( 247 )
Present: Middleton J. July 10, mi
L A L L Y E T T v. NEGRIS & C O .
2.11—C. R. Nuwara Eliya, 5,052.
Jurisdiction—Order from Nuwara Eliya to Colombo for hams—Hamt,
sent V. P. P.—Contract entered into in Colombo—Action for
breach of contract—Nuwara Eliya Court has no juris action—Civil-
Procedure Code, s. 9.
The defendants advertised hams for sale, and the plaintiff by
letter posted at Nuwara Eliya placed an order with them for three
haras, which were despatched by value-payable post to Nuwara
Eliya, and duly received-and paid for. The plaintiff, alleging that
the hams were unfit for human consumption, sued defendants at
the Court of Requests of Nuwara Eliya to recover Rs. 40.53 as
damages for breach of contract.
Held, the Court of Requests of Nuwara Eliya had ao jurisdiction
to try the case. The contract was made in Colombo.
ri^HE facts of this case are fully set out by Middleton J. in his
X judgment as follows :—
" This was an action by the plaintiff, who resides in Nuwara Eliya,
against the defendants, who carry on business in Colombo, to
recover Rs. 40 53 as damages for breach of contract in delivering
three hams alleged to be unfit for human consumption, and for a
second cause of action for the same amount as money payable by
the defendant to the plaintiff for money received at Nuwara Eliya
for 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 despatched
by value-payable post to Nuwara Eliya, and duly received and paid
for, including carriage, by the plaintiff, and having been cooked
were 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 made in Colombo
that the cause of action arose-there, and that claiqs for carriage and
packing, &c., was so entirely subsidiary to the first cause of action
as 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, aud not in Colombo.
( 248 )
Julyio^Mi The offer on the part of the defendant was the advertisement, t h e
Laliyett v. acceptance of the plaintiff was, the letter ordering the hams. The
Negris <fc Co. i
e t t e r wt d at Nuwara Eliya. The acceptance was therefore
a s p o s e
1
at Nuwara Eliya. Counsel cited Carlile v. Carbolic Smoke Ball Co.,
Anson, 45, 26.
The delivery of the hams in Colombo to the carrier was not delivery
to the plaintiff under section 31 of the Sale of Goods Ordinance! as
ihe defendants sent the hams by value-payable parcel, and delivery
was on payment only at Nuwara Eliya. The cause of action,
therefore, arose at Nuwara Eliya.
Bartholomeusz, for the defendants, respondents.—The offer in
this case consisted in the plaintiff's letter to defendants, and the
acceptance consisted in the conduct of the defendants in sending
up the hams in terms of the order. The delivery of the hams was
in 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 evidence
on the record to show what the terms of the advertisement were,
and in the absence of these I should deem it merely an invitation
lo do business, like the issue of a bookseller's catalogue, not an
offer intended to create, and capable of creating, legal obligations.
1
Carlile v. Carbolic Smoke Ball Co. does not therefore apply.
It could hardly be said that after defendants had run out of the
hams they advertised, that the plaintiff by ordering some had laid
the defendants under a contractual obligation to supply the number
ordered, or that the defendants were bound to supply hams if they
deemed plaintiff incapable of paying for them. The same obser
vation would apply to books, of which the bookseller might have
only a limited number.
The contract is formed by offer and acceptance, and 1 must treat
the plaintiff's letter as the offer, and the despatch of the hams from
Colombo was conduct communicating the acceptance. (Anson
26). An offer is made when, and not until, it is communicated to
the offeree (idem, 23), and a contract is made when the acceptance is
communicated, and acceptance must be communicated by words or
conduct. The offer and acceptance, therefore, both took place in
Colombo, and the case of Cowan v. O'Connor applies. A contract
also is presumptively made at the place of acceptance. (Leake on
Contracts, p. 25,4th ed.) The contract, therefore, in this case sought
to be enforced, in the absence of any evidence to show the contrary,
was made in Colombo.
1
(1893) 1 Q. B. 266. «(1888) 20 Q. B. D. 640.
( 249 )
The defendants would only be liable if the hams were despatched J«iylo,19ll
from Colombo in a bad condition, not if they went wrong on the MI BUSTO>- D
J
journey, unless the packing or some other act of theirs conduced to -
their deterioration on the journey, as delivery to the carrier under cMiylu v.
Y r
section 31 of " The Sale of G o o d s Act, 1896," is delivery to the buyer. - «»'"» * ' ° -
The allegation here is that the h a m s were despatched in a bad
condition from Colombo, and therefore the alleged cause of action
arose in Colombo. It was not contended before me that the alleged
second cause of action was maintainable, and I agree with the Com
missioner that the charges for freight a n d packing really form part
of the contract price. T think therefore, that the appeal must be
dismissed with costs.
If the plaintiff has to go to Colombo to sue the defendants, and
take his witnesses there, and succeeds in establishing his case, he
would n o doubt be entitled to all costs resulting from, and properly
incurred in, doing so.
Appeal dismissed.
