PRANLAL BHAICHAND Vs. MANEOKJI PETIT MANUFACTURING CO LTD

JUDGEMENT

(1.) In this suit the plaintiffs sue for the price of certain piecegoods sold by them to the defendants under a contract dated October 3, 1929, which is Exh. A. The first plaintiffs are the manufacturers. and the second plaintiffs are the selling agents, through whom the contract was made. Under the contract the goods sold are described as " banto to be manufactured, from November 1929, to January 1930," and the purchasers are to take delivery of the bales in those months, and if they fail to take delivery they are to be debited with interest. The goods are described as partly " Satin Gangaghat" and partly "domestic ", but the argument on the appeal has been confined to the " Gan-gaghat" goods. The price is to be at the rate of fourteen annas per lb.

(2.) Mr. Justice Rangnekar gave judgment for the plaintiffs, and on the appeal, three points have been argued by the defendants: first, that the sale was by sample and that the goods were not in accordance with sample, secondly, that the property in the goods had not passed to the defendants and that the plaintiffs cannot sue for the price, and, thirdly, that the plaintiffs failed to deliver goods, and never made a tender of goods, in accordance with the contract.

(3.) On the first point, I agree with the learned Judge in thinking that the sale was not according to sample. The learned Judge based his decision on this part of the case largely upon the evidence of Monji, the manager of the second plaintiffs, and he dls-belived the evidence of the defendants. In my opinion, even if the evidence of the defendants upon the points be accepted, they failed to show that the contract was for sale by sample. The contract itself says nothing about sample, so the defendants must prove an independent collateral agreement (Indian Evidence Act, Section 92, proviso 2). The evidence of Chunilal on behalf of the defendants only comes to this, that about three weeks before the date of the contract he had a conversation with Monji who said that the defendants might purchase according to the sample which he produced; Chunilal took the sample, and discussed the matter with his partner and his salesman, and they decided to buy according to sample ; but when the actual terms of the contract came to be discussed, no further mention was made of a sale by sample. It seems to me clear that even on this evidence the plaintiffs were not bound by any contract to sell by sample. They originally expressed a willingness to enter into a contract for sale by sample, but when the actual terms of the contract came to be negotiated, they could have said that they had changed their minds, and were no longer prepared to sell by sample. As the defendants themselves did not insist upon a sale by sample when the contract was entered into, it was not necessary in my view for the plaintiffs to mention the matter again.