Ramdeyal Ram Narain vs Bhairo Bux Gouridutta

Jwala Prasad, J.—This appeal must be dismissed. Toe defendant contracted to purchase five bales of thread No. 12 count from Bala Buksh. The plaintiffs say that Bala Buksh acted as their aganb in the contract in question. The contract took place on the 19th August 1918. The-defendant next day went to Bala Buksh and wanted the goods in question. He wag directed to take delivery from the plaintiffs'' godown. He sent his servant and on getting information from him himself went to inspect the five bales which wars no doubt No. 12 count. He, however, found the bales damaged and refused to accept all five, but offered to accept three out of the five. The plaintiff did not agree to this and the defendant therefore did not take delivery. The plaintiffs sold the properties by auction according to the custom of the firm in such matters and the price which they fetched at the auction sale was less than the price which under the contract with the defendant they expected to get. The difference was Rs. 894 and the plaintiffs therefore brought this action to recover the said sum u/s 107 of the Indian Contract Act.

The learned Vakil on behalf of the appellant says that the goods were ascertained and the sale was complete on the 19th August, 1918 and that the sale was therefore irrevocable. According to him the property passed to the defendant and the defendant was therefore not competent to refuse to take delivery of the same. On the other hand, it is contended on behalf of the respondent Chat the goods were not ascertained inasmuch as the five bales of thread were mixed up with other goods in the godown of the plaintiffs and until they were separated from those goods they could not be said to have been ascertained. He relies upon Section 83 of the Indian Contract Act and the learned Vakil on behalf of the appellant on the other hand relies upon Section 78 of the said Act. Both sides have cited authorities in support of their contentions. The plaintiffs rely upon the cases of Shosi Mohan Pal Chaudhri v. Nobo Kristo Poodar (1879) 4 Cal. 108, Brij Kumari v. Salamandar Fire Insurance Co. (1905) 32 Cal. 816 and Kuttayan Chetty v. Palaniappa Chetty (1904) 27 Mad. 540. The defendant relies upon the cases of Mitaheal Reid & Co. v. Baldeo Das Khettre (1888) 15 Cal. 1 and A. Yule & Co. v. Muhammad Hussam (1898) 24 Cal. 124. The Courts below have upheld the contention of the defendant and have held that the goods were unascertained. The case, however, turns upon the actual contract between the parties. Bala Buksh with whom the defendant entered into the contract is dead. The defendant''s case was that he had agreed to purchase the goods on the condition that they were to be in good travelling condition inasmuch as he was himself an agent and had to send the goods to his principals who lived 80 miles away from Banchi where the plaintiffs reside and where the goods were at the time. He also says that he agreed to purchase the goods in "an undamaged condition", and in order to find out that the properties were undamaged and fit to be sent on to his principal, he purchased the properties subject to "inspection and approval." The learned Judicial Commissioner upon appreciation of she evidence in the case has held that the goods were purchased subject to the conditions stated above by the defendant, namely, that they were to be "undamaged" and "in good travelling condition" and the purchase should be further "subject to inspection and approval." This is a finding of fact and is conclusive in second appeal. It has not been challenged and could not possibly be challenged in second appeal; they are therefore conclusive and binding upon us. Upon this finding there was no complete sale until there was an inspection by the defendant and approval by him. On inspection he rejected them. The lower appellate Court has found that "two of the bales bore marks of tampering and the gunny packing had been stitched and there was note in each bale underneath the place where the gunny cloth had been marked. The yarn was found in these bales to be loose." Therefore the defendant did not commit any breach of the contract and the appeal must fail.

If the defendant''s case is true--and it has been found to be so--then the goods were not ascertained until they were inspected and approved of by the defendant. In this view of the case the Court below is right in holding that the goods were unascertained. u/s 118 of the Indian Contract Act he had the right to refuse to accept the goods when tendered on the 19th August, 1918. At the same time even if the contract was complete unconditionally on the 19th August when Bala Buksh and the defendant agreed about the sale of the five bales of thread No. 12 count which were admittedly seen by the defendant, there was an implied warranty that the defendant would get m good condition the five bales of thread of No. 12 count. The goods which he was offered to take on the 19th August, though they answered the description inasmuch as they were the five bales of thread of No. 12 count, were not in the condition in which these bales usually are to be found. There was apparent damage to the bales and the gunny bags; and the defendant could never have contracted to purchase the very five bales of thread of No. 1& count which were lying in the godown of the plaintiffs in the condition in which they were. The contract was of a general nature with respect to the property known by a certain description. There is always to my mind an implied warranty that the goods will be such as are usually sold under that denomination and not in a damaged condition. The defendant was therefore well within his rights when he rejected the goods.

The appeal is therefore dismissed with costs.

Ross, J.

I agree.