ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
Έρευνα - Κατάλογος Αποφάσεων - Εμφάνιση Αναφορών (Noteup on) - Αρχείο σε μορφή PDF - Αφαίρεση Υπογραμμίσεων


(1974) 1 CLR 62

1974 February 26

[HADJIANASTASSIOU, A. LOLZOU, MALACHTOS, JJ.]

SPYROS ANASTASSIOU,

Appellant-Defendant,

v.

APOSTOLIS STYLIANOU,

Respondent-Plaintiff.

(Civil Appeal No 5112).

Contract-Sale of goods-Cancellation clause-Giving right to buyer to cancel the contract in case of strikes-Burden of proving that such clause is operative rests on the buyer being the person for whose benefit such clause was stipulated-A icy doubt against that person-In any event on the true construction of the clause the buyer (appellant) was not entilted to. the protection thereof-And to say that the word 'strike' in the said clause includes 'strike' of dockers in England would be tantamount to adding words in the contract-Which is not permissible save in cases where it is absolutely necessary to do so, in order to give effect to the plain and manifest intention of the parties.

Contract-Construction—Cancellation clause-Construction-Principles applicable-Burden of proving that such clause is operative rests on the person for whose benefit the clause was inserted-Adding words in the contract-When permissible-See further supra.

Cancellation clause in a contract of sale of goods-Construction-Burden, of proof-See supra, passim.

Contract-Repudiation by the buyer-Seller entitled to accept repudiation and sue in damages.

Contract-Breach-Damages-Sale of goods-Failure 10 take delivery of the goods-Principles applicable-Duty on the party aggrieved to mitigate damages-G rapes intended for export sold locally in order to mitigate loss-No need to prove that grape.s were certified as being fit for export-Section 4 of the Agricultural Produce (Export) Law, Cap. 28.

Damages for breach of contract-Measure-Duty to mitigate-Scope and extent-See further supra.

By contract in writing the respondent agreed to sell and deliver to the appellant 100 tons of sultana grape suitable for export at the price of 65 mils per oke up to July 10, 1970, and 60 mils for the period 11 to 25 July, 1970 By a clause of the contract-referred to in this case as the "cancellation clause"-the buyer (appellant) was given the right to cancel wholly or partly the contract in case of strikes The clause is in these terms:

"Any kind of strike or strikes which are connected with the carrying out of the work as a whole, gives the right to the purchaser to cancel the present contract or part of it without payment or V any compensation, and then the seller is bound to return any amout paid as part payment"

On July 20, 1970, the appellant (buyer) invoking strikes of the dockers in England declared to the respondent (seller) that he (the buyer) would not accept any further deliveries of grapes The seller protested and told the defendant that he was going to sell the grapes elsewhere, but at the same time he was holding him responsible for any damage that he would suffer It appears, thus, that the seller (respondent) accepted the repudiation of the contract and treated it at an end as from the 20th July, because of the failure of the appellant (buyer) to accept further deliveries of grapes; and as a matter of fact he took all reasonable steps to mitigate the loss caused by the breach of contract, by selling grapes to various firms at the best price he could find. Finally the loss of the seller (respondent) caused by the said breach of contract reached the figure of £1,278, which amount he (the seller) claimed by an action instituted in the District Court of Limassol The trial Court awarded to the plaintiff (seller) £1,258 as damages for breach of contract it is against this judgment that the defendant (buyer) took the present appeal

It was argued on behalf of the appellant (defendant) the trial Court erred in holding that the said cancellation clause did not cover strikes in England It was further argued that the trial judges erred in awarding any damages to the respondent (plaintiff-seller) because they took into consideration sales of grapes there being no evidence that the grapes in question fulfilled the conditions laid down in the contract, that is to say, of being suitable for export as required by the provisions of section 4 of the Agricultural Produce (Export) Law, Cap 28 and the Regulations there-under, in the absence of any examination by the inspector and of his issuing a certificate that the said grapes were fit for export.

