East India Company v. Oditchurn Paul
BS648551
PRIVY COUNCIL
Before:-Members of the Judicial Committee-Lord Langdale, Lore compbell the Right Hon. Dr. Lushington and Right Hon. T. Pemberton Leigh, Privy Councillors-Assessor - The Right Hon. Sir Edward Ryan.
D/d. 05/
06.12.1849
The East India Company - Appellants
Versus
Oditchurn Paul - Respondent
On Appeal from the Supreme Court of Judicature at Fort William in Bengal.
For the Appellants :- The Attorney-General (Sir John Jervis), Mr. Wigarm, Q.C. and Mr. Forsyth.
For the Respondent :- Mr. Greenwood, Q.C. and Mr. Leith.
St. 21 Jac. I, C. 16 (Limitation) - St. 9 Geo. IV, C. 14 (Limitation) - Act XIV of 1840 (Extending 9 Geo. IV, C. 14), applies to pending suits - Assumpsit - Breach of contract - Limitation runs from time of breach - Refusal to perform not starting point - Agreement not to take advantage of statute of limitations in consideration of enquiry of merits of dispute - Validity - Suit upon breach of such agreement, If lies - Documents, admissibility of.
[Para ]
The Statute of Limitations, 21 Jac. I., c. 16, extends to India.
The Statute, 9 Geo. IV., c. 14, (extended to India by the Indian Act, No. XIV. of 1840,) held to apply to an action pending in the Supreme Court at the time of its introduction into India.
In assumpsit, the breach of a contract is the cause of action, and the Statute of Limitations runs from the time of the breach, and not from the time of the refusal to perform the contract.
In 1822, A. purchased at a Government sale, at Calcutta, a quantity of salt, part of a larger portion then lying in the warehouse of the vendors (the Government) where the salt was to be delivered. By the conditions of sale, it was declared, that on payment of the purchase-money, the purchaser should be furnished with permits to enable him to take possession of the salt; there was also a stipulation that the salt purchased should be cleared from the place of delivery within twelve months from the day of sale, otherwise the purchaser was to pay warehouse rent for the quantity then afterwards to be delivered. The purchaser paid the purchase-money, and received permits for the delivery of the salt, which was delivered to him in various quantities, down to he year 1831; in which year, an inundation took place, which destroyed the salt in the warehouse, and there remained no salt to satisfy the contract. The purchaser petitioned the vendors for a return of the purchase-money, which was refused, on the ground, that the loss happened through his negligence in not sooner clearing the salt from the warehouse. An inquiry, however, took place at the instance of the Government, who referred the matter to the Salt Collector for a report. This inquiry was made by the Government without the purchaser being a party to it. The Collector did not make his report till the year 1838, and upon that report, the Government refused to return the purchase-money, claimed in respect of the deficient salt. The purchaser then brought an action of assumpsit for recovery of the purchase-money of such part of the salt as had not been delivered, alleging, as a breach, the non-delivery thereof. To this the Defendants pleaded the Statute of Limitations, that the cause of action had accrued within six years before the commencement of the suit. The Supreme Court at Calcutta found a verdict for the Plaintiff. Held, upon appeal, reversing such verdict, that when the purchaser applied for the residue of the salt, and was told that there was none to deliver, the contract was broken, and then cause of action accrued from the time of such breach; and that the subsequent inquiries by the Government did not suspend the operation of the Statute of Limitations, till the year 1838, the time of the final refusal, and that the remedy was barred by the Statute.
Semble.-There may be an agreement, that in consideration of an inquiry into the merits of a disputed claim, no advantage should be taken of the Statute of Limitations, in respect of the time employed in the inquiry, and an action might be brought for a breach of such agreement.
At the trial, certain documents contained in the Schedule to the answer of the Defendants to a Bill of Discovery filed in Equity were read as evidence for the Plaintiff, but the Court refused to allow the Defendants to read the answer to which the Schedule was annexed. Held, that as the Supreme Court at Calcutta, being jurymen as well as judges, had refused to allow the answer to be read, on the ground that such answer contained nothing material to the issue which could influence their verdict, a new trial on the ground of such refusal would not be granted.
This was an appeal against an order made by the Supreme Court at Calcutta, refusing a new trial in an action of assumpsit, brought by the Respondent to recover damages from the Appellants for part of the purchase-money of a quantity of salt. The action was grounded on the non-performance, by the Appellants, of the contract, to deliver the whole quantity of salt sold.
The facts of the case, as they appeared in evidence at the trial, were as follows:-
In the month of March, 1822, a public sale of salt belonging to the Appellants took place at Calcutta in pursuance of an advertisement. Amongst the salt advertised for sale were 230,000 maunds in the zillah of Hidyellee, and 160,000 maunds in the division or zillah of Tumlook, the former of which places lies on the sea-coast, to the south-west of Calcutta, By the conditions of sale, contained in the advertisement, the salt was to be transported from the places of delivery, which were fully detailed in an advertisement published at the Government office, at the risk of the purchasers. On a payment in ready money being made, an order was to be immediately issued by the Secretary to the Board, of Customs, Salt, and Opium, for the delivery of a quantity of salt equivalent to it, and the merchant was to be furnished with the order for delivery, and such rowannahs Permits. as he might require for the salt, on his paying the rowannah fees as usual. It was further declared and stipulated, that all lots be cleared out from their respective places of delivery within the period of twelve months from the day of sale, and that in failure of such clearance, the purchaser should be subjected to the payment of golah Warehouse. rent, at the rate of Rs. 5 per 1,000 maunds per mensem, and a deduction for wastage at the rate of half a maund per 100 maunds per mensem, to commence from the expiration of the allotted period of clearance. That such lots as were not cleared out within the above period of twelve months, should be retained by the Salt Agent, or Superintendent of the golahs, until the claim for golah-rent should have been adjusted; or such portion thereof should be sold by public sale, as the Board of Customs, Salt, and Opium, might deem requisite, for realising the amount due.
