LALCHAND DEEPCHAND Vs. BAIJNATH JUGAL KISHORE

JUDGEMENT

(1.) This suit arises out of a very elementary trade dispute. It might have been decided by any trade arbitration in perhaps a few hours at a cost of less than Rs. 100. As it is, the parties quite rightly preferred to have their disputes decided by this Court which means decided by a system involving the maximum expense and the greatest uncertainty of result. However the case has been conducted in the best tradition of our system and with ability specially by counsel on behalf of the plaintiff who had certain initial difficulties to contend with.

(2.) It would still remain a very simple matter but for certain considerations which I would enumerate. The first is the matter of pleading; the second is a matter arising out of the nature of the trade in question, namely the manner in which this sample or the alleged sample was dealt with, the third the manner in which the sample was compared with bulk. These two matters would be of course one with which expert arbitrators would be competent to deal, the trade in question being one where certain system or methods of conducting business have become specified or recognised. The fourth is the fact that counsel for the defendant has been able to rely on a certainly attractive point of law. I have not referred to the fact that there is a direct conflict of evidence between two respectable merchants. That is a matter which I have to deal with in the normal course.

(3.) The few facts I state are as follows: The plaintiff and the defendant had business in shellac before, but in April 1934-and I am now stating the undisputed facts-the plaintiffs who are commission agents or local representatives of certain up-country traders had four lots of old shellac in their godown. They are referred to respectively as 124 bags, 157 bags, 22 bags and 254 bags. A broker, Routhmull, was authorized by the plaintiff to negotiate the sale. So much is common ground. He approached the defendants buyers and in April 1934 on the 30th the sale was concluded in respect of 124 bags and on the 7 May, if my recollection is right, the contract was concluded in respect of the 157 bags. This is the lot in dispute. It is admitted, or at any rate, established that between the first enquiry by the broker and the respective dates of the sowda, certain samples of four lots were sent by the buyers to Messrs. R.B. Briggs & Co. for analysis. The analysts report has been put in and proved. The respective results, I will explain in greater detail hereafter, were 10.05 impurities for 124 bags, 13.05 for 157 bags, 20.06 and 36.26-a very wide range of variation 124 bags were delivered and retained. They have been paid for. The 157 bags were delivered on the 13 May. The weighment, which I shall have to describe in greater detail, took place on the 16th. On the 20 or 21 the buyers sent a sample of the bulk to Messrs. Briggs & Co., with a result showing 21 6 impurities, and on the 24 they sent a further specimen which showed 24.75 per cent impurities. I have advisedly used the word specimen for the following reasons: The story of the defendant is that Routhmull brought the sample and the purchase was by sample and that the goods in the godown were never inspected. The sellers story is that one of the defendants or rather his brother came and inspected the goods in the godown and himself took away specimens for the purpose of finding out what price he should offer. In the former case it would be what is technically known as a sale by sample and in the latter case it is not. In both cases the goods sold were "ascertained" or "specified." That is a matter which relates to the point of law argued before me. That then is the first main point on which there is conflict of evidence. The second is what happened at the time of delivery? The sellers say that the goods were weighed and allowance was fixed for what is called "refraction," that the buyers accepted the goods without any objection, that bills were sent, they promised to pay, but no payment having been made the solicitor s, letter was sent to them on the 6 June. The buyers say that objection was raised at once, or at any rate on the 16th, that the weighing, etc., was provisional, that the sellers requested that a further and more representative sample of the bulk should be sent for analysis and agreed to take back the goods if it was not successful, agreeing further, after they had heard the result, actually to take them back. The letters written by the sellers attorney proceeded upon the basis that the sale was a sale by sample; so does the plaint. That brings me to the first matter of difficulty which under our system of law confronts me.