The Court dismissing the appeal and affirming the judgment of the trial Court held that on the true construction of the "cancellation clause"-and bearing in mind that such clauses should be interpreted against those who invoke them-the 'strikes' referred to therein are strikes occurring in Cyprus; and, regarding, the damages, the respondent (plaintiff-seller) did what it was reasonable to do in order to mitigate the damages in the circumstances, particular regard being had to the fact that grapes are perishable goods.

Dismissing with costs the appeal, the Supreme Court:-

Held, (1) The clause in the contract relieving the appellant from liability having been inserted for his own benefit, has to be construed against him and the burden of proving that such cancellation clause is operative rests on him.

(2) With this in mind we are of the opinion that the "cancellation clause" in question does not exempt the appellant from liability to pay damages to the respondent, once the strike relied upon was made outside Cyprus and by a different class of workmen, which had nothing to do with the carrying out of the work of the appellant as a whole, but only with the unloading of a ship in England To hold otherwise would mean that the Court is entitled to add words in the contract, which is .not permissible unless it is absolutely necessary to add those words in order to give effect to the plain and manifest intention of the parties (Cf. Adamson Newcastle Steamship Freight insurance Association [1878-Q.B.D 462, at p. 465).

(3) The next contention of counsel for the appellant was that damages ought not to have been awarded in the absence of any evidence as well as of any examination or certificate by the Inspector, to the effect that the grapes sold to third persons after July 20, 1970, were fit for export within the provisions of section 4 of the Agricultural Produce (Export) Law, Cap 28 We think that once the appellant was rightly found by the trial Court to have been in breach of the contract sued on, the appellant had inevitably to sell the grapes in the open market; and the compensation which must be paid to him should be measured by ascertaining the difference between the contract price and the market price on the day when payment was made.

(4)(a) The question whether a plaintiff has discarded a reasonable opportunity to mitigate the damage is one of fact depending upon the particular circumstances; and in our view, the burden of proving his failure rests upon the defendant.

(b) With this in mind, and taking into consideration the facts and circumstances of this case, as well as that the respondent (seller) was dealing with perishable goods, we think that he was doing what was reasonable by selling locally first class grapes in order to mitigate his loss; and there is no doubt once the appellant refused to accept deliveries, that he (the respondent) was doing what was expected of a prudent person to dispose of his grapes.

Appeal dismissed with costs.

Cases referred to:

Adamson v. Newcastle Steamship Freight Insurance Association [1878-79] Q.B.D 462, at p. 465;

Reardon Smith Line Ltd v The Ministry of Agricul-tural, Fisheries and Food [1959] 3 All E.R.434, at pp.447-448;

British Westinghouse electric and Manufacturing Co Ltd. v.Underground Railway Co. of London Ltd [1912) AC.673, at p.688, per Viscount Haldane:

Dunkirk Colliery Co v Lever [1978] 9 Ch D 20, at p 25;

Payzu Ltd.v.Saunders [1919] 2 KB 581;

Shearman v Folland [1950] 1 All ER 976;

Houndsditch Warehouse Co Ltd v Waltex Ltd [1944] K.B.579.

Appeal

Appeal by defendant against the judgment of the District Court of Limassol (Loris, Ag. P.D.C. and Hadjitsangaris,D.J.) dated the 29th June, 1972, Action No. 2659/70) whereby the defendant was ordered to pay to the plaintiff the sum of £ 1,258.418 mils compensation in respect of breach of contract for the sale of sultana grapes.

M. Houry, for the appellant.

P. Cacoyiannis, for the respondent

Cur. Adv. vult.

The judgment of the Court was delivered by:-

HADJIANASTASSIOU, J.: On April 13, May 6 and 25 respectively, 1970, the seller Mr.Apostolis Stylianou (plaintiff) agreed with the purchaser, Mr. Spyros Anastassiou (defendant) by virtue of three concluded contracts in writing, to sell to the defendant 100 tons of sultana grapes, in each case, suitable for export and with a right that both the purchaser and the. seller would buy or sell 10 per cent over or under, the figure of 100 tons The price was fixed at 65 mils per oke up to the 10th July, and for the period from 11th July to 25th of the same month, 60 mils per oke.

