RAMKISHANDAS Vs. VINODIRAM BALCHAND

JUDGEMENT

(1.) THIS is a plaintiffs' second appeal against the judgment and decree dated the 31st of March, 1958 passed by the Addl. District Judge Shivpuri, in Civil first appeal No. 158 of 1952 whereby he reversed the judgment and decree dated 21 -9 -1951 passed by the Civil Judge 1st Class Shivpuri, in civil original suit No. 10 of 1951.

(2.) THE suit out of whish this appeal arises was filed on the basis of the following facts: The plainstiffs Ramkishandas, Ghanshyamdas and Shyamsunder owned an oil -mill styled as "Ganesh Oil Mills" at Shivpuri. The defendant firm Vinodiram Balchand purchased through their broker at Delhi 500 maunds of aettem seed oil from the plaintiffs' oil mills 250 maunds at the rate of Rs. 56 -4 -0 per maund and 250 maunds at the rate of Rs. 56 -8 -0 per maund. The contract was F. O. R. Shivpuri.

(3.) THE defendant in his written -statement admitted that 250 maunds of cotten seed oil were purchased at the rate of Rs. 56 4 -0 per maund. He pleaded that a sum of Rs. 250/ - was deducted from the contracted price on account of (he fact that the oil supplied was found to contain more than 3% fatty acids, which according to him was the limit agreed upon. The defendant pleaded that the plaintiffs agreed to deduction of a sum of Rs. 250/ - because of the fatty aeids being in exeess of 3pc. With regard to be second contract at the rate of Rs. 56 -8 -0 per maund the defendant pleaded that since the plaintiffs did not agree to the condition that the oil should not contain fatty acids exceeding 3 p.c. he did not confirm the contract. He therefore, contended that the plaintiffs were not entitled to claim any damages for breach of the contract In his special pleadings the defendant pleaded that there was an express condition in the contract between the parties that fatty acids shall not exceed 3 p. c. and that the plaintiffs having not abided by this term of the contract the defendant had a right to repudiate it. In the alternative he pleaded that all contracts of purchase of cotton seed oil are subject to an implied condition that fatty acids should not exceed 3 p.c. It was also, stated that the defendant had referred to this condition regarding fatty acids in his letter dated 10 -9 -1950 and that the plaintiffs having not objected to the same they should be deemed to have admitted it.