SHA THILOKCHAND POOSAJI Vs. CRYSTAL AND CO

JUDGEMENT

(1.) The defendants are the appellants in this appeal which is directed against the judgment of. Mack J. sitting on the original side of this Court and the complaint is regarding the dismissal of the counter claim which they had filed in C. S. No. 384 of 1947, a suit filed by the plaintiff against them, The appellants are the buyers in a contract for the sale of goods while the respondent is the seller or the representative of the sellers.

(2.) The facts giving rise to C. S. No. 384 of 1947 may be briefly stated. The plaintiff is a general merchant, Importer and Exporter and commission agent carrying on business in Madras while the defendants are a firm of merchants dealing among others in stationery articles. After some previous correspondence to which it is unnecessary to refer the defendants placed an order with the plaintiff on 30-121946 for the supply to them of 550 gross of Everlast fountain pens. The description of the pens was "1000 D. F. regular fills." The price per gross was 74.95 dollars. This was forwarded to Messrs. Frazer and Co., New York, who themselves were middlemen getting these goods from manufacturers of these pens. The price here mentioned included the commission payable to the plaintiff but by a subsequent arrangement evidenced by Ex. P. 2 dated 4-1-1947 it was agreed by the defendants that invoices might be made out for the price to be paid to Messrs. Frazer and Co., in America while they themselves undertook to pay five per cent, of the value of the order as com-mission to the plaintiff. This was accepted by Messrs. Frazer and Co., New York by their letter, Ex. P. 3, dated 30-1-1947. The description of the goods for which the order was accepted stated in this acceptance letter was 550 gross, styled 1000 De Luxe Dropper filled (regular) fountain pens." The price was mentained as 74.05 dollars per gross F. AS. New York and it was added

(3.) When the defendants found that 180 gross were of solid colour they immediately contacted the plainliff and desired him to communicate with his foreign principals to rectify the matter. As this correspondence was proceeding, the defendants also rejected the 180 gross fountain pens of solid colour as not conforming to the description contracted for by them. This rejection was accepted orally by the plaintiff and the matter was put in writing in Ex. P. 4 addressed by the defendants to the plaintiff on 31-3-1947. They wrote