1. This is an appeal by the B.B. & C.I. Railway Company from the decree of the lower appellate Court granting the plaintiffs' claim for damages. It appears that two consignments of cloth were despatched from Baroda for delivery at Cawnpore. Both the consignor and the consignee were the same person, the Siyaji Mills Co., Ltd. The Siyaji Mills Co. have got managing agents, Seth Chumman Lal Motilal whose proprietor is Chumman Lal. The suit was instituted by the Siyaji Mills Co. Ltd., but the plaint was actually signed and verified by one Jivanram Motiram holding a special and general power-of-attorney from the proprietor Chumman Lal. Various defences were raised on behalf of the Company denying its liability. Both the Courts below have decided all the pleas raised by the defendant against the latter and have decreed the claim.
2. The first point is urged is that the plaint was not properly signed inasmuch as Chumman Lal had no authority to delegate his power to Jivanram, his agent. It is not disputed before us that Chumman Lal, as proprietor of the firm and managing agents, has authority to institute suits on behalf of the Siyaji Mills Company, and has power to sign and verify the plaint. The contention is that he had no power to delegate this authority to Jivanram Motiram.
3. But any irregularity in the signature or verification is a mere defect of procedure and cannot be fatal in second appeal when the merits of the case have not been affected. The best that can happen would be to call upon the plaintiff to get the plaint properly signed again and verified. Under Section 99, Civil P.C., the appellate Court cannot take such a small irregularity into account when it did not affect the merits or the jurisdiction. We may refer to the case of Basdeo v. John Smidt  22 All. 56, which has been followed by this Court in numerous cases. This case is also authority for the proposition that when a suit is instituted by a proper agent with the knowledge and by the authority of the plaintiff named therein it is unimportant how the plaint was actually filed or signed. Furthermore, in this case Chumman Lal had executed a special power-of-attorney authorizing Jivanram Motiram to file this particular suit. In our opinion he had perfect power to do so and there was no defect in the institution.
4. The next point urged is that the Cawnpore Court had no jurisdiction to entertain the suit. This plea, in our opinion, has no force inasmuch as part of the cause of action arose at Cawnpore when it was stipulated that the goods should be delivered there.
5. The next contention is that the consignor had no locus standi to maintain the suit when the railway receipt had been endorsed in favour of a different person. Reliance is placed on the ruling of this Court in the case of Firm Peare Lal-Gopi Nath v. East Indian Ry. Co. A.I.R. 1924 All. 574, which followed a case of the Bombay High Court, Dolatram Dwarkadas v. B.B. and C.I. Ry., Co.  39 Bom. 659. All that was held in these two cases was that the endorsee to a railway receipt had sufficient interest in the goods covered by it to maintain an action for damages. These cases are not authority for the proposition that as soon as the goods are despatched or the Railway receipt is endorsed to another person, a consignor loses all interest and ceases to have any right to enforce the contract which he himself entered into with the Railway Company. As a matter of fact, the privity of contract was between the consignor and the Railway Company and it is the consignor who is in the first place entitled to maintain a claim for damages. The mere fact that Courts have held that a consignee also has sufficient interest in maintaining the suit does not imply that the consignor loses all such interest. There is no fear that the Railway Company would be sued twice over. If a subsequent suit is ever brought it is always open to the Railway Company to ask the Court to implead the consignor who has obtained the decree. A similar procedure can be followed even in the first suit. We, therefore, think that this contention also has no force.
6. The next argument is that it was the duty of the consignee to pack the goods in waterproof cloth so as to prevent their being damaged by rain. The finding of the lower appellate Court that the goods were damaged on account of leaky roof of the wagon or on account of their having been left out in the rains, is also challenged as being defective. Both the Courts below have distinctly found that the damage to the goods was caused not by any insufficient packing, but through the negligence of the Railway Company. This finding, so far as it is a finding of fact is binding on this Court in second appeal, and it is not necessary for us to examine the reasons given by the Courts below for arriving at the finding. The learned vakil for the appellants has argued that it was the duty of the consignor to have these goods packed in waterproof cloth, otherwise they were defectively packed. We are unable to hold that is the necessary conclusion from the stipulation that the Railway Company can demand that the goods should be despatched under Risk Note Form A when they are 'in bad condition or so defectly packed as to be liable to damage, leakage or wastage in transit. Any rules of guidance which the Railway Association might have framed for their own staff and servants cannot take away the rights of consignors to send their goods at the railway risk when there is in the eye of the law no defective packing. We are unable to hold that for want of waterproof sheets there was any defective packing specially when it was understood that these goods were to be sent in a closed wagon and not in an open truck. If the Railway Company's servants thought that the packing of the goods had been defective, it was their duty not to accept the consignment at the railway risk.
7. This view also repels the contention that there is no definite finding on the question of fraud which had been raised by the Railway, Company. The Company's case was that the Station Master had been assured by the Secretary of the plaintiff's firm that the bales had actually been packed in waterproof cloth and it was on that misrepresentation that he accepted the goods at the railway risk. Neither of the Courts below has accepted this statement as correct. Judging from the way in which they have rejected the oral evidence tendered on behalf of the Company, one may reasonably infer that this statement has been definitely disbelieved. All that the Courts have assumed to have happened was that the goods had been sufficiently and properly packed. As pointed out by the Courts below that is a question of opinion on which the consignor and the railway staff may entertain different opinions. At any rate, when we have held that the defendant Company could not demand that the goods must of necessity be packed in waterproof cloth it would be difficult to hold that there was any fraud which vitiated the contract.
8. The last point urged is that the finding as regards the damage is not sound. That is a pure question of fact and we are unable to interfere with the finding. It is too much to suggest that more damage was caused during the few days that lapsed after the goods had arrived at Cawnpore and delivery had been refused by the consignee.
9. We accordingly dismiss this appeal under Order 41. Rule 11, Civil P.C.