AI Structured Summary
Not yet generated for this judgment
Judgment
Chhatpar, J.—The only point involved and argued by the learned advocates in this appeal relates to the performance of a contract entered into between the parties and the consequent question of damages. The Plaintiff-Appellant had agreed to sell to the Respondent-Defendant 41 chests of tea of lot No. 1161, each chest weighing 80 lbs. The goods tendered were 41 chests of the lot No. 1161, but each chest did not contain 80 lbs. but 76 lbs. There was no other dispute about the quality of goods, the date of delivery or any other matter relating to the performance of the contract. The simple question therefore is whether the description given in the contract that each chest should contain 80 lbs. of tea was a condition, the breach of which entitled the buyer to reject the goods or was simply a warranty which did not entitled the buyer to reject the goods, but only claim damages if any. The learned District Judge of the lower appellate Court held that the words that each chest should contain 80 lbs. of tea were part of the description of the goods and amounted to a condition essential to the main purpose of the contract, the breach of which gave rise to a right to treat the contract as repudiated by the buyer. An attempt was made in the lower Courts by the Plaintiff to show that by the custom of trade the weight of the contents of the chests was not a stipulation essential to the main purpose of the contract and that merchants were in the habit of accepting delivery of similar goods containing weight different from that agreed in the contract. The learned District Judge''s finding on this point was against the Plaintiff. He held that this usage was not proved. He went into the evidence on the point and disbelived the witnesses adduced on behalf of the Plaintiff. This is a finding of fact under the circumstances, which is binding upon me in second appeal apart from the question whether it would be open at all to the Plaintiff to set up such a usage in contravention of the specific terms of the contract. So the only question to be considered is whether there was breach of the contract on the part of the Plaintiff by offering delivery of the chests of tea not containing the quantity stipulated in the contract. The learned District Judge came to the conclusion that there was such breach and therefore he dismissed the suit.
Mr. A.R. Baxi the learned advocate for the Appellant-Plaintiff contends that the question whether a description of goods amounts to a condition or a warranty depends upon the fact whether the goods tendered are capable of being identified with the goods bargained. He argues that such goods come from Calcutta ordered by some other merchant in lots which bear particular numbers. The local dealers enter into contracts for purchase and sale of such goods relying mostly upon the lot; numbers. In the present, case, the lot number is the same but there is only a difference in packing. He contends that the difference in packing under the circumstances does not matter. But there appears to be clear authority to the contrary that a sale by description does not only mean a particular class or kind of goods but it also includes any statement which may be essential to the identity of the goods as contracted for, e.g. as to their quality or fitness, place of origin or of shipment, time of despatch or delivery, mode of packing etc. (See in this connection Halsbury''s Laws of England (Hailsham Edition), Volume 29, page 59, Note (a). As an illustration that a mode of packing also forms part of the description, I may refer to the case of - Moore and Co., v. Landauer and Co. (1921) 2 KB 519 (A), where 3100 cases of Australian canned fruits represented to be packed thirty tins to a case were sold and it was found on delivery that part of the cases contained thirty and the rest twenty-four tins to a case. Though there was no difference in price, it was held that this formed part of the description and the buyer was entitled to reject the whole. I may also refer to the case of - Makin v. London, Rice Mill Co. (1869) 20 L.T. 705 (B), where a shipment of Siam rice in single bags was held liable to rejection, where the contract was for Siam rice packed in double bags, which was more saleable and essential for transit. I may yet refer to a third case of - Ballantine and Co. v. Cramp and Bosman (1923) 129 LT 502 (C), where goods (carcases) were to be shipped in two instalments (to be considered as separate contracts) and the average weight was not to exceed 62 lbs.; it was held that each shipment must not exceed the average of 62 lbs. and it was not enough if the average of two shipments did hot exceed 62 lbs. From these authorities, which have been cited in Halsbury''s Laws of England abovementioned and Aggarawala''s Indian Sale of Goods Act (1948 Edition) at pages 189 and 190, it is quite clear that the tender by the Plaintiff of the chests of tea each containing only 76 lbs. as against the provision in the contract of 80 lbs. per chest was not a sufficient performance of the contract being breach of a condition which entitled the buyer to reject the goods. Mr. Baxi has relied upon Chitty''s Contract, pages 768-769, but it lays down the same principles and reference is made to the case of - Moore and Co., v. Landauer and Co. (A), the direct authority on the point, which is also referred to in Pollock and Mulla''s Sale of Goods Act at page 71. I therefore confirm the decree of the lower appellate Court and dismiss this appeal with costs.