th January, 1939, and addressed by the Defendants to the Plaintiff, and it is as follows:--"We beg to inform you without any engagement on our part that your undermentioned valued indent has been placed with thanks," and the necessary particulars are added at the foot of the document. 3. The Defendant contends that the contractual relationship between the parties was not seller and buyer but the Defendants were merely acting as conduit pipes between the Plaintiff and some undisclosed and undetermined firm or company in Japan, and that the Defendants' sole engagement was to place with some Japanese merchants the order received from the Plaintiff. 4. The contract is made upon a printed form supplied by the Defendants and contains on the back a number of terms and conditions to which I shall refer later. ***** [His Lordship after considering the evidence proceeded.] 5.
4. The contract is made upon a printed form supplied by the Defendants and contains on the back a number of terms and conditions to which I shall refer later. ***** [His Lordship after considering the evidence proceeded.] 5. In my view, and I hold that, subject to what I have to say presently, if there was a breach it took place in August, 1939, from which period the Plaintiffs were entitled to damages for non-delivery of four cases of caps. The contract price was 7 annas gross. 6. Evidence has been given of the market prices prevailing in August, 1939. [His Lordship after considering the evidence proceeded.] 7. If the Plaintiff is entitled to recover at all I fix it at the sum of 3 annas per gross, the difference between the contract and the market price, 4 cases of goods would contain 800 gross, which amounts to Rs. 150. 8. The question is whether the Defendant is entitled to recover at all. It is now necessary to revert back to the two contracts between the parties. As mentioned above they are upon the Defendants' printed form and in the form of a letter signed by the Plaintiff addressed to the Defendants. The relevant words are as follows:-- We hereby request you to supply or to instruct your friends abroad to buy for and to ship, if possible, on our account and risk," and then the contract goods are set out with the terms. 9. Counsel for the Plaintiff contended that this together with the document which he called the placement report written by the Defendants to the Plaintiff stating that they informed him without any engagement on their part that his undermentioned value indent had been placed with thanks, amounted to an acknowledgment and an intimation that the Plaintiff's order for goods had been passed on to and accepted by some persons in Japan: that the Defendant merely acted as a correspondent, although he might be an agent for the Plaintiff to do so, he passed on the Plaintiff's order to persons abroad. 10. Reliance was placed upon Mahomed Ally Ebrahim Pirkan v. Schiller Dosogne & Co. ILR 13 Bom, 470 (1889).
10. Reliance was placed upon Mahomed Ally Ebrahim Pirkan v. Schiller Dosogne & Co. ILR 13 Bom, 470 (1889). In that authority the form of the indent omitted the words " request you to supply." Consequently there was merely a request by the signatories to the addressee to instruct persons abroad to buy or to send goods. The Placement Report is ambiguously worded, and, I think, advisedly chosen. It does not say with whom the indent has been placed: whether with the Defendant himself or any one else. 11. During the time the Defendant gave evidence he referred always to his purchase or his sale. He gave no testimony that he was acting as agent for any Japanese principal or as agent for the Plaintiff, and whenever any reference was made by him to the contract goods or to other goods, it was always in terms of sale or purchase. So far as the failure by him to supply the four cases of caps is concerned, his explanation was that he had not the goods available to supply and had not received the goods from abroad to do so save only goods which he said were to fulfil contracts with others. 12. In my view the contract between the parties was one of sale and purchase: that the words which were acted upon by the Defendant were the request for him to supply, and he treated it throughout as a contract by which he was selling goods to the Plaintiff. 13. Learned Counsel for the Defendants relies upon two conditions or portions of conditions on the back of the contract which he says prevents the Plaintiff recovering from the Defendant any damages at all. The portion referred to is the latter part of Condition 5: I further agree that under all circumstances it will be optional to you to deliver or not the goods shipped later than the stipulated time. 14. He stated, and correctly so, that the goods which originally should have been shipped in January, February or March (I am referring, of course, only to the caps) were not shipped until June, and this shipment was with the full agreement of the Defendant, and being shipped later than the stipulated time it was optional upon the Defendant to deliver them.
They were not shipped at all and even accepting, as I do, the Defendant's evidence, in my view this provision does not apply. 15. Further reliance is placed upon a part of Condition No. 9 as follows: It is understood that this indent is null and void in case the goods are not shipped or you cannot supply for any cause whatsoever without assigning any reason. 16. Earlier in the Condition reference is made to the Defendants or their agents being exempted from responsibility for non-delivery of the goods by the makers or loss or inconvenience for reasons mentioned, and the delivery of the goods was subject to storm, fire and similar provisions. In my view, the words which I have quoted and particularly the words "any cause whatsoever" should not be read by the ejusdem generis rule. The words alone are clear, explicit and unambiguous. The Plaintiff agrees that the indent, namely, the contract, is null and void in case the Defendants could not supply for "any cause whatsoever" without assigning any reason. Those words, in my view, excuse the Defendants from all liability. 17. If I had found that the Defendants were responsible, the limitation of their liability would be Rs. 150. In that event I should have directed each party to bear his own costs. The Plaintiff having failed in the suit entirely, the result will be that it is dismissed. Costs as between attorney and client pursuant to sec. 22 of the Presidency Small Causes Court Act, 1882