The sale took place on the 15th of March, when the Respondent became the purchaser of 34,000 maunds, of the years 1227 and 1228, B.E., then lying in golahs of the Appellants, in zillah Hidyellee, and 1,000 maunds in other golahs, in zillah Tumlook, at which golahs the salt was to be delivered.
The purchase-money for the salt having been paid, the Respondent was furnished with chaurs, or delivery-orders, from the Secretary of the Board of Customs, dated 2nd of July, 1822, for the salt, and of one of which the following is a copy-
"Hidgellee Division.
"Kalleenagur District, 995 maunds of 82 sicca weight. Oditcharn Paul having paid for the clearance of 995 maunds of salt of 1228, being in full of his purchase of lot No. 34, on the 15th of March, 1822, you will please to weigh off and deliver the same to him on receipt hereof, but not suffer to be removed from the ghaut till the rowannahs for the salt shall be produced to you, after which you are to let it pass without further delay."
At the same time the Respondent was furnished with rowannahs for the removal of the salt, current for one year from their date.
The Respondent omitted to remove the salt, and in the month of May, 1823, more than twelve months after the purchase of the salt, while it still remained in the golahs of the Appellants, an extensive inundation of the sea occurred in the district of Hidgellee, where the golahs containing the salt were situated, and the consequence was, that a quantity of the salt purchased by the Respondent was destroyed, and a portion of the residue was deteriorated in value. A portion of the salt that remained was removed, but down to 1831, a quantity of it still remained in the golahs.
From the time of the sale, with the exception of certain renewals of the rowannahs made on the application of the Respondent, no communication was received by the Board front the purchaser of the salt until 1827. On the 27th of February, in that year, a petition was presented by the Respondent to the Board, in which, after stating that he had sold the salt to sub-purchasers; who had afterwards failed in business, he prayed, that in consideration of the heavy loss which he mast suffer, the Board would order a remission of golah-rent and deduction for wastage, to which he had become liable. The Board authorised the remission solicited by him, of wastage and golah-rent mentioned in his petition.
On the 21st of May, 1827, the Respondent presented another petition to the Board, in which he stated, that the 34,000 maunds of salt purchased by him which were lying in the golahs in Hidgellee, remained still uncleared, and that the salt was unsaleable in consequence of the injury which it had sustained from the inundation, and also stated that the rowannahs for the delivery of the salt were then pledged with Mahajuns or bankers, and he prayed that the purchase-money, with interest, might be returned to him.
The Board referred this petition to their salt agents at Hidgellee who reported thereon, denying the allegation contained therein; whereupon the Respondent presented other petitions to the Board, which were similarly referred, and the Board ultimately determined they could make no order.
In November, 1830, renewed rowannahs, for the period of six months, were obtained by the Respondent, and in January 1831, application was made in the name of the Respondent, for part of the salt; and the salt agent, not being satisfied whether the golah-rent and wastage, as stipulated by the original conditions of sale, ought or ought not to be charged, he, on the 11th of January, 1831, wrote to the Board for directions on the subject. In the same month, viz. on the 25th of January, 1831, Juggomohun Seal and Anundmohun Seal, who represented themselves as the pledgees of the rowannahgranted to the Respondent, presented a petition, stating the doubt raised by the salt agent, and praying that the salt might be ordered to be delivered without deduction.
In consequence of these communications, the Board sent the following directions to the salt agent:-
"The golah-rent and wastage adverted to by you were remitted by the Board on the 21st of March, 1827, under a promise on the part of the holder that the salt should be cleared from the public golahs immediately. Nearly four years having elapsed since that period, and so long a delay after the assurances given would fully justify the Board's non-observance of a conditional promise altogether. They are not desirous, however, to press too hardly on the holders of the chaurs and rowannahs, as they are believed to have suffered considerably by these transactions with Ramrutton Mullick (the original purchaser); they will therefore forego any claim on the part of the Government to golah-rent of wastage, due prior to the 21st of March, 1827, but as, after that period, it was entirely the fault of the holders that the salt was not cleared out on the most favourable terms for themselves, they see no reason why any abatement should be made in the demands of the department; they therefore request that you will levy golah-rent and wastage on the salt from the 21st of March, 1827."
On the 29th of January, 1831, Juggomohun Seal presented a fresh petition, in which he submitted that the circumstance of the salt not having been exported immediately was not imputable to the negligence of the merchant; that by reason of part of the salt having been found foul, discussions had arisen; and that, in consequence of the salt agent having maintained that the salt in store was the very salt sold, it was found there was no alternative, and that, accordingly, in November, 1830, a renewal of the rowannahs had been obtained; and he urged that the golah-rent and wastage should be wholly remitted.
Whereupon it was determined by the Board not to exact the golah-rent and wastage. And on the 4th of May, 1831, Juygomohun Seal entered into an agreement, that, in fairly weighing out the salt from the Sircarry golah, if, in the dryage from the 21st of March, 1827, there be found a trifling diminution, he would make no claim on that score.