Regarding the place of delivery of the grapes, it was agreed that the price of transporting the grapes to the airport or to the customs house of Limassol would be paid by the purchaser to the seller in accordance with the agreement which finally, would be reached with the owners of lorries. It was further stipulated that the time of delivery would begin as from the first day which the directorate of the Ministry of Commerce and lndustry would fix, and would continue up to 25th July, 1970.

On the signing of those three contracts, an amount of £500 was paid with regard to the first; £200 for the second, and an amount of £311 for the third, with this qualification, that this latter amount was a proof of the settlement reached of the balance of an account between the parties regarding onions We should have also added that in all contracts all the necessary material would be provided by the purchaser, and that for the expenses of labour for the packing in cartons of the grapes, it was agreed that the defendant would pay 70.mils per each carton and for transport to the customs of Limassol and/or to the airport 12 mils. Furthermore, in all three contracts it is provided that all the terms are considered to be material and that the buyer had the right to assign the whole or part of the contracts to a person or persons.

CANCELLATION OF CONTRACT

The buyer was given the right to cancel the said con-tracts and the material wording of what we would call the cancelling clause, is in these terms:-

"Any kind of strike or strikes which are connected with the carrying out of the work as a whole, gives the right to the purchaser to cancel the present contract or part of it without payment or any compensation, and then the seller is bound to return any amount paid as part payment."

It appears that the plaintiff, in accordance with his promises under the contracts in question, started delivering grapes to the defendant on the 28th June, 1970, and continued doing so at intervals, depending on the instructions of the defendant and at the proper ripening of the grapes until 15th July On that date the defendant addressed a telegram to the plaintiff in these terms:-

"Urgent In view of the delay of the arrival of the ship do not accept deliveries of grapes please inform Dimitri."

Was the sending of that telegram justified? Apparently not, because on the same date deliveries of grapes were made by the plaintiff to the customs house, a usual, and loading was going on on a ship chartered by the defendant On the following morning, that is to say, the 16th, the plaintiff visited the, defendant at his office and coinplained to him about that telegram In reply the, defendant put forward the excuse that he had no available ship to load, and when the plaintiff informed him that he Was aware that the ship lying in port was chartered. by him, he did not deny it, but tried to explain that be he had ceded the refrigerated space of the ship to a certain Mr. Kokos lordanous he could not load himself Although there is no evidence to show what the business relationship between the defendant and that person is, the defendant was alleging all along that what he had done was to help that person to meet his obligations. To a further protest by plaintiff, defendant's reply was "Leave them, (meaning those producers with whom the plaintiff had contracts to buy grapes) because there is a strike in England." In view of the attitude of the defendant the plaintiff left, but he 1isited the defendant again the next morning and complained to him that, although he was purchasing grapes from other persons and packing was going on in Asomatos village, he was not buying from him Apparently, the argument of the plaintiff was convincing, because the defendant instructed him to pick and pack grapes as from the next day, with this warning that in any event not to pack more than12 tons The plaintiff left and proceeded to Paphos and started packing grapes Whilst the work was going on the defendant phoned him on the 18th and repeated what he had told him earlier, "do not pack more than 12 tons of grapes" Finally, the defendant accepted 13½ tons instead of 12, and when the next morning the plaintiff visited the defendant, he was told' once again, "Stop packing grapes, there is a strike in England, I am not going to be pained."

The plaintiff, feeling aggrieved, left but returned again on the following day, that is to say the 20th, protesting, but gain the defendant repeated to him that he did not want any more grapes and handed over to him a letter of the same date The plaintiff then was asked by defendant to sign a copy of that letter, and he did so.

