BOISOGOMOFF Vs. NAHAPIET JUTE COMPANY

JUDGEMENT

(1.) This is a suit to recover damages for an alleged breach of warranty as to the quality of 6,000 kutcha bales of jute purchased by the plaintiff from the defendants. There is no dispute as to the contracts which are set out in the plaint: the only dispute is as to the quality of the goods. The jute was to be of the standard quality of a certain mark, T.S.N./N2, and this, admittedly, means that each bale was to contain 40 per cent, of what is known as Hessian warp. The sole question is whether the bales delivered did contain that percentage of Hessian warp and tins is a question of fact. The jute was delivered by the B defendants, and immediately after delivery the plaintiff complained that the jute was not up to the standard quality of the mark, and asked the defendants to send down a representative to inspect it. Some correspondence then ensued: the plaintiff suggesting a survey and the defendants proposing an arbitration by the Bengal Chamber of Commerce; the plaintiff declined the latter offer, as he was entitled to do, and I regret that the defendants agents should have thought it necessary to make the imputation they did against the plaintiff in the letter of the 27th November 1900. The price paid for the whole of the jute, including 1,000 bales, as to which there is no dispute, was about 1,50,000 rupees. The plaintiff then appointed two surveyors to examine the jute, and the defendants sent down two gentlemen to "watch" the proceedings on their behalf. I will deal in a moment with what took place on this survey and subsequently.

(2.) Before examining the evidence, I desire to deal with two points, which are prominently dealt with in the judgment of Mr. Justice Stanley. If by his observation the learned Judge intended to convey that, before recovering damages in a case of this class, the plaintiff was bound to examine each of the 6,000 bales of jute, and, as the result of such examination, was bound to show that in each bale the jute fell short of the requisite standard, I most respectfully differ from him. If such were the usage, it would, I fear, impose a serious clog upon commercial transactions. But it is clear from the evidence that this is not so. Mr. Duncan, one of the plaintiff's witnesses, says: "I examined 12 bales out of the bulk, which was in the flats there. It is usual to examine certain lots only in making a survey. To take a part of the bulk, to examine a part and make a rep art on that part, we are supposed to take 10 or 12 bales, a sufficient quantity to form a judgment as to what the bulk is;" and further on he says: "In order to find the average of a whole consignment, it is not usual to examine the whole consignment. To arrive at an average for the consignment, we take a portion for selection. The average of the consignment is taken to be that of the portion selected. We took the quantity which we considered would give us a representative quantity of the bulk," and Mr. Wallace, the defendants witness, on being asked "Do you consider that a test of 12 bales is sufficient for a cargo of 10,000?" says: "Picked out here and there in the bulk, I should think it was. Selected as these were, I should think it was so."

(3.) The other point is that the plaintiff ought to have shown how he had dealt with the jute which was delivered, and whether he T had suffered any and what loss by reason of the jute not being up to the warranted standard. There would have been much force in this contention had it not been that, according to the evidence, the measure of damages, or perhaps, I should say, the method of ascertaining the damages in a case of this class appears to be established and recognised in the trade. It would appear that the buyer is entitled in respect of the inferiority alleged in this case to an allowance of six annas per maund, the rule being to allow two annas per maund for a deficiency of 5 per cent, of Hessian warp. Both Mr. Duncan and Mr. Crichton say so, and Sir Allan Arthur, who is experienced in these matters and who was called for the defendants, appears to be of the same opinion. Mr. Crichton speaks of it as a custom in the trade. Moreover, we have heard no argument from the respondent's Counsel that, if the plaintiff is entitled to damages, the damages as regards the quality of the jute have been assessed upon a wrong basis.