M S DORAISWAMI MUDALIAR Vs. PKMSUBBANNA CHETTIAR

JUDGEMENT

(1.) The facts of this second appeal may be stated as follows. The plaintiff is a commission agent of Vellore and the defendants are merchants at Tiruppur. On 21 January 1920 (Ex. D) the defendants sent an order to the plaintiff asking him to send 150 bags of rice at Rs. 3-2-0 per bag. They repeated the same order by Ex. 3 on 23 January 1920. Ex. D was replied to by Ex. F and F-1, on 23 January 1920. On 24 January 1920 the defendants addressed Ex E to the plaintiff acknowledging receipt of Ex. F-1 and asking him to send one waggon of 150 to 160 bags of white kar rice and semba rice. This was followed by Exs. G dated 25 January and G-1 dated 26 January. Ex, H on the 26 January definitely stated that the bags to be sent should be 160. Meanwhile the plaintiff wrote Ex. 4 on the 26 January and on the 31st January he wrote Ex. J in which he mentioned that 100 bags have been sent. The defendants wrote Ex. 5 on the 1 February and on the 2 February, they wrote Ex. K admitting receipt of Ex. J and also of another letter containing the railway receipt for the 100 bags and asking that further 50 bags of white kar rice should be sent. The plaintiff meanwhile wrote Ex. M (registered letter) on the 2 February, in which he enclosed a railway receipt for another 100 bags and an invoice for the total 200. The invoice is Ex. T. It is for 70 bags of white kar rice at Rs. 2-15-0, 34 bags of the same at Rs. 3-1-0 and 96 bags of semba at Rs. 2-14-0. The defendants wrote Ex. L on the 3 February acknowledging receipt of Ex. M and say further "we shall check invoice and intimate to you. We shall also send money." The defendants do not object in this letter that, whereas they ordered only 150 or 160 bags, 200 bags have been sent. Ex. 6 by the defendants dated 9-2-20 says that the first 100 bags are in a damaged condition and then says: We do not know what the nature of the 100 bags which we expect would be. If they be also of this kind we cannot accept and if any delay be made the goods would be much damaged. You should at once come and take charge.

(2.) In this letter also there is no complaint that an additional hundred was sent instead of an additional 50 or 60 only. On the other hand, the defendants signify their intention to accept those goods subject to their being of the proper kind. The same idea is repeated in Ex. 7 dated the 10 February. Exs. 8 and 9 dated the 11 and 12 February also raise no objection to the number of bags sent. Both the lower Courts have found against the defendants and in favour of the plaintiff that the goods were of the description and quality ordered by the defendants: (para, 10 of the lower appellate Court's judgment.)

(3.) In para. 4, the Subordinate Judge also says: the defendant did not refuse to accept the goods on the ground that more bags than that the defendants wanted were sent by the plaintiff