We propose reading it:-

"Dear Sir, Because of the continuing strike of the port workers in England and since the first ship which arrived in England with grapes has not been unloaded, I hereby inform you that you are free to dispose of the balance of the amount Of grapes Which you have an obligation to deliver to me, in accordance with your contracts. I remain your friend.".

The plaintiff, in reading the contents of that letter, protested once again and told the defendant, that he was going to sell the grapes elsewhere, but at the same time he was holding him responsible for any damage that he would suffer.

It appears that the plaintiff, being the injured patty, accepted the repudiation and treated the contracts as at an end as from the 20th, because of the failure of the defendant, to accept further deliveries of grapes and took all reasonable steps to mitigate the loss caused by the breach of the contracts, by selling grapes to Kokos lordanous on the 21st and to Viagrex and Smedley firms at the best price he could find. He also sold to defendant an amount of 4,693 okes at 60 mils per eke, and the rejected grapes were sold to keo factory at 21½ mils per keo Finally, the loss of the plaintiff caused by the breach of contracts in question, reached, the figure of £1,278.488 mils, plus £70 expenses for transporting grapes to Viagrex and Smedley firms, making a total sum of £1,348 .488 mils.

On August 31, 1970, the plaintiff visited the defendant, who had returned from England, and although the latter agreed that he owed him an amount of £569.224 mils as per agreed account between them, nevertheless, they failed to reach a settlement regarding the amount of damages claimed by him because of the breach of the contracts.

On September 8, counsel on behalf of the plaintiff wrote to the defendant asking him to pay to their client, within a period of 8 days, an amount of £569.224 mils as per account, and £1,278.650 mils representing the difference of the selling price of 70,270 okes of grapes disposed to others, and £70 for transport expenses In reply to counsel, defendant, on September [8, admitted that an amount of £424.490 mils was owed by him and enclosed a cheque for that amount in settlement of the account. Regarding the amount claimed as compensation, the defendant repudiated any liability and alleged that independently of the terms of their contracts, he never refused to accept deliveries of grapes from anyone of his sellers and Mr. stylianou (the plaintiff) never protested for not accepting deliveries of grapes from him Thus, it appears that defendant did not raise at all the point that the plaintiff requested him to release him from his obligations, to deliver grapes to him, because of the strike in England.

The plaintiff, in view of the stand taken by the defendant, brought action against him claiming, damages for breach of their contracts and the balance of the agreed amount of £140.704 mils The defendant denied that he was in breach of the contracts and alleged, in paragraph 6 of his defence, that he had no obligation at all to receive grapes either on the I 9th or the 20th of July, 1970 Regarding the contents of that letter dated July 20 he alleged that it was written by him at the request and insistence of the plaintiff, who was in a hurry to dispose of a quantity of grapes during those days, which quantity defendant had no obligation to take delivery of prior to the 25th July, 1970 and that the plaintiff wanted to be released from his obligations to the defendant, in order to enable him to dispose of that quantity of grapes the soonest possible Furthermore, defendant alleged that in any event, the purpose of the result of that letter was, .and is, to terminate the mutual promises of the parties regarding the balance of the amount of grapes which have not been received by the defendant and that as a result, the parties mutually released each other from their contractual obligations.

In addition, in paragraph 9, the defendant, after denying that the amount paid to the plaintiff was on account alleged that such payment was made in full payment of that account After quoting the contents of the stipulation of the 'cancelling clause' he pleaded that if it appeared that he failed to perform in any way his obligations imposed upon him by the contracts-a fact which he denies-he alleged that because the biggest amount of grapes purchased under the said contracts was delivered to him in order to be exported to the United Kingdom, and because during the material time a strike of the port workers was going on, such strike prevented the importation Then in sub-paragraph 2 of the same paragraph, the defendant concludes any kind of breach-Which is denied-and which may impose up9n him an obligation under the contracts, was due to the existence of the said strike and, therefore, it followed that he is exonerated from the obligation to pay any compensation.