A part only of the salt was removed, and on the 30th of October 1831, a second inundation took place, whereby a great part of the salt purchased by the Respondent, and still lying in the golahs, was destroyed.
On the 10th of February, 1832, Juggomohun Seal presented a petition, whereby, without noticing the inundation, he alleged, that he had removed all the salt that could be had, and that there turned out to be a deficiency of more than 10,000 maunds, and he prayed that he might he compensated, with interest.
On the 9th of March, 1832, this petition was referred by the Board to their salt agent, Mr. Donnithorne, for investigation.
On the 13th of July, 1832, Juygomohun Seal presented another petition, representing that no report had yet been made by the salt agent. In consequence, on the 17th of July, 1832, another letter was addressed by the Board to Mr. Donnithorne, calling his attention to the subject.
On the 14th August, 1832, Mr. Donnithorne made a report to the Board, by which he showed the actual quantities which had been delivered to the petitioner, and deduced the result to be as follows: "The actual deficiency occasioned by two serious inundations, as also by wastage, during the great length of time the article was allowed to remain in the golahs, 7,639 maunds;" adding, had the Beoparee cleared the salt out of the golahs according to his engagement, instead of perpetually offering objections, no defalcation would have arisen; but fully aware, as I conceive from the information of his gomastahs, that a dreadful loss must have taken place by the last hurricane, he has been induced to offer this false representation, in order that the total loss of the article should he ultimately sustained by the Government."
In consequence of this report, the Board did not accede to the claim made for compensation, and for more than two years nothing further was heard on the subject. On the 17th of September, 1834, Juggomohun Seal presented another petition, in which, after referring to his petition of the 10th of February, 1832, and the report made thereon, he stated that prior to the storm of the 31st of October, 1831, he had delivered in his chaur and rowannahs, and that then a large quantity of the salt was not forthcoming, and prayed that the money, with interest and expenses, should be returned. On the 30th of November, 1835, he again presented a petition for the same purpose, stating that no order had yet been made by the Board on his petition of the 10th of February, 1832, and praying that the Board would make the order desired.
In the meantime, Mr. Donnithorne had retired from the office of salt agent at Hidgellee, and Mr. John Henry Barlow was appointed to succeed him, and the Board having determined to make renewed inquiry into the subject, on the 12th of December, 1835, forwarded to Mr. Barlow the former petition of the 10th of February, 1832, Mr. Donnithorne's report thereon, and the subsequent petitions.
Mr. Barlow instituted the inquiry, on the 16th of May, 1838, communicated the result to the Board in a letter.
Though Mr. Barlow's report was in some respects rather more favourable to the Respondent than that of Mr. Donnithorne, still it appeared to the Board that there was no ground to doubt but that the deficiency in the salt was owing entirely to the inactivity and negligence of the Respondent in leaving the salt unremoved for so many years; and, under these circumstances, the Board declined to accede to the prayer of the petitions, and refused to make an order in his favour.
On the 18th of July, 1839, the present action was commenced by the Respondent against the Appellants, on the plea side of the Supreme Court of Calcutta. The declaration contained three special counts: the first count stated, that on the 2nd of July, 1822, the Respondent bought of the Appellants large quantities of salt, of the manufacture of certain years, deliverable to him at certain golahs or storehouses of the Appellants, situate at Kalleenagar, in the zillah of Hidgellee, in the province of Bengal, at any time within twelve months from the 15th of March, 1822, and thereafter to be subject to golah-rent at a certain rate per annum, and subject to certain deductions for waste as therein specified: whereupon the Appellants promised to deliver the salt to the Respondent, from the golahs at Kalleenagur, on production of the chaurs and rowannahs, when the Appellants should be requested so to do. And that, although he, the Respondent, had frequently, since the 2nd of July, 1822, requested the Appellants to make delivery of the same salt to him, at Kalleenagur aforesaid, upon production of the said chaurs and rowannahs, and offered to pay golah-rent, and allow the deduction for wastage at the rates respectively agreed; and although the Appellants, in part performance of their promise, had, at different times, since the 2nd of July, 1822, delivered to the Respondent, divers, to wit 36,000 maunds of the salt, in part of the salt so bought; yet the Appellants had wholly neglected and refused to deliver the residue of the salt to the Respondent. The second and third counts were similar to the first, varying only as to the quantities of salt, and the places where it was deposited, and the time when it was deliverable. The declaration also contained the usual money-counts for money had and received on an account stated, and for interest, and the damages were laid at Rs. 200,000.
The Appellants pleaded the following pleas to the declaration:-
First; Non assumpsit. Secondly; that the alleged cause of action did not accrue within six years, as required by the English Statute of Limitations. Thirdly; as to the first count, that the 4,000 maunds of salt therein mentioned were suffered by the Respondent to remain in the golahs of the Appellants at Kalleenagur, in the zillah of Hidyellee, from the 15th of March, 1822, to the 27th of May, 1823, the time of the tempest and inundation hereinbefore mentioned; that during that period they had never refused to deliver the 4,000 maunds of salt and were never applied to for the delivery of the same, but were, till the time of such tempest and inundation, ready and willing to deliver the same; that the Respondent, during alt that time, neglected to remove the salt from the golahs, and while it was so remaining, by such neglect of the Respondent, on the 27th of May, 1823, a violent storm, attended with an inundation of the sea, swept over the place where the salt was warehoused, and wholly destroyed the same, whereby the Appellants were then and had ever since been unable to deliver the salt in pursuance of the contract in the first count mentioned. Fourth; as to the second count, a plea similar to the third. Fifth as to the third count, a plea similar to the third and fourth.
