1. This is a plaintiff's appeal arising out of a suit in which the plaintiff sued the defendant for a sum of Rupees 6127-8-0 alleged to be due to the plaintiff from the defendant in respect of the price of seventy-five bales of gunny bags. On 3rd March 1937 the plaintiff contracted to sell one hundred and fifty bales of gunny bags to the defendant. Seventy-five bales fell to be delivered on 15th Chait Sudi and seventy-five on 15th Baisakh Sudi, i.e. on 25th May 1937. The seventy-five bales deliverable on 15th Chait Sudi were duly delivered and paid for. The seventy-five bales deliverable on 25th May 1937 however were not, according to the defendant, delivered to him. The defendant therefore repudiated the plaintiff's claim for the price of these bales. The plaintiff maintained that he in fact did deliver seventy.five bales in Baisakh Sudi to the defendant. Para. 6 of his plaint is as follows:
That consequent upon the delivery of the goods to him the defendant became liable to pay to the plaintiff the price of the goods within ten days thereof, that is up to 4th June 1937. The plaintiff has paid the price of the goods to Messrs. Jwala. Parasad Panna Lal on 10th Jeth Badi 1994, corresponding to 4th June 1937.
2. The facts of the case are not really in dispute. On the date of delivery of the bales in suit the defendant through his servant intimated his desire to have a delivery order rather than to accept delivery of seventy-five bales from the plaintiff's godown. The plaintiff accordingly handed to the defendant's servant a delivery order on Messrs. Jwala Prasad Pannalal. According to the terms of this delivery order Jwala Prasad Pannalal were ordered to hand over seventy-five bales of gunny bags to the defendant. When the delivery order was presented to Jwala Prasad Pannalal however that firm did not in fact have the goods in stock. This is clear from the plaintiff's witness, Panna Lal, a partner of the firm. He states definitely in the course of his examination-in-chief that he had no goods with him. Instead of delivering the seventy-five bales of gunny bags to the defendant, Jwala Prasad Pannalal, handed to him certain parchas addressed to other firms. Apparently the defendant was unable to secure from these latter firms delivery of the goods and it appears that he accepted from one firm after another parches, that is orders for the delivery of the goods, instead of the goods themselves. By 4th June 1937, when payment according to the plaintiff was due, the seventy-five bales had not in fact been delivered to the defendant nor have they yet been delivered to the defendant. The plaintiff however avers that relying upon the fact that he had received no intimation from the defendant that the seventy-five bales of gunny bags had not been delivered from Jwala Prasad Pannalal he paid Jwala Prasad Pannalal the price of these seventy-five bales. In these circumstances the plaintiff claims that he is entitled to recover the cost of the seventy-five bales from the defendant.
3. The defendant pleaded that inasmuch as he had not in fact received the goods which the plaintiff undertook to deliver he is not liable for the price. The learned Judge in the trial Court has held that the defendant did not receive the goods which he contracted to purchase from the plaintiff and that the plaintiff had failed to prove any custom of trade under which he was entitled to claim the price of the goods from the defendant despite the non-delivery of the goods. In the result he dismissed the suit. In appeal it was argued in the first place that there had been in law delivery of the 75 bales of gunny bags to the defendant. Reliance was placed upon Section 33, Sale of Goods Act. Section 33 is in the following terms:
Delivery of goods sold may be made by doing anything which the parties agree shall be treated as delivery or which has the effect of putting the goods in the possession of the buyer of any person authorized to hold them on his behalf.
4. Now in the present instance there was no agreement between the plaintiff and the defendant that the passing of the parcha or delivery order was to effect delivery of the goods purchased. In fact the understanding was that the goods which had been purchased were in the possession of Jwala Prasad Pannalal and it was understood further that on the presentation of the delivery order that firm would deliver the goods. In this connexion reference may be made to Sub-section (3) of Section 36, Sale of Goods Act. This sub-section is as follows:
Where the goods at the time of sale are in the possession of a third person, there is no delivery by seller to buyer unless and until such third person acknowledges to the buyer that he holds the goods on his behalf.
