HARNARAIN RAMCHANDRA JAISWAL Vs. FIRM RADHAKISAN NARAYANDAS

JUDGEMENT

(1.) THIS is a Letters Patent Appeal from the judgment and decree of Niyogi J. in second Appeal No. 418 of 1939, decided on 2nd February 1942.

(2.) THE facts are simple. The plaintiff is the appellant who succeeded in the trial Court but failed in the first and second appeals. His case is that the Firm Radhakishan Naraindas, biri merchants, (respondent 1) purchased from him all the bidi leaves which were stocked in his godowns at Mauzas Umaria and Baghraji, for a sum of Rs. 1500 and that the purchaser paid Rs. 100 as part of the price on the same date. Defendant 2 (now represented by respondent 1(b)) executed on 8th February 1987, a document which is styled as a receipt but is really an agreement recording as well a memorandum of sale. This document, to which it may be necessary to" refer frequently reads as follows: Your bidi leaves, which are stored in five kothas (rooms) at mauza Umaria, (and) which number about 2,35,000, two lacs and thirty-five thousand, are contained in about 850, eight hundred and fifty, bags. Out of this, about 20, (twenty) thousand leaves are stored at mauza Baghraji. All these leaves excepting bardana (bags) have been purchased in whole lot from you for Rs. 1500, fifteen hundred rupees. On account of earnest money thereof you have been given a cheque for Rs. 100, one hundred rupees, on the Allahabad Bank. Remaining leaves in 20, twenty days (we) will remove the entire goods. (We) will pay the remaining amount. Hence (we) have executed this receipt so that it may remain on record and be useful at the time of necessity. Finis. Dated 8th February 1937, A.D.

(3.) THE case of the buyer was that the sale was by sample and that as the remaining gaddis were not up to sample and as the quantity was short he was entitled to reject the balance of the goods and pay only for those which were up to sample and which he bad taken.