The Respondent, by his replication, joined issue upon the first plea, traversed the second, and replied generally, de injuria, to the other pleas.
In March, 1841, before the action at law was tried, the Respondent, Ram Rutton Mullick and Juggomohun Seal, filed a bill of discovery, on the equity side of the Supreme Court at Calcutta, against the Appellants and Mr. Henry Parker, then the first member of the Board of Customs, Salt, and Opium. The bill sought to establish some admission to take the case out of the Statute of Limitations, and required a full discovery of everything connected with the transactions, and a full discovery of all hooks and papers relating to the matters in question, which were in the possession or power of the Defendants.
The Appellants and Parker put in their joint and several answers to the bill, stating the circumstances respecting the two inundations of 1823 and 1831, and the loss occasioned to the salt thereby, and alleged that in substance, and in fact, the original agreement for sale of the salt had been performed on the part of the Appellants, and denied the allegation of any admission to take the case out of the Statute, and in the schedules set forth at length, petitions, and other documents before stated, and in another schedule set forth a list of all papers and documents in their possession relating to the matters in question.
On the 8th July, 1842, an order in the suit in Equity was made by consent, that the Defendants should deposit with the Equity Registrar of the Court, for the inspection of the Plaintiffs, all the documents scheduled to the answer, and this was accordingly done.
The action at law was tried on the 25th and 26th of July, 1842, on the Plea side of the Supreme Court, before Mr. Justice Grant and Mr. Justice Seton.
In the course of the trial, the counsel for the Respondent tendered as evidence, the originals of the following documents, viz., Juggomohun's petition on the 10th of February, 1832, and the 30th of November, 1835. The letter of the Board of the 12th of December, 1835, Mr. Barlow's letter of the 31st of December, 1835, and the answer thereto, and Mr. Barlow's report of the 16th of May, 1838, the production of which from the Equity side of the Court, he had obtained by means of an ex-parte order which had been made on the Plea side of the Court, bearing date the 20th of July, 1842, but of which no notice whatever had been given to the Appellants. The Respondent, at the same time, put in the order on the Equity side of the Court, of the 8th of July, 1842, and the order of the 20th of July, 1842, and called a witness to prove the official character of the documents above mentioned. The Counsel for the Appellants objected to the reception of these documents in evidence, unless the answer, of which they formed part, were likewise put in, both on the ground, that the exparte. order on the Plea side of the Court was irregular, and was a surprise on the Appellants, and also on the ground; that it appeared by the Orders produced, that the documents in question were parts of the answer to the Bill in Equity. The Counsel for the Respondent refused to put in the answer as evidence, and the Court, overruling the objection taken on behalf of the Appellants, admitted the documents and papers as evidence, without the answer.
At the conclusion of the case, the Court gave interlocutory judgment, in the nature of a verdict, in favour of the Respondent, for the sum of S. Rs. 39,740. 8a. 9p., which sum was calculated on the ground of no allowance being made for golah-rent or wastage.
On the 27th of October, 1842, a rule nisi, to show cause why the verdict should not be set aside, and a new trial granted, was obtained by the Appellants, on the grounds; First, that evidence was improperly received at the trial; and secondly, that there was no evidence to take the case out of the Statute of Limitations.
The rule was, after argument before the full Court, in Bank, composed of the Chief Justice, Sir Lawrence Peel, and Mr. Justice Grant and Mr. Justice Seton, by an order, bearing date the 17th of November 1842, discharged, with costs. The grounds on which the Court discharged the order were thus stated by the Chief Justice:-"It was not necessary to decide whether the evidence objected to had been properly received. Had it been necessary to decide the question, he should have concurred in the decision which the learned Judges who had tried the cause had made, for he thought that the regularity of the order, under which the documents had been produced, could not be entered into at the trial, the documents being, in fact, produced and proved in the usual mode, and being evidence per se, and, without the aid of the answer, were, in his opinion, rightly admitted in evidence; but it was unnecessary to decide this question. It was also unnecessary to decide whether the Indian Act (No. XIV. of 1840) included an action commenced before the passing of that Act; or whether that which was relied on as acknowledgement, to defeat the operation of the Statute of Limitations, amounted to any such acknowledgement, or the effect of such an acknowledgement, in an action of this description; or, lastly, whether it was binding on the East India Company, since the Court thought that the cause of action arose within six years from the commencement of the suit. It appeared by the Defendants own evidence, that the salt was detained for golah-rent, for which they had, by the contract, a right to detain it. This was waived up to the 4th of May,. 1831, by the Defendants, upon the petition of the party entitled to the delivery of the salt, and of the petition of the 10th of February, 1832, which the documents produced by the Defendants in evidence referred to, requested an inquiry into the circumstances connected with the undelivered salt. The Court thought that the East India Company having, upon the petition of the 10th of February, 1832, consented to that inquiry, no refusal to deliver the salt could he said to have taken place before the conclusion of that inquiry, which did not terminate until within six years of the time when the action was brought."
From this decision the Appellants appealed to Her Majesty in Council.