5. In the present case there was neither any agreement between the plaintiff and the defendant that the passing of the delivery order should operate as delivery of the goods nor was there any acknowledgment that Jwala Prasad Pannalal held the goods on behalf of the defendant. In these circumstances the contention of the plaintiff that the goods were in fact delivered to the defendant must fail. It was further argued for the plaintiff that the defendant was estopped by his conduct from pleading that there had been no delivery of the goods to him. It was urged that it was clearly the duty of the defendant in the circumstances to have informed the plaintiff that the goods purchased had not been delivered. The failure of the defendant to perform this duty, it was argued, misled the plaintiff, with the result that he paid the price of the 75 bales of gunny bags to Jwala Prasad Pannalal. The position of the plaintiff had therefore it was maintained, changed and the defendant was estopped from maintaining that the goods which he had purchased had not in fact been delivered. No authority was cited for this proposition. There is, so far as we know, no authority for the proposition that a purchaser who has obtained a delivery order is in law bound to inform the seller of the goods which he has purchased that he has failed to obtain delivery. Furthermore, it is to be observed that as a matter of business it was clearly the duty of the plaintiff to ascertain from Jwala Prasad Pannalal if in fact the goods had been delivered to the plaintiff's order before the plaintiff paid Jwala Prasad Pannalal for the goods. We find difficulty in understanding how it came about that the plaintiff paid Jwala Prasad Pannalal the price of the 75 bales of gunny bags in complete ignorance it appears of the fact that firm had not delivered the bales to the defendant.
6. It was contended however for the plaintiff that there was a custom of the market in Cawnpore under which the liability of the defendant to pay the price of the bales to the plaintiff could not be disputed. The custom which was founded on has nowhere been clearly and specifically stated either in the plaint or in the evidence of the witnesses. Indeed so far as the plaint is concerned there is absolutely no reference at all to the question of a custom of the market. The plaintiff's leading witness states in his examination-in-chief merely that there is a custom of the bazaar in regard to such deliveries of bales of gunny bags. The evidence of Panna Lal of the firm Jwala Prasad Panna Lal is no more satisfactory. Indeed in his examination-in-chief this important witness makes no reference at all to the question of custom. In cross-examination that he says upon the question of custom is somewhat vague and indefinite. At one point he deposed that 'the man who issues parchas is only liable to arrange for delivery within two days;' and further that 'if the person receiving sleeps over the matter for two months the man receiving the parcha is not liable.' But later on in his deposition he states that 'the purchaser can take delivery within one month of the due date.' Another of the plaintiff's witnesses who deposed to the question of custom is Bhana Ram. He deposed that
the vendor gives a parcha on others. If the purchaser accepts the parcha and does not get the goods he can come back and claim the goods even after a month.
7. In cross-examination he stated:
If the man who received the parcha does not take delivery within ten days or does not complain that he did not receive delivery he will be bound to pay the price even if he did not receive the goods.
8. The witness further goes on to state however that he never had any occasion 'to see an instance in which the price had to be paid without the delivery having been taken.' Now the question of custom upon which reliance appears to have been placed by the plaintiff is a custom under which if the vendee does not complain within ten days he must pay the price of the goods. It is somewhat curious that it is only in the cross-examination of the evidence of Bhana Ram that there is any reference to any such custom, and it is to be observed as already noted that this witness was unable to say that he knew of any instance when delivery was not effected and the vendee was held liable for the price. The evidence of the plaintiff's other two witnesses, Govind Prasad and Ram Sarup is equally unsatisfactory and we consider it unnecessary to refer to their testimony in detail. If a custom of trade is to be founded upon it must be specifically and definitely pleaded and it must be clearly and unambiguously established by the evidence. In the present case the averment of custom so far as one can gather it from the statements of the witnesses is vague and indefinite and lacking in specification. The evidence of the witnesses in support of the averment is equally vague and unsatisfactory and in some instances self-contradictory. Upon the whole matter, we are satisfied that the plaintiff has failed to prove any custom of trade under which the defendant can be made liable for the goods which he purchased but which were not in fact delivered to him. The decision of the learned Civil Judge in our judgment is sound. In the result the appeal is dismissed with costs.