SHRIRAM VITHURAM Vs. TRIMBAK AMOLAKCHAND

JUDGEMENT

(1.) On April 20, 1921, defendant No. 1 entered into a contract at Jalgaon with the plaintiff by which he sold 440 tins of groundnut oil at Rs. 7-4-0 per tin deliverable at Salem by the agent of the defendant. The terms of payment were that Rs. 7-1- 0 were to be paid to the defendant's agent as Salem, less Rs. 500 already paid by the defendant to that agent, and that the remaining 3 annas plus Rs. 500 were to be paid to the defendant at Jalgaon, This contract was an oral one, but on the same day the defendant handed to the plaintiff a delivery order, Exhibit 15, on the defendant's agent at Salem. In fact the goods were not in the custody of the agent on that date, as they had already been delivered by him to the railway company for transit to Jalgaon. This was in accordance with his instructions, and it is not suggested that he committed any breach of duty to his own principal in so doing. On the other hand neither party knew at the date of the contract that the goods had in fact been so delivered. The importance of the delivery to the railway is that at that date waggons were difficult to obtain, and consequently oil in transit on the railway had a far higher value than oil at Salem.

(2.) On April 22 the plaintiff heard by wire from Salem that the goods were on rail, and he thereupon required the defendant to hand over the railway receipts, and expressed his willingness to pay the purchase price. He followed this up by the notice of that date, Exhibit 16, but the defendant refused to hand over the railway receipts or the goods, and on the other hand when the goods eventually arrived at Jalgaon in July he sold them at a large profit.

(3.) Both the Courts below have held in favour of the plaintiff on the ground that the property in the goods passed to the plaintiff, that there was a wrongful conversion, and that the damages should be assessed not on the date of conversion or on the date of the breach of contract, but on the date when the goods arrived at Jalgaon.