Two principal questions arise: First, as to the improper reception of evidence at the trial; and secondly, whether, as the cause of action accrued more than six years before the commencement of the action, the Plaintiff is not barred by the Statute of Limitations, there being no evidence before the Court below, of any recognition of the contract by the Defendants, to take the case out of the operation of the Statute of Limitations.
I. With respect to the question concerning the reception of evidence, we submit that there was a miscarriage. The Respondent was allowed to use in evidence, documents which it appeared at the trial had been produced by the Appellants only as part of their answer to the Respondent's Bill in Equity, which was for discovery only, and not for relief; such evidence ought not to have been received without the answer being also read, and the Court was hound to decide the question of the admissibility of the documents without eluding the point then pressed upon them. The answer contained statements which would have materially affected the decision of the case, both as respected the operation of the Statute of Limitations and the right of the Respondent to recover damages. It is clear law that the schedule to an answer is part of an answer, and that the documents produced and referred in an answer, cannot be read by either party without reading the Bill and answer. Hewitt v. Pigott 5 Car. & Pay. 75 Brown v. Thornton 1 Myl. & Cr. 246-8. Long v. Champion 2 Bar. & Ad. 284. -[Lord Campbell: This is not a Bill of Exceptions; it: is an application for a new trial; and you must show that you are prejudiced by the answer not being read. Sir Edward Ryan says, it is not the practice of the Supreme Court at Calcutta, to grant a new trial upon technical objection, when they clearly see that the admission or rejection of the evidence did not have any effect upon the verdict.]-It is a familiar rule here, that, whatever the quantity of the evidence rejected may be, nobody can say what effect may have been produced if it had been admitted.-[Lord Campbell: We are in the same situation as the Court below, being both Judge and jury, and if we think the evidence that was rejected ought to be admitted, we can give it its weight.]-The order for production of the documents was irregularly obtained, and a surprise upon the Appellants.
II. But the important question really is, when did the Statute of Limitations, 21 Jac. I., c. 16, begin to run.-[Lord Campbell: Does the Statute extend to India?]-Yes, it admitted that it was introduced into India previous to the Charter. The law is clear, that the Statute runs from the time of the breach, for that constitutes the cause of action. Battley v. Faulkner Bar. & Ald. 288, Howell v. Young 5 Bar. & Cr. 259 Short v. M'Carthy 3 Bar. & Ald. 626 and see 2 Wms. Saund. 63, n. 6.; Colvin v. Buckle 8 Mee. & Wel. 680. Pott v. Clegg 16 Mee. & Wel. 321. Kennet and Avon Canal Company v. The Great Western Railway Company 7 Q.B. Rep. 824. These cases clearly establish the rule, that when once the cause of action accrues, the limitation dates, not from the time when it came to the knowledge of the party, but from the time when the breach of the contract, or duty, took place. It was erroneous to suppose that the question turned upon a refusal to deliver. The question is confined to this point, when did the Statute begin to run ? The inundation put it out of our power to deliver the salt; the breach was complete, and then the Statute commenced running. Short v. Stone 8 Q.B. Rep. 358. Lovelock v. Franklyn 8 Q.B. Rep. 371., establishes this proposition, that, when a request is unnecessary, by reason of an act done by the party, which puts it out of his power to comply with such request, no request is necessary. We submit, therefore, upon this point, that there has been a miscarriage, as the learned Judge was, wrong in the view which he took, the action being clearly barred. The cause of action accrued, at least, in February, 1832, more than six years from the commencement of the action, and was barred by the Statute of Limitations. Nothing was shown in the evidence in the Court below, either to prove that the Appellants recognised the continuing liability to deliver the salt or to take the case out of the operation of the Statute. This involves another point, not decided by the Court below, namely, whether the Statute, 9 Geo. IV., c. 14, applied to this particular case. That Statute was extended to India by the Indian Act, No. XIV. of 1840, pending this action, but before plea. Towler v. Chatterton 6 Bing. 258. is an authority upon this question, and must be held to apply. Now this case can only be taken out of the general operation of the Statute of Limitations by something that would satisfy the provisions of the 9th Geo. IV., c. 14, which must be an acknowledgement in writing, clear and specific, signed by a party who has power to bind us. It is manifest that the ground on which the Court below held the operation of the Statute of Limitations to be excluded, namely, that no refusal to deliver the salt could be said to have taken place pending the inquiry by Mr. Barlow, is not sustainable. The inquiry was a private one by the Board, by one of their own servants, for their own satisfaction, to which the Respondent was no party, and with which he had no concern. The right of the Respondent accrued certainly in 1832, if not earlier. There is another defence to this action. It is a well-known rule at law with respect to injuries of this description, by inundation, or fire, that the warehouseman would not be liable for any loss, except he has been guilty of negligence. Story's Com. on the Law of Bailments, p. 452, The negligence was on the part of the Respondent in not removing the salt within a reasonable time, as required by Ben. Reg. X. of 1817, section 36.
