1. The plaintiff sues the defendant for damages in respect of a contract for the sale of a motor car.
2. The contract is for sale by the defendant to the plaintiff for Rs. 4,000 of which Rs. 1000 had already been paid and the balance was payable in monthly instalments of Rs. 250 on the 5th of May, and of each succeeding month.
3. But the contract of sale contained certain very special conditions. These were:-that the buyer will pay instalments punctually ; that after delivery of the car the seller had a right to enter upon the premises where the car was and inspect the car; that the purchaser was not to dispose of the car before the full price was paid; that the purchaser was to insure the car and assign the policy to the seller ; that in default of observance by the buyer of any of the conditions aforesaid the seller had the right to determine the contract and to seize and take possession of the car.
4. The word 'hire' is not used in the contract and it is not a hire purchase agreement. At the hearing I expressed the opinion that the contract was not executory and that under Section 78 of the Indian Contract Act property in the car passed when the car was delivered. The plaintiff was unfortunately not represented, and Mr. Rangnekar for the defendant being ready to accept this view the following issues were raised:
(1) Whether the car was sold under an express warranty that the car was a new oar and in perfect working order?
(2) Whether there was an implied warranty that the oar was serviceable as a motor cat?
(3) Whether there was a breach of warranty and what damages is the plaintiff entitled for such breach?
(4) What is the amount of brokerage due to the plaintiff in respect of the sale of a car to Mr. Bobbins?
(6) Whether the defendant was entitled to refuse to return the oar after it had been given to him for repairs on September 2, 1922?
(6) Whether the defendant is entitled to his counter-claim for repairs atid balace of price?
5. On further consideration, however, I have come to the conclusion that the view expressed by Maclean C. J. in Brij Coomaree v. Salamander Fire Insurance Co. I.L.R. (1905) Cal. 816 is unsound. If Section 78 were construed as laying down an inflexible rule as to the passing of property not only would there be a serious limitation on the freedom of contract but there would also be an inconsistency with other sections of the Indian Contract Act, e.g., Section 7. No doubt it is curious that Section 78 should not be expressed as subject to a contrary intention. But the Act is a notoriously badly drafted Act and it does not purport to be exhaustive: The Irrawaddy Flotilla Co. v. Bugwandas I.L.R. (1891) Cal. 620 The intention of the parties as expressed in the conditions cited was that the property in the car should not pass until full price had been paid. That is the construction put upon the contract in the pleadings and that intention prevails in spite of Section 78 of the Indian Contract Act.
6. In this view the only amendment necessary to the issues is to add the words or damages to issue No. 6. Mr. Rangnekar does not claim to call further evidence on this amended issue.
7. The plaint is so badly drafted that it was difficult to frame appropriate issues, The plaint claims damages for loss of earnings consequent on the defendant's refusal to return the car after it had been given for repairs on September 2, This is absurd as the defendant had a lien at least for his bill for repairs and all the instalments then due had not been paid. Plaintiff's main grievance as set forth in para 1 of the plaint seemed to be the inferiority of the car and so I raised issues for damages for breach of warranty express and implied. An amendment of the plaint was not insisted upon to save expense.
8. The undisputed facts are that the plaintiff entered into negotiations for the purchase of the car on April 5, and deposited Rs. 1000 that day, signed the agreement to take delivery of the car on April 27, and paid the insurance money and Rs. 250 for the first instalment on May 11. There was no other payment of instalments except Rs 150 on July 24. The plaintiff, however, was entitled to credit for brokerage for selling another car of the plaintiff on July 15. The car was frequently sent to defendant for repairs. It was last so sent on September 2 and as plaintiff had not paid all the instalments the defendant determined the contract by notice in November. The defendant claims in the counter-claim damages for breach of the contract and for the amount of his bill for repairs and on the other hand the plaintiff in this suit claims damages on the ground of inferiority.
9. To take the plaintiff's case first. His plaint avers that there was an express warranty that the car was a new car and in perfect working order. There is no such warranty in the written agreement. But evidence of such an express collateral warranty would be admissible under Section 92, proviso (2), Indian Evidence Act. The plaintiff has given no evidence of it. All he says is that defendant called it a new car but he was not deceived by this for he at once contradicted him and said it was not a new car.
10. I think, however, the contract of sale was subject to an implied warranty that the oar was serviceable, i. e., reasonably fit for the purpose for which it was bought. Mr. Rangnekar contends there is no such presumption where the buyer had an opportunity of inspecting the goods. The common law rule depended upon whether the buyer relied on his own judgment or the seller's Jones v. Just (1868) L.R. 3 Q.B. 197; but that distinction is not made in the Indian Contract Act. Pollock and Mulla suggest that the words 'have been ordered' in Section 114 imply that the buyer is relying on the seller's judgment. But this is a strained construction of the section and there is no reason why the seller should be excused from performance of his contract because of what may or may not be passing in the buyer's mind. The plaintiff had an opportunity to inspect the car though I do not believe he had a trial drive for if he had he would have driven himself. The distinction between the English cases where the buyer had an opportunity of inspection is not made in the Indian Contract Act, and even in England it only applied to patent defects. The circumstances of the case may raise an implication that the goods were ordered for a particular purpose. See Preist v. Last  2 K.B. 148 A seller of a motor car impliedly contracts to sell a car that is reasonably fit for use as a motor car.