Thus it apears to us that the defendant is, invoking, in his defence, the existence of the strike in England, but he has failed to plead clearly whether or not he was relying on the cancellation clause of the contracts in question.

In support of his defence the defendant told the Court that for the last few years, his main business was the export of grapes to the United Kingdom and Scandinavian countries and that he had been purchasing grapes from the plaintiff for a number of years He further stated that the reason why the contracts were to continue for a fixed period up to the 25th July, was because after that date the price of grapes abroad would fall very low.

With regard to the question of the breach of contracts, the defendant said that because in July there was a strike of the port workers in England (no exact date was given) the plaintiff approached him after the 15th and both agreed to suspend deliveries of grapes for a period of 3-4 days in order to see what to do next because of such strike Although, however, he assured the plaintiff by telling him not to worry and that he intended to take delivery of all, the grapes from him, nevertheless, he added, the plaintiff was still worrying about the grapes.

Then, the witness was questioned by his counsel, inter alia in these terms:-

"Q. What was his anxiety?

A. He was worrying in case I would not take delivery of the grapes because of the strike I presume.

Q. Eventually the climax came when on the 20th July he came to your office.

A. Yes.

Q. There you had a chat together and eventually  you wrote the letter.

A At his request I wrote the letter to release him from his obligation of the balance of the outstanding grapes to be delivered.

Q. Why did he want to be released from his obligations?

A. For fear that I might not, take delivery of his grapes, although I must say that 2 days before that date I had a telephone call from the Mayor of Paphos, who had sold some grapes to the plaintiff.

Q Did he on that occasion, or at any time thereafter, protest claiming damages from you for non-acceptance of his undelivered quantities?

A. He never protested or complained and he never asked for damages Later on I received a letter from his advocate."

Then the witness was cross-examined by counsel for the plaintiff in these terms

"Q. Notwithstanding the strike, you wanted to fulfil your obligations with the plaintiff.

A. Yes.

Q. You did not want to take advantage of the strike and not take delivery of the grapes.

A. No, I did not want to take advantage.

Q. Do you mean to say that although you assured him not to fear that you would take his grapes, he insisted that you release him?

A. This is what happened.

Q. It was after the 20th that you gave him the letter.

A. Yes.

Q. On the 20th he, asked you for the letter and you wrote this letter, exhibit 5.

A. Yes.

Q. You are an educated man.

A. Yes, I am.

Q. Why did you not write, 'According to your request'.

A. I wrote it that way because that is how it occurred to me at that time.

Q. I put it to you that it was your idea, because you mention the reason why he is free to dispose of his grapes.

A. It is one of the reasons.

Q. On the 20th July you told him that you would not take delivery of the grapes as there was a strike in England.

A. No, I did not tell him, since I took delivery on the 22nd.

Q. On the 20th July did he tell you that he wanted to sell grapes elsewhere, or simply asked to be released or that he was afraid you would not accept delivery of his grapes.

A. He asked me to release him as he was afraid I would not accept delivery of them.

Q. One of the reasons you wrote the letter was the strike in England and the fact that one of your ships had not unloaded.

A. One of the reasons was this that he asked for the letter."

Finally, the defendant admitted that in accordance with the contracts, an amount of 66,280 okes were not delivered to him by the plaintiff, and was questioned by the Court as follows:-

"Q. Is this due to the fact that the letter was signed?

A. Yes.

Q. Then you say that you are not invoking the condition of the contract that there was a strike.

A. Partly it had to do, but I was ready to honour my commitments in spite of the strike. I was affected in all the transactions."

There was further evidence on behalf of the defence by Costas Voskarides (a school teacher) who, being a friend of the defendant, was helping him during the summer season doing office work His evidence supported the version of the defendant that the plaintiff asked him to give him that, letter, dated July 20, in order to release him from his obligations under the contracts; and in order to enable him to dispose of the grapes elsewhere because he feared that grapes would not be shipped to England because of the strike.

