AGA MIRZA NASARALI KHOYEE AND CO BY ITS SOLE PROPRIETOR, AGA MIRZA NASARALI KHOYEE Vs. GORDON WOODROFFE AND COMPANY LTD

JUDGEMENT

(1.) On the important questions of law relating to the sale of goods which this appeal raises, able arguments have been addressed to us by the Counsel on both sides. The suit has been brought for the price of certain skins sold and the defendants have counterclaimed for damages on the ground that the goods supplied do not fulfil the description in the contract. The plaintiff against whom damages have been awarded by the learned Trial Judge, has filed this appeal.

(2.) The contract is obviously not for sale of specific goods and this has been conceded by Mr. Radhakrishnayya for the appellant. We must therefore proceed upon the footing that the sale was by description and that the contract is governed by Section 16 of the Indian Sale of Goods Act. The first question that arises is, what is the effect of the stipulation in the contract that runs: To be fair average quality of description and to be passed by Messrs. Gordon Woodroffe & Co., Ltd., Aladras, as such".

(3.) In other words, does it, upon a true construction, mean that if the goods are passed by Messrs. Gordon Woodroffe & Co., there is an end to the matter or, does the clause impose a further condition, namely, that the goods should in addition be of the quality mentioned ? The case which both sides have strongly relied upon, is Bird V/s. Smith (1848) 12 Q.B. 786: 116 E.R. 1065. The contract there was for sale of iron rails to be inspected and certified as then agreed upon between the parties and to be equal in quality to any rails made in Staffordshire.