1856. entitled to recover the difference between the bonuses CHOTAYLOLL or premiums paid him under the contracts and those v. MANICKCHUND AND KAISREE CHUND. averages. Mr. R. Palmer, Q. C., and Mr. Leith, for the No sufficient grounds are shown for disturbing the verdict or altering the judgment appealed from. The construction now put by the Appellant is unsound, for it cannot with any reason be argued that the description of the day of sale mentioned in the contract is to be regarded as mere surplusage. In Daintree v. Hutchinson (a), which was an action upon a wager upon a coursing match, Baron Alderson lays it down, that if a specific day be fixed for running a match, that would have limited the match to the day. Now, the Government sale, which was to have taken place on the 30th of November, never took place; the wagers were, therefore, off. Sir Fitz-Roy Kelly, replied. Their Lordships reserved judgment, directing the following appeal, which arose under similar circumstances, to be argued. THIS case, differed in no respect from the former appeal, the facts being similar, except as to the form (a) 10 Mec. & Wels. 85. of the contracts and the parties. In the view their 1856. Lordships took of the case, the distinction was imma- CHOTAYLOLL terial, and it is unnecessary to state the particulars of the case. Sir Filz-Roy Kelly, Q.C., Mr. Serjeant Channell, Mr. R. Palmer, Q.C., and Mr. Leith, for the Their Lordships' judgment in both appeals was delivered by The Right Hon. Sir JOHN PATTESON : These cases are in substance really one of construction only, as to the meaning of the contracts which the parties have entered into upon certain opium wagers. Undoubtedly, there is hardly anything which is more difficult than to arrive at a certain conclusion with regard to the meaning and intention of the parties to a written contract, if the words of the contract are in any way capable of more than one interpretation. It is very difficult to do so; but still their Lordships are, in this case, obliged, as well as they can, to ascertain from the contracts themselves and the surrounding circumstances, what was the meaning of the parties. Now, looking at the words of the contracts, and at the surrounding circumstances of the case, their Lordships are of opinion, that the contracting parties intended to make a wager as to the average price of opium at the first Government sale, without any pro V. MANICKCHUND AND KAISREE CHUND. v. MANICK KAISREE CHUND. 1856. vision that such sale should necessarily take place on CHOTAYLOLL "the 30th of November," and no other day. The 30th of November had been advertised in the Gazette of the CHUND AND 29th of August, 1846, as the intended day of the first sale; and it appears that it really happened that no alteration was made in the day so advertised. The parties, therefore, would naturally in their contracts refer to the advertisement in the Gazette by way of description. If they had intended to confine their contracts to what should happen on the 30th of November, and no other day, they certainly would have used some words of limitation so confining it, but no such words are to be found. The words are," the first public sale," the addition of "the 30th of November" being introduced, as we are of opinion, only as a description, as if it had been, which sale is advertised. now on the 30th of November. It appears by the evidence that no particular chests are marked or set apart for any particular sale, therefore it seems hardly likely that the parties intended by the words "the 30th of November," to describe the particular opium, then to be sold, and not to refer to the day of sale. It appears by the evidence of the witness Welch, that sufficient opium had not arrived for all the sales contemplated in that year, though there was then sufficient for the first sale. Such being the construction to be put upon the contracts when made, does the alteration made in the conditions of sale, after the attempted sale of the 30th of November proved abortive, do away with the contracts? Their Lordships think not. Their Lordships so thought in Doolubdass Pettamberdass v. Ramboll Thackoorseydass (5 Moore's Ind. App. Cases, 109), and there is nothing in the present case lead 1856. v. MANICK ing to the conclusion that the parties contracted with express reference to the conditions which are CHOTAYLOLL published in the Gazette of the 29th of August. In truth, the only material addition to the condi- CHUND AND tions of the sale on the 7th of December was the twelfth condition, guarding against the mischief which had rendered abortive the intended sale of the 30th of November. The case of Daintree v. Hutchinson (10 Mee & Wels. 85) is no authority on the point raised. There the day was decided to be immaterial, and the dictum of Mr. Baron Alderson in that case merely shows that where parties make a specific day essential in their contract they must abide by it. But the question here is, whether the parties did make a specific day essential, and their Lordships think that they did not. There is an expression in that case which is adopted in the judgment of the Court at Calcutta, which, perhaps, it is as well to mention. The Court there say, "In that case, the Newmarket Meeting was considered on the evidence to be in the nature of a moveable feast," not fixed definitively for a particular day, but dependent in some degree on circumstances. Now, certainly, we do not feel disposed to agree with that, because, in truth, a moveable feast is as well known and as fixed at the beginning of the year, as any feast which is not moveable. All moveable feasts depend upon Easter. It is known what day Easter will be in the years 1857 and 1858, and for years to come, if it is calculated. Therefore, all feasts which depend upon Easter, are as well known as Christmas or any other day which is not commonly called a moveable feast. That expression, therefore, seems to us to be incorrect. be incorrect. Under these KAISREE- 1856. v. MANICK KAISREE circumstances their Lordships will recommend Her CHOTAYLOLL Majesty that the verdict should be entered for the Plaintiff on the issue of non assumpserunt, and on the CHUND AND special counts for the damages which have been found in each case. And we think the verdict should be entered for the Defendants in each case on the counts for money had and received. CHUND. Mr. R. Palmer: Your Lordships did not say what your intention is about the costs. I believe, under the present Rules, if nothing is said the Appellant gets the costs of the appeal (a). The Right Hon. T. PEMBERTON LEIGH: All we can do is to give the costs according to the ordinary rule. By the Order in Council made upon the appeal, it was ordered, that the appeal be allowed with costs. (a) See, however, upon this point, Lindo v. Barrett, 9 Moore's P. C. Cases, 456, where their Lordships held that to entitle a successful Appellant to costs, application must be made at the hearing for their allowance. |