K M P R N M FIRM MERCHANTS CARRYING ON BUSINESS Vs. PTHEPERUMAL CHETTY A MERCHANT CARRYING ON BUSINESS

JUDGEMENT

(1.) The transaction out of which this suit arises took place in July 1718, a time when speculation in piece goods was very brisk, Plaintiffs sold to defendant 14 bales of bleached mull. The goods were lying at the time with Muruganatha Chetty and Sons from whom plaintiffs had apparently themselves purchased them and whose shop was close to defendant's shop. Defendant in his turn sold the bales to one Amir Chund Idanmul giving him a delivery order on Muruganatha Chetty. Idanmull refused to take delivery of six out of the fourteen bales on the ground of unsoundness. Defendant complained to plaintiffs, who undertook to replace them by 6 sound bales, and induced defendant to take charge of the 6 bales left in Muruganathan's hands. This defendant did : but plaintiffs failed to exchange them for sound bales. Early in September prices fell heavily in consequence of the looting riots: and when Plaintiffs subsequently offered to deliver 6 sound bales, defendant said it was too late. After some negotiations it was agreed that the sale contract in respect of these 6 bales should be cancelled. Plaintiffs took back 3 bales but did not take delivery of the balance and now sue for the price of the whole quantity. The above is defendant's version which is spoken to in evidence and which the learned Trial Judge has found to be true. Plaintiffs deny any undertaking to replace the 6 bales, or agreement to cancel the sale In respect of them; and sue on the basis of a completed sale. On a consideration of the evidence I have no hesitation in agreeing with the learned Trial Judge for the reasons given by him in accepting the defendant's story as to the circumstances in which he came to be in possession of 6 bales, and as to the agreement to cancel the sale in respect of them. This would entail the dismissal of plaintiff's claim for the price of the 6 bales--vide Section 62 of The Indian Contract Act.

(2.) Appellants Vakil's main argument before us has in fact been that Section 62 has no application because the agreement to cancel the sale as regards the 6 bales was made after the defendant had broken the contract by omission to pay for the goods delivered. For his proposition of law he relies on Monohur Koyal V/s. Thakur Das Naskar 1.

(3.) Mr. G. Krishnaswamy Aiyar assures us that this argument was addressed to the learned Trial Judge although there is no reference to it in the latter's judgment. It rests on the assumption that there was a breach of the contract before the agreement for cancellation and this is certainly neither found nor admitted, nor is it raised in any of the issues in the case. Before this plea of plaintiffs could be admitted, the fact of breach would have to be decided in their favour; and we should have to call for a finding on a properly framed issue.