1. This first appeal has been preferred by the defendant against the judgment and decree of the IV Addl. District Judge, Jabalpur, in Civil Suit No. 33-A of 1958, decided on 4-11-1958, where by a decree for Rs. 12, 524/-/9 has been passed in favour of the plaintiff against the defendant with proportionate costs and interest.
2. The facts which are not disputed at this stage are that Fatehchand Puranmal is a joint family firm carrying on business at Burhar. The three plaintiffs who have brought the suit are the members of the joint Hindu family owning this firm. They sent in the month of November, 1956, to the defendant Radheyshyam who carries on his business in the name and style of 'Shrigopal Ra-meshwardas at Gandhiganj, Jabalpur, 142 bags of linseed and 91 bags of Ramtilla, to be sold in his Adat on instructions being given by the plaintiffs or to be returned to them if so desired. The goods remained unsold up to 1-7-1957. On that date, the plaintiff No. 3 Jankiprasad who has been described in the plaint as the person managing the joint family business, went to. the shop of the defendant accompanied by one Gayaprasad and demanded delivery of the goods to be given back to to the plaintiffs.
The delivery was refused to be given by the defendant; firstly, on the ground that the goods were intended to be sold in the defendant's Adat and, therefore, there was no question of the goods being returned, and secondly, on the plea that the defendant did not know Jankiprasad and the goods could be delivered only when a letter of authority was produced and a discharge receipt was duly, passed. After this refusal, the plaintiffs immediately sent a telegraphic notice (Ex. P-6), dated 1-7-1957, through Shri K. B. Sinha, Advo-cate. Two more notices were also sent. The are Exs. P-9 and 14 on record. The receipt of these notices is admitted. The replies to these notices had been given by the defendant and the are on record.
3. The case of the plaintiffs is that their firm is a Hindu joint family firm, the business of which is managed by plaintiff No. 3, Jankiprasad. Jankiprasad had sent these goods to the defendant under railway receipts, dated 24-11-1956, accompanied by the letter Ex. P-1; that he fully knew Jankiprasad from before and the demand for receipt and the production of proper authority in favour of Jankiprasad for receiving the goods made on 1-7-1957 was merely a pretext adopted by the defendant for the purpose of not delivering the goods; that the plaintiffs had entered into a contract of sale of these goods with Gayaprasad and that on account of the attitude adopted by the defendant of not delivering the goods though repeated requests were made, the plaintiff-firm was ultimately required to pay Rs. 700/- to Gayaprasad as damages on account of non-delivery of the goods by the defendant. The plaintiffs further averred that Rs. 1128/14/9 were due from the defendant on account of old dealings between the parties. In the last notice, Ex. P-I4, which was sent on 25-7-1957, the plaintiffs claimed price of the goods as damages and interest. Details of these items are given in para 9 of the plaint. The total claim which was made was for Rs. 13,340/ 7/3. It included the old balance of Rs. 1128/14/9 referred to above.
4. Various pleas were advanced by the defendant in the written statement but before us, the following points only have been urged on his behalf :-
'1. That Jankiprasad (plaintiff 3) was not the manager of the joint family business;
2. That at any rate, Jankiprasad could not be treated by the defendant as the manager of the joint family business because this fact was not known to him;
3. That Jankiprasad had no legal authority to demand the goods without satisfying the defendant that the demand was being made on behalf of the joint family firm and he had the right to give a proper acquittance. Jankiprasad was not clothedwith any authority to make the demand and he was not even prepared to pass a receipt discharging the defendant from his responsibility;
4. That defendant had a lien under Section 221 of the Contract Act on the goods for his commission, etc., and could detain the goods till that lien was satisfied;
5. That the suit was bad on the ground ofnon-joinder of necessary parties. Admittedly, Wasudeoprasad was a member of the joint Hindu family but was not impleaded;
6. That the suit could not be brought for price. The last notice of 25-7-1957 (Ex. P-14) did not claim the goods but claimed price and was, therefore, illegal and could not give a cause of action to the plaintiffs to sue; and
7. That the plaintiffs have failed to prove the rates prevailing in the market of the goods on the date of cause of action.'
We shall take up these points one by one for con sideration.
5. Point No. 1 :- With regard to this point the evidence on the plaintiffs' side is furnished by the statement of Jankiprasad himself as P. W. 1 who has clearly deposed that he manages the joint family firm. He has been supported in his statement by Dulichand (P. W. 2) who in para 7 of the deposition stated that he had dealings with the plaintiff firm which is managed by Jankiprasad. Apart from this evidence, the documentary evidence on record is Ex. P-1 which accompanied the railway receipt under which the goods in question were sent to the defendant. Ex. P-1 is admittedly signed by Jankiprasad. There is also Ex. P-9 on record which is the hundi signed by Jankiprasad and was given to the defendant on 26-11-1956 in connection with prior dealings between the parties. These documents clearly show that Jankiprasad used to give instructions on behalf of the plaintiff-firm and had authority to draw hundies on behalf of the joint family firm. The defendant has failed to show that the plaintiff-firm was managed by any other person. Thus, there is ample evidence on record to establish that the plaintiff-firm was being managed by Jankiprasad as found by the lower Court.
