Volkart Brothers vs C. Ruthnavelu Chetti

The first question referred for our opinion is what is the proper construction of the agreement, Exhibit A. By that document the defendant agreed

to purchase from the plaintiffs 120 cases of condensed milk which were to be shipped in London and delivered in Madras. The part of the

agreement as to which there is a conflict is in these terms, ""shipment in six lots of twenty cases each at monthly intervals.

On behalf of the plaintiffs it was contended that the expression shipment at monthly intervals"" means shipment in consecutive months, or, as the

learned Chief Judge puts it, shipment month by month, whereas the defendant contended that the expression meant that the shipment should be

made at intervals of a month from each other.

It is not suggested on either side that the expression is used among merchants in any technical sense. Now the term ""monthly"" can only mean

once a month or every month and the term ""intervals"" the time between two shipments. In the ordinary sense of the words therefore the expression

shipment at monthly intervals"" means that there was to be an interval of one month between each shipment. As the learned Chief Judge observes,

the importer wishing to arrange that his supplies should arrive at fixed periods would naturally stipulate that the date of shipment from the export

country should be certain. He also refers to Exhibit E, the letter written by the plaintiffs'' firm on the 26th August, as showing that the plaintiffs

understood that the term ""monthly intervals"" meant at intervals of a month as nearly as possible. It is urged by plaintiffs'' counsel that it would be

unreasonable to hold that the plaintiffs contracted to ship the twenty cases at exact intervals of one month as they would have to wait till a steamer

was available or charter a special steamer for the conveyance of the twenty cases. There can be no doubt that in determining what is the

construction to be put upon the term ""shipment at monthly intervals,"" regard should be had to the possibility of finding a steamer available for

shipment on or about the monthly interval as well as to the necessity for defendant getting his supplies at regular intervals.

The reasonable construction therefore is that the interval contemplated by the parties to the document was not precisely thirty days or one

month, but one month more or less, regard being had to the time which it may be reasonable to allow to the plaintiffs for finding a steamer available

for the required shipment.

This is in accordance with the rule mentioned by Cresswell, J. in Wilson v. Bevan, 7 C. B. R 673 which he stated in these words :--"" When the

intention, of the parties to a contract is sufficiently apparent, effect must be given to it in that sense, though some violence be thereby done to the

words. Where the intention is doubtful the safest course is to take the words in their ordinary sense."" In applying the rule it must also be observed

that the hardship to either party is not an element to be considered unless it amounts to a degree of inconvenience and absurdity so great as to

afford judicial proof that such could not be the meaning of the parties, Prebble v. Bonghurst, I Swanston, 329.