The learned trial judges, who saw and heard the witness and had the opportunity of judging their de meanour in the witness box, after weighing carefully both versions, accepted the, version of the plaintiff-having impressed them as a truthful witness-and rejected the version of the defendant and his Witness Then they made their findings of fact, (a) that the letter in question was not meant to be a release given by the defendant to the plaintiff at the latter's request because he had never asked for a release and (b) because the defendant repudiated the contracts by his conduct on July 20 by telling the plaintiff that he did not want any more grapes and urging also The plaintiff to break his own contract with 'producers of grapes. Finally, the trial Court, after 'addressing its' mind to the legal principles regarding the question of compensation, awarded to the plaintiff the, sum of £1,258.418 mils damages and £ 140.734 mils, being the balance due and payable by the defendant to the plaintiff for the value of grapes sold and delivered to the defendant, cost of package, etc. etc.

The defendant appealed against the judgment of the trial Court, and counsel, after accepting judgment with regard to the amount of £ 140.734 mils, mainly argued on behalf of the appellant that, on any view of the matter the appellant was not liable in the action on the ground that he was entitled under the cancelling clause, to treat the contracts as at an end once there was a strike of the port workers in England who were refusing to unload the cargo of grapes and because such strike was within the cancelling clause which related to the general business of the appellant.

Counsel on behalf of the respondent urged that the appellant was liable for the breach of the contracts in question because under the terms of the cancelling clause, he was not entitled to cancel the said contracts once he did not give notice to the other side; and that on the true construction of the said clause, the perils coveted were strikes taking place in Cyprus only and not strikes connected with the unloading of a snip carrying grapes to England.

Having heard both counsel, we would state that any stipulation in the contracts relieving the appellant from responsibility being inserted for his own benefit, is to be construed against him and the burden of proving that the cancelling clause is operative in any particular case rests on him. In this case the appellant, although he was at pains to protect himself by expressed stipulation in the said cancelling clause, against the consequences of delay in the performance of his obligations to receive grapes, in case of a general refusal by workers to work in consequence of an alleged grievance, and that such strikes would be connected with the carrying out of the work as a whole, he has never exercised that option; consequently, once he has failed to give notice to the other side that he was relying on the cancelling clause, he cannot now complain That this is so is made abundantly clear, if one takes into consideration the whole of the evidence and the material which was before the trial Court, (a) the letter written by him to the advocate of the respondent (b) the evidence given by him in Court (c) his conduct and, (d) particularly the answers given to the trial Court on this question.

We would, therefore, find ourselves in agreement with counsel for the respondent that in the circumstances' of this case, the appellant has failed to give notice to the respondent that he was cancelling the said contracts relying on the cancelling clause The next question-apart from the question of giving notice to the other side-is whether on a true construction of the cancelling clause, in the context of the whole of the contracts, the appellant was entitled to the protection of such clause, i.e. to exempt him from liability to pay damages to the respondent.

We think that we have to reiterate what we have said earlier, that the burden remains on the appellant of proving that the cancelling clause is operative in his case, and after taking into consideration everything which has been said, we find ourselves unable to subscribe to the view of Counsel, because in our opinion, on any view of the cancelling clause, and reading the contracts as a whole, the appellant was not entitled to cancel the said contracts; once that such stipulation, being inserted for the benefit of the appellant, should be construed against him, and that the words, used are to be taken in their obvious meaning The construction placed upon by counsel, necessitates the introduction into the cancelling clause of the words, "strike or strikes which are connected with the carrying out of the work as a whole", after the words, "to cancel the present contracts", even if strikes are taking place also in England, which would in our opinion not only violate the rule of construction that words should never be added in contracts, unless it be absolutely necessary to add to them in order to give effect to the plain and manifest intention of the parties. Cf. Adamson Newcastle Steamship Freight Insurance Association [1878-79] Q.B.D. 462, at page 465.

