(MULKOORI) GAVARIAH Vs. CHENNA SARIAH

JUDGEMENT

(1.) This is a curious and in some ways rather an interesting case. The suit is really one on accounts, and the dispute arises about two entries in the account, one on the credit side and another of exactly the same amount in respect of the same goods on the debit side. The facts are these: that the present plaintiffs bought goods from the business represented by the defendants to the value of Rs. 13,471 but by arrangement credit was given by the sellers to the buyers and the goods were left in the custody of the sellers, the contract being that the sellers were entitled to get their money on giving delivery of the goods. What happened was, the sale having been about the 1 February, on the 3 February the sellers pledged these goods with the bank of Madras as a cover for a debt of their own. The learned Judge has found and we agree with his finding that there is no evidence which can be believed that the buyers consented to this or indeed knew anything about it until late in October. What the learned Judge has done is this. He has treated the credit entry as being a proper credit but when he comes to the debit entry he says: Oh, no, that is not so. The real damages--because this cross-entry must be in the nature of damages--are damages for conversion and therefore what I have to find is the value of the goods at the date of the conversion.

(2.) But he goes on to say: I find that the real conversion was in October when letters passed between the parties, the buyer pressing for the goods and the goods not forthcoming as the sellers did not have them.

(3.) He says, therefore, as the value of the goods had very largely dropped in October instead of letting the debit entry stand at the original figure 13,471, the figure must be cut down to some Rs. 8,000 or 9,000. His view was that, as the property in the goods had passed on the day of the sale, therefore, on the principle of "res perit domino" any loss must fall upon the owner, that is to say, the buyer to whom the property had passed. In our opinion the learned Judge misapprehended the law on the snbject, which is very clearly summarized in Benjamin on Sale. The real truth of the matter is that the entry of Rs. 13,471 on the debit side was not damages at all. It was simply an entry to cancel the other entry on the other side. In Chinery V/s. Viall [1860] 5 H. & N. 288 which was referred to, a man had sold some sheep upon credit in such circumstances very like these--that the property had passed to the buyer but the sheep remained in the charge of the seller; the seller improperly sold them to a third party and the decision of Baron Bramwell in that case is accepted by Benjamin and by the profession generally as completely laying down the true distinction between that case and another class of cases to which I will come presently. That was a suit for damages for trover and the learned Judge held that in computing the amount of damages to be paid by the tortfeasor the plaintiff must bring into the account the fact that he had never paid for the sheep, so that, if that value of the sheep at the time of the conversion was, say ?120, and the buyer had bought them for ?100, his loss is ?20 because he would naturally have made the profit of ?20 if he had paid the price of the sheep. The learned Judge points out that to give him as was contended the value of the sheep at the time of the conversion as his damages would simply be to give him a present of a flock of sheep for nothing.