JUDGMENT George Knox, J.
1. This second appeal arises out of a suit brought by one Mahadeo Parshad to recover damages from Kanhaia Lal and another owing to non-delivery of certain coal. The terms of the contract between the parties have been re-produced by the learned Subordinate Judge in his judgment. They may be thus translated: "Five railway carriages of charcoal will be despatched from Manikpur and will be wieghed over at the godown at the rate of 91/2 annas per maund. The coal on the trucks on arrival will be shown; if approved, the coal will be supplied at the godown; if not approved, the coal will be sold and I will supply charcoal of the kind obtainable in the bazar." Then follow the words "miti jeth sudi puranmashi"; and the word "tain" afterwards. The defendant was to supply charcoal up to the 25th of June 1907. The Court of first instance found that of the five trucks of charcoal, four were supplied before the 26th of June 1907. One of these trucks was accepted by the plaintiff and three were rejected but rejected on grounds not shown to be sufficient.
2. The Court of first instance found that after the 26th of June 1907, namely, in March 1908, one truck of coal was supplied by the defendants and accepted by the plaintiff. With regard to this truck of coal, he held that there had been a breach of contract on the part of the defendants and damage on account of this breach to the extent of Rs. 309-6 had been incurred by the plaintiff. He accordingly gave a decree for this sum of Rs. 309-6.
3. The defendants appealed and the learned Judge who heard the appeal found that the sale of one truck of coal in March 1908 at the contract rate was made in performance of the contract and that the plaintiff had waived the performance of the contract within the specified time and was not entitled to any damage.
4. The plaintiff has in consequence filed this appeal, which is now to be decided by me. The plea argued before me is that as the plaintiff had already suffered loss by purchasing coal up to the 19th of July 1907, the subsequent supply by the defendants on the 10th March 1908 cannot exonerate them from the liability which they bad already incurred. In supporting this plea, the learned Vakil for the appellant took his stand upon Section 39 of the Indian Contract Act and his contention was that the plaintiff not having put an end to the contract was entitled to damages. He also referred me to illustration (b) and says that the principles contained in this illustration are entirely in accord with the principles which should govern this case. It does not, however, appear to be sufficiently shown that the promisee in this case did put an end to the contract. I agree with the learned Judge that it was most unfortunate that the plaintiff did not go into the witness box and give his own account. Instead thereof, he put in a witness to take his place. The defendants did the same with the result that the learned Judge has found himself unable to place full reliance upon the evidence thus given. It seems to me that the case comes rather within the provisions of Section 55 and that what I have to see first is whether time was of the essence of the contract. This is best seen by an examination of the contract. It speaks for itself. The contract is one between business men and I think it is in the highest degree improbable that the words "meti jeth sudi puranmashi tain" would have been inserted, had not the contracting parties attached some importance to those words. The learned Judge finds that the wagon load which was taken in March 1908 was made in performance of the contract. I agree with the view taken by him and I hold that the acceptance by the plaintiff of this waggon of coal at the time other than that agreed upon prevents him from claiming compensation for any loss occasioned by such failure, unless he shows that at the time of such acceptance he gave notice of his intention to claim compensation. It was for him to show this; nor do I think that he was ignorant of the burden that lay upon him. Hence we have his witness Baldeo relating the story which has not been believed by the Court below, namely, that the plaintiff before acceptance said: "You must make good the loss I have suffered, the defendant promising that he would make good the sum of Rs. 800 as damage". This story has been disbelieved and the non-acceptance of it by the Judge is confirmed by the further fact to which he alludes, namely, that the suit was not brought by the plaintiff until the defendants had sued successfully the plaintiff for two waggon loads supplied by them. The intention to claim damages was an after-thought. The appeal fails and is dismissed with costs including fees on the higher scale.