First, we submit that the evidence objected to was under the special circumstances of the case, properly received by the Court below, in conformity with the practice of that Court; and secondly, that the Plaintiff's remedy, by action, was not destroyed by any statutory or other bar.- [Lord Campbell; You need not address their Lordships upon the question of the admissibility of evidence, as our minds are made up upon that point.]-The real question then is narrowed to the operation of the Statute of Limitations. The cause of action is founded on the non-performance of the contract, occasioned by the Appellants' neglect, and refusal to deliver. There are three grounds of defence pleaded; first, non assumpsit; secondly, the English Statute of Limitation, non accredit infra sex annos: and thirdly, that the undelivered portions of the salt were destroyed by an inundation, by reason of which the Appellants were unable to deliver to the Respondent.-[Lord Campbell: We must take it that the contract was broken.]-Simmons v. Swift 5 Bar. & Cr. 857. is a strong case in our favour, and very much resembles the present case; there, the owner of a stock of bark entered into a contract to sell it at a certain price, per ton, and the purchaser agreed to take and pay for it on a day specified; and a part was afterwards weighed and delivered, and taken away by him; the rest was carried away by a flood. The vendor brought an action of assumpsit, for bark sold and delivered; but the Court held that the action was not maintainable, as the property in the residue did not vest in the purchaser until it had been weighed,--[Mr. Pemberton Leigh: Logan v. Le Mesurier 6 Moore's P.C. Cases 116., decided here, was to the same effect. It was there held; that the risk remained with the sellers.]-The case put by the Appellants, that they were warehousemen, is wrong. The stipulation in the conditions of sale, that the purchaser was to pay warehouse rent, amounted to nothing more than making a payment in respect of the convenience afforded to the purchaser for letting it remain on the premises; it was a running contract for rent. The property in the salt never passed to the purchaser until it was separated and weighed off. The cases cited on the other side upon this branch of the case have no application to the present; here the salt has always remained the property of the sellers, and there has been an actual loss of that proportion of the salt which was contracted to be delivered. Our proposition is that the right of action only accrued in 1838, when the Appellants refused us compensation. It was a running enquiry up to the time of Mr. Barlow's report--[Lord Campbell: The contract was clearly broken in 1832, when there was no salt to deliver, and the Respondent knew of that inability. The Statute was running on while the inquiry was being made, as your right of action arose when the Appellants were not in a condition to deliver the salt.]-Here is a contract, in a particular form, and, so long as a party regards the contract and makes his demand at the time stipulated, that is all that is required. The inability of one party to fulfil the contract can make no difference. It is not necessary for a merchant to express, in technical terms, his desire to have the article he contracted for, with a view to make a conversion by a demand and refusal. The Respondent was constantly pressing for the completion of the contract. The demand was not made by a person acquainted with English law, and ought, therefore, to be looked at with indulgence. A harsh construction would be productive of injustice: the more so, as the Respondent is a Hindoo: and if the position of the parties to the action had been reversed, and he been Defendant instead of Plaintiff, he would have been entitled, under Statute, 21 Geo. III., c. 70, to have had the case tried by the Hindoo Law; the limitation of suits, under the Hindoo Law, would have been twelve years, when this six years' bar could not have been set up. If the Appellants make out, that the moment we knew of the inability of the vendors to fulfil the contract, we had a right of action, from which time the Statute of Limitations runs, then we say, that we had a right to recover, on the count, for money had and received, for there has been an entire failure of the delivery of the salt, and the money has been paid. Where a party enters, into a contract for the delivery of an article, which is improperly disposed of by the vendor, you may either bring an action of trover for the conversion, or acquiesce in his agency, and bring an action for money had and received.- [Lord Campbell: The difficulty is, that there was no acknowledgement of the debt within the six years, as required by Statute, 9 Geo. IV, c. 14.] -That Statute was imported into India, by the Indian Act, No. XIV of 1840, and was not in force in India at the time the action wag brought. Towler v. Chatterton 6 Bing. 258., shows the time when this Act of Parliament operates upon a suit, in which the Statute is pleaded Independently, however, of the Statute, enough appears to constitute an acknowledgement in bar of the Statute. It is a mixed case of written admissions and acts of the parties. The report of Mr. Barlow, the servant of the Appellants, is an admission. Colledye v. Horn 3 Bing. 119., East India Company v. Prince Ry. & Moo. 407. Pierce v. Brewster 12 Moore'sRep. 515. The Bengal Regulation X. of 1819, section 36, has no bearing upon the case, it is merely a fiscal Regulation to prevent smuggling.
Mr. Wigram, in reply.
Referred to Greenfell v. Girdlestone 2 Y. & C. 662. and Cripps v. Davis 12 Mee. & Wel. 169.
Cases Referred :-
Battley v. Faulkner 3 Bar. & Ald. 288.
Brown v. Howard 2 Brod. & Bing. 73.
Brown v. Thornton 1 Myl. & Cr. 246-8.
Colledye v. Horn 3 Bing. 119.
Colvin v. Buckle 8 Mee. & Wel. 680.
Cripps v. Davis 12 Mee. & Wel. 169.
East India Company v. Prince Ry. & Moo. 407.
Greenfell v. Girdlestone 2 Y. & C. 662.
Hewitt v. Pigott 5 Car. & Pay. 75.
Howell v. Young 5 Bar. & Cr. 259.
Kennet and Avon Canal Company v. The Great Western Railway Company 7 Q.B. Rep. 824.
Long v. Champion 2 Bar. & Ad. 284.
Lovelock v. Franklyn 8 Q.B. Rep. 371.
Pemberton Leigh: Logan v. Le Mesurier 6 Moore's P.C. Cases 116.
Pierce v. Brewster 12 Moore's Rep. 515.
Pott v. Clegg 16 Mee. & Wel. 321.
Short v. M'Carthy 3 Bar. & Ald. 626 and see 2 Wms. Saund. 63, n. 6.
Short v. Stone 8 Q.B. Rep. 358.
Simmons v. Swift 5 Bar. & Cr. 857.
