1. This is a second appeal by the plaintiff whose suit has been dismissed by the' two lower Courts. The suit of the plaintiff was for a sum of Rs. 1,263-1-9 principal plus interest due to the plaintiff on account of the alleged purchase of sugar as commission agent on behalf of the defendant. The plaint set forth in para. 1 of the plaint that he carries on the business of commission agency and purchase and sale of sugar, money lending and hundi business in Bazar Barhaj in Gorakhpur district. The defendant carries on business of purchase and sale of sugar at Indore. The plaint sets forth that there were two previous transactions between the parties and the main transaction in question was on a date corresponding to 1st April 1922, when the plaint sets out that the defendant purchased 61 bags of sugar, the cost of which amounted to Rs. 3,925-6-3 which was debited to the defendant in the plaintiff's account book. This para. 5 of the plaint does not say that the defendant purchased through the plaintiff as a commission agent, and in the previous para. 3 alluding to the earlier transactions it was stated that the' purchase was made from the plaintiff's firm. The defence was that the defendant's gumashta went to the plaintiff's firm in Barhaj to purchase sugar and the plaintiff showed a sample, and 61 bags of sugar were purchased on- 29th March 1922 with this condition that the plaintiff should immediately within three days get the 61 bags of sugar according to sample sieved and that the plaintiff should hand over the' railway receipt to the gumashta of the defendant. It was further alleged that the plaintiff did not get the sugar sieved, nor send the sugar nor give the railway receipt to the gumashta and that the gumashta therefore came back after rescinding the contract for the purchase of the sugar.
2. It was further pleaded in para. 5 that after two weeks the plaintiff sent 40 bags of sugar and in May 1922, the plaintiff sent 21 bags of sugar, that this was contrary to the agreement and that the defendant wrote to the plaintiff that he should not have sent the goods as the contract for the purchase had been rescinded and that the goods were' lying with the defendant and that the plaintiff should take away the goods in whatever way he liked. The defendant kept the goods of the plaintiff as agent of the plaintiff and kept the plaintiff informed of this and eventually on 25th January 1923 and later dates the defendant sold 61 bags of sugar at the market rate for Rs. 3,096-6-3 and, after deducting the railway freight and miscellaneous charges including commission agency, Rs. 90-8-0, the' defendant remitted Rs. 2,738-11-6, the total balance to the plaintiff in 1923. The defendant therefore claimed that no sum was owing from the defendant to the plaintiff. Although the plaintiff did not put forward the case that he acted as a commission agent and although this point does not arise in the issues framed by the Court of first instance, the point was raised in first appeal as to whether the plaintiff was only a commission agent and how does it affect the defendant's right to cancel a contract. The finding of fact of the lower appellate Court was that the contract was made by the defendant with the plaintiff and the plaintiff was to supply the sugar and there was no privity between Ram Baran and the real purchaser of the sugar including Suraj Mai, and the Court concludes:
So Suraj Mai only made a contract with the plaintiff for the purchase of 61 bags of sugar.
3. Suraj Mal was the Gumashta of the defendant. This question has been argued again in second appeal, but we see no reason to set aside the finding of fact of the lower appellate Court. Another question which was argued was whether as a fact the lower Court overlooked the evidence of Suraj Mai. This evidence was taken on commission in Indore and it is alluded to by the first Court but the lower appellate Court has stated that it was not available. learned Counsel therefore laid this evidence before us. The evidence supports the finding of fact of the lower appellate Court that the term of the contract was that the goods were to be sent within a very short time, as Suraj Mai state's that the goods were to be sent within three or four days. This finding had already been arrived at on other evidence by the lower appellate Court and therefore we see no reason why it should be set aside. learned Counsel desired to use this evidence of Suraj Mai to show that the finding of the lower appellate Court was not correct as to whether the plaintiff had acted as a principal or as a commission agent. The evidence of Suraj Mai was that he purchased three or four times from the plaintiff and that the plaintiff agreed that he would send the consignment of sugar in question within three or four days, otherwise the goods would not be accepted. In cross-examination he does say that the sugar was purchased through the plaintiff from the bazar and that the transaction was settled in the bazar and entered in the plaintiff's arhat and that the plaintiff was commission agent in this transaction. We do not consider however that Suraj Mal meant to imply that he made a contract with Ram Baran, the shop-keeper in the bazar, because he does not say so. It is clear that Suraj Mal looked to the plaintiff as a principal in the transaction and hence the plaintiff undertook to send the sugar within three or four days. The finding therefore of the lower appellate Court appears to be in accordance with the evidence and a further consideration of the evidence of Suraj Mai does not afford any reason to set that finding of fact aside. The only remaining point which was argued was the eighth ground of appeal which was:
Because in any case the defendant was not justified in taking delivery or in disposing of the goods in open market if he wanted to repudiate the contract.