In Reardon Smith Line, Ltd. v The Ministry of Agricultural Fisheries and Food [19591 3 All ER. 434 at page 447-448,McNair,J dealing with the Construction of a charterparty containing an exception clause regarding strikes, etc. had this to say:-

"For my part I approach the question of implying terms into a written contract with great caution, especially when the material contract is a charter-party such as those in the present cases, which make detailed and elaborate provisions for a great and varied number of contingencies. As Scrutton, observed in Brightman & Co v Bunge Y. Born [1924] 2 K.B. 619, at page 629, in relation to the charterparty there in question, it contains phrases not easy to construe, as is often the case when parties with conflicting interests adopt an ambiguous form which each side dare not make precise for fear the other party should, disagree with their meaning if stated precisely'."

Then, McNair, J. goes on, "the limits within which terms can be applied are now well settled in principle, though difficulty still lies in their application The Court will only imply such terms as are necessary to give such business efficacy to the contract as both parties must have intended It is not sufficient to show that an implication would be reasonable, for it, is not the function of the Court to make a contract for the parties. I bear in mind the often quoted passage in Lord Watson's speech in Dahi v Nelson, Donkin & Co [1881] 6 App Cas.38, at page 59."

We propose quoting ourselves that passage, in which Lord Watson, dealing with the construction of a charter-party had this to say, "I have always understood that, when the parties to a mercantile contract such as that of affreightment, have not expressed their intentions in a particular event, but have left these to implication, a Court of Law, in order to ascertain the implied meaning of the contract, must assume that the parties intended, to stipulate for that which is fair and reasonable, having regard to their mutual interests and to the main objects of the contract In some cases that assumption is the only test by which the meaning of the contract can be ascertained. There may be many possibilities within the contemplation of the contract of charterparty which were not actually present to the minds of the parties at the time of making it, and, when one or other of these possibilities becomes a fact, the meaning of the contract must be taken to be, not what the parties did intend (for they had neither thought nor intention regarding it), but that which the parties, as fair and reasonable men, would presumably have agreed upon if, having such possibility in view, they had made express provision as to their several rights and liabilities in the event of its occurrence."

But regarding the case in hand, it would, as it seems to us, had we followed the contention of counsel for the appellant, defeat the plainly expressed intention of the parties, and might give rise to questions of considerable difficulty. Of course, if the parties really intended that the cancelling clause should also provide for the protection of the appellant in case of strikes in England, or indeed in Scandinavian countries, connected with the unloading of a ship carrying grapes there, in our view, it would be very easy for them to say so specifically in advance But the appellant, although he may have had that possibility in mind, has failed to make express pro-vision in the contracts in question, and it is not for us to make a contract for the parties It. is worthy of note, in support of our view, that the plaintiff accepted responsibility only regarding the place of delivery of grapes, and of transporting the picked and packed grapes to the customs house of Limassol or to the airport in Nicosia, on payment of all expenses by the appellant, and, nothing more.

We think it, therefore, much safer to adhere to the words which the parties have, used, and to give effect to them according to their plain and ordinary signification, than to put a construction upon them which necessitates the introduction of additional words With this in mind, we are of the opinion, that the contention of counsel for, the appellant fails because the cancelling clause, as correctly construed, does not exempt the appellant from liability to pay damages to the respondent, once the strike was made outside Cyprus and by a different class of workmen, which had, nothing to do with the carrying out of the work of the appellant as a whole, but only with the unloading of a ship in England.

The next contention of counsel was that the trial Court erred in awarding damages to the respondent because it took into consideration sales of grapes made after 25 July, 1970 and that there was no evidence that the grapes sold fulfilled the conditions laid down in the said contracts, that is to say, of being suitable for export, as required by the provisions of section 4 of the Agricultural Produce (Export) Law, Chapter 28, and the regulations made thereunder, in the absence of any examination by the inspector and of his issuing a certificate that they were fit for export.