Towler v. Chatterton 6 Bing. 258.
JUDGMENT
Judgment was reserved, and now delivered by
Lord Campbell (12th February, 1850) :- This is an appeal from a rule of the Supreme Court of Judicature at Calcutta, by which a rule nisi, for a new trial, was discharged with costs.
The action, which was commenced on the 18th of July, 1839, by the Respondent against the Appellants, was in assumpsit. The declaration contained special counts, on a contract for the sale and delivery of salt, alleging for breach, the non-delivery of a considerable part of the salt, with the usual money counts.
There were several pleas in bar; but the only one now material, is, "That the cause of action did not accrue within six years next before the commencement of the suit," the Statute law of England upon this subject being in force at Calcutta. The Plaintiff replied, "That the cause of action did accrue within six years before the commencement of the suit, "And thereupon issue was joined.
The trial took place before Mr. Justice Grant and Mr. Justice Seton, on the 25th and 26th days of July, 1842. It then appeared in evidence, that on the 15th of March, 1822, and at a public sale of salt, (a commodity of which the East India Company have the monopoly,) the Plaintiff became the purchaser of 34,000 maunds then lying in golahs (or warehouses,) of the Defendants, in Hidgellee. By the conditions of sale it was declared, that "on a payment in ready money being made, an order would be given for the delivery of an equivalent quantity of salt, and the purchaser would be furnished with perwannahs (or permits), which' were, necessary to enable him to be lawfully in possession of it." There was a further stipulation, "That all the lots of salt purchased, should be cleared out from the several places of delivery within twelve months from the day of sale, otherwise the purchaser was to be subject to golah-rent, and a deduction of half a maund on one hundred maunds, per mensem, was to be made from the quantity to be afterwards delivered." The Plaintiff immediately paid the whole of the purchase-money, and received rowannahs, which were to be in force for a twelvemonth. These romannahs were renewed till November, 1831, and no longer.
In May, 1823, before any of the salt had been cleared, there was an inundation at Hidgellee, which destroyed part of the salt lying in the golahs, and damaged other part of it. Between that time and October, 1831, there were deliveries to the Plaintiff, amounting to nearly 20,000 maunds; and no more was ever delivered. On the 31st day of October, 1831, there was another inundation in the district of Hidgellee, which swept away almost the whole of the residue of the salt in the golahs. The plaintiff soon after presented the delivery orders and rowannahs at the golahs and demanded the 10,000 maunds remaining to be delivered; but was told by the golah-keepers that no more salt remained to satisfy the contract. He then petitioned for a return of the purchase-money, which was refused, on the ground that the loss had happened through his negligence in not sooner clearing the salt from the golahs. However, the proper authorities consented that the matter should be inquired into by Mr. Donnithorne, the salt agent at Hidgellee; and in August, 1832, he made a report, in which he stated, that "if the purchaser had cleared the salt out of the golahs, according to his engagement, instead of perpetually offering objections, no defalcation would have arisen;" and he represented that the salt had been lost by wastage before the late inundation. The Plaintiff presented another Petition, denying these facts, and praying that the purchase-money for the 10,000 maunds deficient should be returned to him; and on the 13th of December, 1835, a fresh inquiry was ordered by the proper authorities, representing the Company, to Mr. Barlow another gentleman who had succeeded Mr. Donnithorne. Mr. Barlow, did not make his report till the 16th of May, 1838; and upon the report which he then made, the Company finally refused to return the purchase-money, claimed in respect of deficient salt.
There was a verdict for the Plaintiff, with damages equal to the price of the whole of the deficient salt, and interest, from November, 1831.
At the trial, various documents were read in evidence, which had beep produced by virtue of a Bill of Discovery filed by the Plaintiff against the Company, although the Company's answer, by their officer, which detailed the transactions, was not read.
The rule for a new trial was obtained on two grounds: First, that these documents were improperly admitted in evidence, without reading the answer to the Bill of Discovery; and secondly, that upon the evidence, the Statute of Limitations was a bar.
Cause being shown before Chief Justice Peel, and his brethren, he said, it was unnecessary to decide whether the answer ought to have been read or not, as they were all of opinion that it did not contain anything material to influence the verdict, and that "the East India Company having, upon the Petition of the 10th of February, 1832, consented to that inquiry, no refusal to deliver the salt could be said to have taken place before the conclusion of that inquiry, which did not terminate until within six years of the time when the action was brought. They, therefore, discharged the rule with costs.
We entirely agree with the Court below, in thinking, that the first ground on which the verdict was impeached cannot be supported. From the notes of the trial, there is a doubt whether the Counsel for the Company did more than object to the regularity of the order under which the documents were produced, and this certainly could not be inquired into at the trial. Supposing, however, that the answer ought to have been read, still, before a new trial is granted, for withholding it, the Defendants were bound to show that it might have materially influenced the verdict. The common Law Courts in England have considered themselves compelled to grant a new trial, if any evidence had been improperly admitted or rejected at Nisi prius, however little it may weigh, because the objecting party might have tendered a Bill of Exceptions, upon which the Court of Error would be bound to grant a venire de novo; and, to save the delay and expense of such a proceeding, it has been thought more convenient that a new trial should be granted by the Court in which the action was originally brought. But it has been certified to us, by Sir Edward Ryan, the very learned late Chief Justice of Calcutta, that a different rule prevails in the Supreme Court there; and considering the constitution of that Court, and the line of distinguished men who have presided in it, strange would it have been if the rule had not been different. The same individuals being Judges and jurymen, the proceeding would be preposterous if, in their capacity of Judges, they were to grant a new trial before themselves, as jurymen, by reason of the admission or rejection of evidence, which they feel could not alter the verdict. They very properly follow the practice of equity Judges in England; where an issue has been granted and an application is made for a new trial, on the ground of the improper rejection or admission of evidence, there no Bill of Exceptions lies; and although the objection is in strictness well founded, a new trial is granted or refused according to the importance of the evidence which has been admitted or rejected. The learned Judges, in the present case, thought that the answer could not have influenced their verdict. We have carefully read the answer, and have come to the same conclusion. We, therefore, think, that on the first ground, the verdict ought not to be disturbed.
