1. This is an appeal by the defendants and arises out of a suit for recovery of Rs. 3,578-10-6. from the defendants. The plaintiff had a commission agency shop at Agra in which he carried on the business of purchasing and selling grain and other goods for his constituents. In October 1924, a large quantity of grain purchased by the plaintiff on behalf of the defendants was lying in the godown of the plaintiff. On 6th October 1924, this grain was damaged by an unexpected flood which came to Agra. The river Jumna rose in flood and the godown in which the grain was stored was submerged. Under the orders of the Health Officer a large quantity of grain had to be destroyed. The plaintiff alleged that he was entitled to recover from the defendants the price of the grain which he had to destroy under the order of the Health Officer. The defendants resisted the suit upon various grounds. They pleaded that the plaintiff had not acted with prudence in taking care of the goods bailed to him and that in view of the provisions of Section 214 coupled with Sections 151, 152 and 189, Contract Act, the bailee was responsible for the price of goods which were lost or destroyed from his custody. The standard of diligence required of a bailee under Sections 151, and 152, Contract Act, is that of the average prudent man; and where the bailee has taken the same care of the property entrusted to him as a reasonably careful man may be expected to take of Ms own goods of the same bulk, quality and volume as the goods bailed, he is not responsible for the loss, destruction or deterioration of the thing bailed. No cast-iron standard can be laid down for the measure of the care due from him and the nature and amount of care must vary with the posture of each case. The Courts below have arrived at a definite finding that in view of the peculiar circumstances of this case, the bailee has not been remiss in his obligations to his principal and has not been negligent in the care of the goods bailed to him. The position of the bailee in this case was one of supereme difficulty. The appearance of a flood was unknown and unprecendented in the annals of Agra. The factors and godown keepers had no past experience to guide them. It could not be predicted with certainty that the river would rise in flood. No forecast could be made of the time of its advent. The plaintiff may well have thought that if the river rose in flood it may not reach the area where his godown stood. The removal of the goods to some other locality was perhaps out of the question. For who could say that the flood would come so far and no farther? We are clearly of opinion that the plaintiff was not guilty of negligence in the discharge of his statutory liability to his principals with reference to the goods entrusted to him, that he was not responsible for the loss, destruction or deterioration of the thing bailed and that he was justified in claiming the price thereof from the defendants.
2. In an emergency the bailee has the same power to act as the agent under S., 189, Contract Act, and in cases of difficulty he is under the same duty as has been cast upon the agent under Section 214 of the Act which makes it incumbent on the agent to use reasonable diligence in communicating with. his principal and in seeking to obtain his instructions. The finding of the lower appellate Court is that he fulfilled and carried out this duty. Whether the bailee used all reasonable diligence is in the main a question of fact. From the facts found by the lower appellate Court, the finding followed as a legitimate conclusion. The finding does not appear to us to be open to challenge upon any legitimate ground and we must accept it. Out of the goods cast away, 80 bags of laha and 7 bags of arhar appear to have been recovered by the plaintiff immediately after the flood. He had however given no intimation of this fact to the defendants. The finding of the Court below is that when they were found, the grain contained in these bags was in an unsaleable condition. The Court of first instance directed that the loss of these bags which had been damaged by the floods should be shared half and half by the parties. The defendants in their appeal to the lower apellate Court raised a point contesting the correctness of this order, but the plea was apparently not pressed before that Court. We are of opinion under the circumstances the defendants should not be permitted to raise any plea with reference to 80 bags of laha and 7 bags of arhar before the Court. The de endants had deposited with the plaintiff 594 maunds of laha. Out of these, 37 have not been accounted for. The lower appellate Court came to the conclusion that this result might have been due to natural causes and the deficiency may well have been caused by the process of either shrinkage or dryage. The Court below observes as follows:
It is a well-known fact of which the Court must take judicial notice that grain when freshly harvested is heavier in weight than after six months' storage in a godown because the grain dries and the natural moisture is expelled. In the present case 37 maunds' shrinkage out of 594 maunds amounts to six per cent and this is not excessive.
3. There is nothing on the record to indicate whether the 594 maunds of laha deposited with the plaintiff are freshly hervested grain. We are further of opinion that under Section 57, Evidence Act, the learned District Judge was not justified in taking judicial notice of the fact that grain was liable to lose weight from drying up or shrinkage. It follows that the plaintiff has failed to account for 37 maunds of laha. It has been found by the learned Munsif that laha sold at the rate of 61/1 seers per rupee. The learned Counsel for the respondent takes no exception to this rate. The value of 37 maunds of laha at the aforesaid rate comes to Rs. 219. To this, we add Rs. 36 for interest for about three years. The total comes to Rs. 225. The defendants are therefore entitled to a deduction of this amount from the amount decreed by the lower appellate Court. The lower appellate Court had modified the decree of the trial court by allowing a deduction of Rs. 22 from Rs. 1,121-3-6. To this sum of Rs. 22 should be added a further sum of Rs. 255. The result is that we allow the appeal in part and modify the decrees of the Courts below to the extent indicated above. The parties must receive and pay costs in proportion to their success and' failure throughout.