Amberson Marten, Kt., C.J.
1. [On the question of interest his Lordship said:] Lastly, I come to the points urged in the plaintiff's appeal, viz., the question of interest and costs. On my above findings it follows that there was no conduct here by the plaintiff, apart possibly from his unhappy pleadings, on which one could fairly hold that he should be deprived of interest or of costs. On the other hand, speaking for myself, I am not prepared on the materials before me in the present case to accept the learned Advocate General's argument that this being a mercantile transaction we i must take judicial notice of the alleged fact that in Bombay goods sold and delivered invariably carry interest, at any rate as between merchants. For one thing mercantile usage is not pleaded, much less proved. In any case, these parties have been carrying on business in four different places; a part of the goods were delivered in Calcutta; and there is no mention of interest in their books. As regards the authorities which the learned counsel cited, viz., Doolubdasa Pettamberdass v. Ramloll Thackoorsoydass (1850) 5 M. I. A. 109 Juggornohun Ohose v. Manichchund (1859) 7 M. I. A. 263, and Juggomohun Ghose v. Kaisreechund (1862) 9 M. I. A. 256, they do not lay down any such established usage of which we should take judicial notice. The case at its highest is contained in Doolubdass v. Ramloll. Further, we must bear in mind that whatever may have been held by the Privy Council to be proved in the Bombay case, yet the question of interest was held not to have been proved in the Calcutta case. No authority for the last forty years has been produced to us in support of this proposition. Individual Judges of this Court may have had different experience, but speaking for myself it was not my practice when on the Original Side to give interest as a matter of course in suits for the price of goods sold and delivered.
2. Therefore, in the present case, I would reject that claim so far as it is based on alleged mercantile usage. This is irrespective of what may be proved in some other case when proper evidence is before us as to what is the alleged custom in Bombay in this respect as regards different classes of merchants. On the other hand, the Interest Act applies here. In the letter of December 9 (p. 141 of the paper book there is a clear demand for interest as there is also in the solicitors' letter of January 14, 1928.
3. I would, accordingly, allow the appeal in this respect, and award interest on the sum in question as from December 9, 1927. I would give interest at six per cent. I may note that it appears from the evidence that the defendants had already been paid in due course by the railway company for these goods which the plaintiff' had sent. Therefore, there is nothing unfair in debiting the defendants with interest as between them and the plaintiff. It follows also that on the question of costs, there is no adequate reason why the plaintiff should be deprived of his costs, and that accordingly he should be awarded his costs in the Court below.
4. I would, therefore, allow the appeal with costs, and dismiss the cross-objections with costs, and direct that the decree be varied by awarding the plaintiff interest at six per cent, from December 9, 1927, and also his costs of the suit in the Court below.
5. [On the question of interest his Lordship observed:] I respectfully agree with all that the learned Chief Justice has said as to the claim for interest based upon an alleged commercial usage. No such usage was pleaded; no evidence was adduced in support of it; and speaking for myself I would not be prepared to hold in a claim for the price of goods sold and delivered that the plaintiff' was entitled to interest based upon an alleged commercial usage, unless satisfactory evidence of that alleged usage was given in regard to the particular class of goods out of which the suit arose. I agree, however, with the learned Chief Justice that the claim to interest based on the provisions of the Interest Act is a permissible claim and should be acceded to.