It would have been very satisfactory to us, if, consistently with the rules of law, we could have found evidence to show that any cause of action, stated in the declaration, arose to the Plaintiff, within six years before the commencement of his suit. There seems no doubt that the Defendants have broken their faith with him, and that if he had commenced his action against them, in February, 1832, instead of agreeing to the inquiry which was conducted so tediously, he would have been entitled to damages equivalent to the salt which remained undelivered. But this inquiry, through the fault of the Company's servants, was not terminated till the 16th of May, 1838. Almost as soon as the final refusal of the Company to return any part of the purchase-money was communicated to the Plaintiff, he commenced the present action. It will, therefore, be an extreme hardship upon him, if, by reason of this delay, which they occasioned, they may successfully defend themselves, by pleading the Statute of Limitations. But it is the duty of all Courts of Justice to take care for the general good of the community, that hard cases do not make bad law.
Upon the special counts of the declaration, the cause of action disclosed is the refusal to deliver the residue of the salt purchased and paid for. When did this accrue ? from that point of time the Statute of Limitations began to run; and when it once began to run, nothing could stop it; so that in six years thereafter the right of suit was barred. The rule is firmly established, that in assumpsit, the breach of contract is the cause of action, and that the Statute runs from the time of the breach, even where there is fraud on the part of the Defendant. Battley v. Faulkner (3 Bar. & Ald. 288). Short v. M'Carthy (ib. 626). Brown v. Howard (2 Brod. & Bing. 73). When the Plaintiff tried to obtain the 10,000 maunds of salt, and he was told by the agents of the Company that there was no salt in the golahs to deliver to him, the contract was undoubtedly broken, and the cause of action has accrued. It has been contended, that the subsequent negotiations and inquiries suspended the operation of the Statute, till 1838, when there was a final refusal to make any compensation, or, that a new right of action then accrued. But no authority has been, or can be cited to support either of these propositions, and we are reluctantly obliged to overrule them both. There might be an agreement that in consideration of an inquiry into the merits of a disputed claim, advantage should not be taken of the Statute of Limitations in respect of the time employed in the inquiry, and an action might be brought for breach of such an agreement; but if to an action for the original cause of action the Statute of Limitations is pleaded, upon which issue is joined-proof being given that the action did clearly accrue more than six years before the commencement of the suit-the Defendant, notwithstanding any agreement to inquire, is entitled to the verdict.
Chief Justice Peel rests the judgment of the Court upon the supposition, that there had been no refusal to deliver the salt until the conclusion of the inquiry. Till then there certainly had been no absolute refusal to make compensation, by returning a part of the purchase-money, but in 1831 and 1832 there had been a refusal to deliver the salt. The controversy then was, whether the salt was in the golahs at the time of the second inundation; but whether it was, or was not, the contract was equally broken, and neither party contemplated a performance of the contract by any further delivery of salt. The inquiry was only to decide whether a pecuniary compensation was to be made, and what should be the amount of it.
Although the judgment of the Court rested entirely upon the special counts of the declaration, it has been very ingeniously argued at our bar, that the Plaintiff may recover the price of the 10,000 deficient mounds, on the count for money had and received, as the contract may be considered as subsisting, till Mr. Barlow's report, and that it was subsequently rescinded. But there appears to us to be insuperable difficulties to be encountered in attempting so to shape the Plaintiff's case. There is no stipulation in the original contract for allowing it to be rescinded by either party, either entirely or partially, and the Defendants have never agreed to its being in any way rescinded. Then there clearly has not been an entire failure of consideration, for the Plaintiff has received and disposed of nearly 24,000 maunds of salt delivered to him by the Defendants. The contract could not afterwards be rescinded by the Plaintiff, and his only remedy was an action for the breach of it, in not delivering the residue of the salt to which he was entitled. Even if he could proceed as upon a rescinding of the contract, the Statute of Limitations would equally be a bar to the counts for money had and received, for he might have brought his action on this count as well in 1832, as in 1839. We have been told in answer to this objection, that the transactions in the interval amount to an acknowledgement which will take the case out of the Statute, 21 Jac. I., c. 16, and that the Statute, 9 Geo. IV., c. 14, does not apply, because this action had been commenced before that Statute was made law in India. But there are repeated decisions in Westminster Hall, that it applied to actions pending when it passed; and in India, it must have a like operation. Besides, independently of 9 Geo. IV., c. 14, no sufficient evidence was offered to take the case out of the Statute, 21 Jac. I., c. 16, for in none of the correspondence or negotiations did the Company ever acknowledge that they were indebted to the Plaintiff, or that they were liable to him in any shape.
We are, therefore, of opinion, that the rule for setting aside the verdict, and granting a new trial, should be made absolute.
.