We think that once the appellant was fouj1 by the trial Court to be in breach of the contracts in question, and we find ourselves in agreement with such finding for the reasons we have given earlier in this judgment, the appellant knew that the respondent had to secure the quantity of grapes required for the purpose of fu filling the contract with him, and inevitably he had to sell them in the open market; and that the compensation which must be paid to him should be measured by ascertaining the difference between the contract and the market price on the day when payment was made.

This rule, of course, is subject to this limitation, that the law imposes a duty upon the plaintiff to take all reasonable steps to mitigate his loss caused by the breach of contracts and debars him from claiming compensation for any part of the damages, which is due to his neglect to do so. We think we can do no better than to adopt and follow what has been said in British Westinghouse Electric and Manufacturing Co. Ltd. v. Underground Electric Railway Co. of London Ltd [1912] A.C. 673 at page 688, by Viscount Haldane, L.C. which we quote, "In order to come to a conclusion on the question as to damages thus raised, it is essential to bear n mind certain propositions which I think are well established. In some of the cases there are expressions as to the principles governing the measure of general damages which at first sight seem difficult to harmonize. The apparent discrepancies are, however, mainly due to the varying nature of the particular questions submitted for decision. The quantum of damages is a question of fact, and the only guidance the law can give is to lay down general principles which afford at times but scanty assistance in dealing with particular cases. The judges who give guidance to juries in these cases have necessarily to look at their special character, and to mould, for the purpose of different kinds of claim, the expression of the general principles which apply to them, and this is apt to give rise to an appearance of ambiguity.

Subject to these observations I think that there are certain broad principles which are quite well settled. The first is that, as far as possible, he who has proved a breach of a bargain to supply what he contracted to get is to be placed, as far as money can do it, in as good a situation as if the contract had been performed.

The fundamental basis is thus compensation for pecuniary loss naturally flowing from the breach; but this first principle is qualified by a second, which imposes on a plaintiff the duty of taking all reasonable steps to mitigate claiming any part of the damage which is due to his neglect to take such steps In the words of James L.J. in Dunkirk Colliery Co. v. Level [1878] 9 Ch.D. 20 at page 25,'The person who has broken the contract not being exposed to additional cost by reason of the Plaintiffs not doing what they ought to have done as reasonable men, and the Plaintiffs not being under any obligation to do anything' otherwise than in the ordinary course of business'."

The question whether a plaintiff has discarded a reasonable opportunity to mitigate the damage is one of fact, depending upon the particular circumstances and, in our view, the burden of proving his failure rests upon the defendant. Payzu, Ltd. v. Saunders [1919] 2 KB. 581;Shearman v. Folland [1950] 1 All E.R. )76; also Houndsditch Warehouse Co Ltd. v. Waltex Ltd [1944] K.B. 579) With this in mind, and taking into consideration the facts and circumstances of this case, as well as that the respondent was dealing with perishable goods, we think, in the circumstances, he was doing what was reasonable by selling locally first class grapes in order to mitigate his loss and there is no doubt, once the appellant refused to accept deliveries, he was doing what was expected of a prudent person to dispose of his grapes We do not think that there is room for the, complaint of counsel' that in order to claim 'damages for those quantities sold locally, the respondent had to prove that the grapes sold were certified as being fit for export. On the contrary, we think that the onus rests on the respondent to show to the Court that the grapes sold locally were inferior in quality, once the appellant knew that the respondent had entered into contracts with other producers, in order to meet his obligations to him.

For these reasons, we have reached the conclusion that the contention of counsel fails, and we would affirm the judgment of the trial Court on this issue because, in our view, the Court properly calculated the amount of loss suffered by the respondent because of the breach of the contracts in question In these circumstances, we would dismiss this contention of counsel also, and we would, therefore, dismiss the appeal with costs in favour of the respondent.

Appeal dismissed with costs.

cylaw.org: Από το ΚΙΝOΠ/CyLii για τον Παγκύπριο Δικηγορικό Σύλλογο