JOSEPH MAYR Vs. PHANI BHUSAN GHOSE

JUDGEMENT

(1.) This is an appeal from a decision of Lort-Williams J., delivered on 29 May 1936, wherein he gave judgment for the plaintiff for Rs. 4000 and costs and made a declaration that the plaintiff was entitled to reject a boiler with accessaries. The plaintiff, the present respondent, carries on business as an ink and sealing-wax maker under the name of the Bengal Industrial Company at Cossipore, a few miles out of Calcutta. The defendant, a German gentleman, for some years had carried on business in Calcutta as a manufacturer's agent and an import- merchant dealing mainly in papers, stationery and machinery for making paper. The parties for some years previous to 1932 had business dealings with each other. In 1932, the plaintiff wished to start the manufacture of carbon paper and with that object in view, he consulted the defendant from time to time, and the defendant assisted him with advice, and also procured same formulae for the preparation of carbon-paper. In 1932, the plaintiff bought through the defendant a machine for winding and cutting paper and also a steam-kettle for preparing the ink to be used on the machine for the purpose of making carbon-paper. In the process of making carbon-paper, the paper itself is wound from reels through a trough of ink and then on to another reel. Some of the rollers over which the paper passes are heated in order to make the paper more receptive to the ink and more retentive of the ink afterwards. Apparently, the idea originally was to warm the rollers with gas flames. It does not appear that that procedure was ever adopted on a manufacturing scale, and some time in 1933 the plaintiff discussed the matter with the defendant and was advised by him that the better way would be to heat the rollers, with steam. Steam is also used for heating the steam-kettle in which the ink is prepared. Eventually an order was placed by the plaintiff with the defendant for a steam- boiler. At a later stage, the plaintiff contended that the winding machine, the steam-kettle and the boiler were all unsuitable and claimed the right to reject the boiler, and also damages in respect of the failure of the machine and the steam-kettle. The learned Judge has found that the machine and the steam-kettle were in conformity with the contract; but that the boiler did not conform to the contract. We are therefore only concerned in this appeal with the question of the boiler. The boiler itself was ordered by the plaintiff from the defendant on an order form of the defendant on 23 June 1933. It is described in the order form as: (One) Low pressure steam and hot water boiler "Perfekt" No. 2, as per enclosed prospectus, but of two qm. heating surface, 600 mm. diameter height of shell 1,520 mm. and total height about 1,700 mm. with fittings and mountings consisting of: Various other accessories. Terms of delivery : in one lot as quick as possible. Shipment - to Calcutta through Roehlig and Company. Payment - 60 days after delivery. Making up - in English with Made in Germany inscribed thereon. The total price of the machinery and the accessories 850 R.M. net, including packages F.O.B. Continental Port.

(2.) On the back of the order-form there are terms and conditions only one of which is relevant, now No. 16, which reads: No claims by me or us are to be entertained unless such claim be made in writing within 14 days from the arrival of goods.

(3.) The plaintiff signed that order-form. Along with the order-form, the plaintiff received a little pamphlet printed in German with sketches showing the outline of the boiler and also a diagram indicating the internal construction of it. That document in German was translated and sent to the plaintiff before the contract was made. I need only refer to two portions of that pamphlet. The translation of the first portion reads as follows: The execution of our boiler system complies with its designation as a boiler of quality. Fire box and boiler body are made of Siemens - Martin Ingot iron thoroughly welded. The great strength and elasticity of this material guarantee safe working and a long life of the machine. Every boiler is tested under a water pressure of 6 Atm. The outside casting of the fire box and all the heavy armatures are made of cast iron. For the delicate armatures we use only the very best material in heavier execution. ....As a safety arrangement, the boiler possesses a device which does not allow the maximum steam pressure to expand to more than 0 5 Atm. The usual control, armatures, water gauge with testing tape, manometer, safety valve and different closing apparatus serve to control the working of the boiler. With this equipment a boiler of any size can be mounted even in occupied rooms. The plant does not need to come under the supervision o? the board of control of steam-boilers.