4. On this point learned Counsel referred to Chapman v. Morton (1843) 11 M & W 534. This was an action brought by the plaintiffs who were merchants in Dieppe in France to recover from the defendants merchants in Cambridgeshire in England a sum of money, the price of goods sold and delivered by the plaintiffs to the defendant. The bills of lading had been accepted and negotiated before the arrival of the goods and on arrival the defendant complained that the goods did not come up to sample, but the defendant landed the goods and lodged them in the public granary at the port of Lynn, and informed the plaintiffs that the goods lay there at the risk of the plaintiffs and required the plaintiffs to take the goods back. The plaintiffs replied refusing to take the goods back. The defendant eventually wrote that if the plaintiffs did not take the goods back the defendant would dispose of the goods for the best price he could obtain and would apply the proceeds in part satisfaction of a claim which he made for damages. The plaintiffs did not agree to this and replied that they considered the transaction closed, and demanded payment of the price. After the exchange of these letters the defendant advertised the cargo for sale in his own name and sold it to a third party. The case was tried by jury and was taken to the Court of Exchequer on appeal on the ground that there had been a misdirection. It is observed by the Court of appeal on p. 539:
(Per Lord Abinger, C.B.)--If the defendant intended to renounce the contract, he ought to have given the plaintiffs distinct notice at once that he repudiated the goods, and that on such a day he should sell them by such a person, for the benefit of the plaintiffs. The plaintiffs could then have called upon the auctioneer for the proceeds of the sale. Instead of taking this course, the defendant has exposed himself to the imputation of playing fast and loose; declaring in his letters that he will not accept the goods, but at the same time preventing the plaintiffs from dealing with them as theirs. The safest conclusion I think, for the jury to arrive at was that the defendant, having once adopted the goods as his own, had no longer any power to repudiate them, and therefore retained no right of set off against the price.
5. The judgment then proceeded to consider the question of agency in the circumstances of the case and held that there was no agency under those particular circumstances. Another Lord Baron of Exchequer on p. 541 observed : !
(Per Parke, B)--I admit that it was an equivocal act : there might be circumstances under which he might have disposed of the goods as the agent of the vendor,
and the third Baron observed:
(Per Alder son, B.)--The whole case appears to me to be explicable only on the supposition that the defendant meant to take the goods, and to get the proceeds of the sale in reduction of his damages for the alleged breach of warranty.
6. We do not think that any particular doctrine of law contained in this ruling which was in a case of an action of debt for goods sold and delivered, can be usefully applied to the present case. In the present case it is found that time was of the essence of the contract, that the contract was that the sugar was to be despatched within three or four days, that it was not despatched until 15th April and 4th May, the contract having been made more than two weeks previously to 15th April. The plaintiff sent the railway receipts of 15th April by post to defendant to Indore and on its arrival on 20th April 1922, the defendant wrote a letter, which has been shown to us, to the plaintiff. In that letter the lower appellate Court correctly states that the defendant stated that Suraj Mai said that the sugar had not been sent for a long time and so would not be taken and that the defendant would treat the contract as cancelled, and that the defendant would keep the sugar on behalf of the plaintiff to be delivered to anyone whom the plaintiff should desire that it' should be delivered.
7. In the ruling in question the plaintiff had sent a reply stating that he considered the contract closed and that the contract must be carried out and the title of goods had passed to the defendant. In the present case the plaintiff sent no reply and gave no directions as to what should be done with the sugar. In the ruling quoted it was held that the defendant by his action prevented the plaintiff from dealing with the' goods as the plaintiff should desire. But in the present case the defendant wrote to the plaintiff offering to dispose of the goods in any way that the plaintiff desired and the plaintiff admittedly did not give any directions to the defendant. The defendant waited a long time until January 1923, that is, for a period of nine months, and it was only then that the defendant sold the sugar and sent the proceeds to the plaintiff after making the' deductions for railway freight and for arhat expenses. We note' that the defendant in his account does not make any charge on account of the sugar remaining in his godown for nine months. The transactions by the defendant cannot be considered unreasonable. It was not until after three years that the plaintiff brought this suit. In any case the plaintiff has not sued for damage's for the action of the defendant in dealing improperly with his sugar. On the contrary the' plaintiff has brought a suit based on a contract for the sale of the sugar, and the Court below has found that the plaintiff failed to carry out the terms of the contract. The suit cannot now in second appeal be changed round to a suit for damages for the wrongful action of the defendant. We consider therefore that the decree of the lower appellate Court is correct and we dismiss this second appeal with costs.