11. As to the condition of the oar I accept the plaintiff's evidence. The plaintiff says that before he had the car a fortnight the engine choked and he had to take it to the works where the engine was opened and decarbonised. There was then carburetter trouble and the car was consuming a gallon of petrol for ten miles. Then there was accident and the damage was repaired by the defendant. The plaintiff says that that was in the middle of May but it was more probably at the end of May or beginning ti June. In June two front springs broke and were replaced by plaintiff but the carburetter troubles continued and in August defendant substituted another carburetter of the same make. This leaked, so the plaintiff took it back to the workshop on September 2 and defendant has now put in another type of carburetter.
12. The defendant admits the carburetter trouble but denies replacing the carburetter in August. He also denies that the engine had to be opened and decarbonised a fortnight after delivery to the plaintiff.
13. But the decarbonising of the engine was mentioned in plaintiff's letter of May 23. Defendant does not impute forgery but denies receipt of the letter. I do not believe his denial and I think that letter important corroboration of the plaintiff's evidence. Moreover the defendant has not called his workshop foreman to deny plaintiff's evidence as to the decarbonising of the engine and the replacing of the carburetter.
14. It is true there was an accident some time in May or more probably in June and the repairs consequent thereon were the subject of defendant's bill for Rs. 294-4-0. This did not affect the engine and was subsequent to the decarbonising of the engine at the end of April or beginning of May.
15. Much is made of the admission in plaintiff's letter of October 9 'The car has not been roughly handled as no complaints have been made in reference to mechanical parts.' But plaintiff is only semi-literate and I do not think he understood what he was writing-for he had complained of a chocked engine and defective carburetter and the front spring collapsed in two months.
16. It is also rather surprising that in spite of his own experience plaintiff should have helped defendant to sell another car. But as plaintiff earned money for himself by so doing it does not follow that he was satisfied With his own bargain.
17. The defendant has produced an invoice showing the price of the car was Rs. 4650 but the car was exported from America in 1920 and the decarbonising of the engine is clear proof that the car had been used and was a second hand car when sold to the plaintiff.
18. Defendant explains the rapid collapse of the tubes and tyres as due to the car having been a long time in his showroom. But the hood was tattered at the time of the contract and the upholstry had deteriorated so much that the springs of the seat protruded a few days after the purchase. I think that defendant was conscious that he had sold a second-hand car and that is why he has made no charge for decarbonising the engine in April and May or replacing the carburetter in August.
19. Plaintiff says the car when sold was worth only Rs. 1500 but this is probably an exaggeration. Considering that the car was second-hand and not serviceable in the condition it was in when given to plaintiff, its value could scarcely have been more than half the invoice price, i.e., Rs. 2325. The present value of Rs. 4,000 on the instalment system would be about Rs. 3926. Damages for breach of warranty would therefore be Rs. 1600.
20. I do not think that plaintiff is debarred from claiming this by the rule in Braithwaite v. Foreign Hardwood Co.  2 K.B. 543 for he never repudiated the contract. If property had passed and defendant had sued him for balance of price he would have been entitled to plead breach of warranty in reduction of the price.
21. On the other hand, defendant was entitled to determine the contract in November for plaintiff was in default of instalments At that time seven instalments, i.e., Rs. 1,700 were due and only Rs. 250 plus Rs. 150 plus a sum for brokerage had been paid. There is a dispute as to the amount of brokerage. Plaintiff says it was Rs. 500, Defendant says it was Rs. 250 at once and Rs. 250 later on full price of the oar being paid by the purchaser. I take the brokerage of ten per cent, which would make it at Rs. 450 so the total amount paid was Rs. 850. Thus more than two instalments were in arrears in November and the plaintiff had committed breach of his contract.
22. As to damages the car if sold now would letch little less than its market value when sold. It has had some extra wear and tear but on the other hand the upholstry has been repaired and anew carburetter fitted. Its present value I would assess at Rs. 2,000. The defendant's damages are therefore Rs. 3,925 minus Rs 2000 which equals Rs. 1,925. Of this he has already received Rs. 850 leaving a balance due to him of Rs. 1125. There are special stipulations in the contract as to damages which I neglect as unreasonable.
23. As to defendant's bill for repairs I disallow Rs. 250 which plaintiff has paid for insurance ; also Rs. 294 4-0 covered by insurance, also Rs. 110 plus Rs. 45 for a hood and upholstery Defendant admits Rs. 110 is not chargeable as there was a separate oral agreement to supply a new hood. Plaintiff says this agreement extended to the upholstry also and I believe him. There is, therefore, due to the defendant a bill for repairs of Rs. 282. I, therefore, allow Rs. 282 plus Rs. 1125, i.e., Rs, 1407.
24. I, therefore, find the issues (1) in the negative; (2) in the affirmative ; (3) in the affirmative Rs. 1,600; (4) Rs. 450 ; (5) in the affirmative; (6) in the affirmative as to repairs to the extent of Rs. 282, and as to damages to the extent of Rs, 1,125.
25. There will, therefore, be a decree for the plaintiff for Rs. 1,600, and for the defendant for Rs. 1,467 on the counter-claim.
26. Under the circumstances I make no order as to costs.