6. Jagatnarayan is admittedly the eldest member in the family being the father of plaintiff No. 3 Jankiprasad. On this basis, it was argued that the legal presumption could only be that Jagatnarayan was the karta of the family and in that capacity, the manager of the joint family business also. However, this presumption is not universally true and is capable of being rebutted. It is well settled that even a junior member of the Hindu joint family, if he is incharge of the family business, will have all the powers of a managing member to the extent necessary for a proper conduct of the business of which he is incharge. (See Ramakrishna v. Manikka, AIR 1937 Mad 375). The same principle has been reiterated in Sheo Pershad Singh v. Saheb Lal, ILR 20 Cal 453 and Venkatachalam v. Venkateshwara Rao, AIR 1944 Mad 33. Thus, the point is decided against the appellant.
7. Point No. 2 :- (After discussing the evidence, His Lordship concluded :) We, therefore, hold that the defendant knew that Jankiprasad was the manager of the joint family business much before 1-7-1957 and at any rate, he had no difficulty in ascertaining this fact on 1-7-1957 when delivery of the goods was demanded and he refused.
8. Point No. 3 :- This is the mostimportant question in the instant case. ShriR. S. Dabir for the appellant has urgedthat there was no proper demand madefor the return of the goods and, therefore, thedefendant was within his rights in not returningthe goods and insisting upon production of properauthority and a proper discharge receipt. Hepoints out that the plaintiff himself has admittedin his deposition that when he approached thedefendant on 1-7-1957, the defendant asked himto produce a proper authority because he (JankiPrasad) was not known to him. He argued thatit was very easy for the plaintiffs to produce theauthority as desired by the defendant and the failure to produce it naturally caused larger suspicions. In this way, the entire action of the nonreturn of the goods is justified. Shri Dabir emphatically relied upon Clayton v. Le Roy, (1911) 2 KB 1031. The facts of that case were that the plaintiff's watch, which had been bought some years previously at the defendant's shop, was stolen from the plaintiff, who gave information of the theft to the defendant. After the theft, the watch was pledged with a pawnbroker, and eventually, together with a large number of other unredeemed pledges, was sold by auction.
Shortly afterwards, the watch was purchased in a jeweller's shop in the country by one Mr. Bannet who sent to the defendant for an opinion as to whether it was a genuine antique watch. The defendant wrote both to the plaintiff and Mr. Bannatt telling them that it was the watch which had been stolen, and inquiring as to their wishes in the matter. No answer was sent by the plaintiff to the defendant's letter, but a few days afterwards a clerk of the plaintiff's solicitors called at the defendant's shop and, on being shown the watch, demanded that it should be then and there handed over to him, and, on this request being refused, at once served the defendant with a writ in detinue which he had taken out on behalf of the plaintiff about two hours previously.
It was held by a majority decision of the Court of Appeal that upon these facts, there had been no wrongful refusal on the part of the defendant to return the watch to the plaintiff before the date of the issue of the writ and the plaintiff had no cause of action against the defendant either in detinue or trover.
9. Shri A. P. Sen, on the other hand, contended that the facts in (1911) 2 KB 1031 (supra) were clearly distinguishable. In that case, the demand was made by a stranger and the defendant was not bound to return the chattel immediately without ascertaining the right of the person making the demand. He stressed that in the instant case, the defendant was not dealing with a stranger at all. He knew Jankiprasad from long before and had business dealings with him and the reply given by the defendant on 1-7-1957 was merely a pretext to avoid delivery which the defendant was not entitled to withhold. He pointed out that the entire course of conduct and circumstances showed that the refusal to give delivery in the circumstances of the case clearly amounted to conversion. He further argued that the defendant being the bailee was estopped from challenging the title of the bailor who in the instant case was no other person than Jankiprasad himself because the goods were sent to the defendant under Ex. P-1 which was signed by him. It was also argued that at the most, the defendant could be entitled to reasonable time for ascertaining the facts by getting in touch with the plaintiff-firm or by other source and he could not refuse to return the goods for such a long time.
10. Before evidence on this point is discussed, it would be helpful to notice the principles of law bearing on conversion. It is well known that a conversion is an act of wilful interference, without lawful justification, with any chattel in a manner inconsistent with the right of another, wherebythat other is deprived of the use and possession of it. Two elements are combined in such interference: (1) a dealing with the chattel ih a manner inconsistent with the right of the person entitled to it, and (2) an intention in so doing to deny that person's right or to assert a right which is in fact inconsistent with such right. But, where the act done is necessarily a denial of the other's right or an assertion of a right inconsistent with it, intention does not matter. The usual method of proving that a detention is adverse within the meaning of this rule is to show that the plaintiff demanded the delivery of the chattel, and that the defendant refused to or neglected to comply with the demand.
Presumably, any conduct of the defendant which shows that he not merely possesses the goods, but intends to hold them in defiance of the plaintiff and to deprive him of the possession of them is sufficient to constitute a conversion, even though there has been no formal demand of restitution. Where there is a genuine doubt in the defendant's mind as to the ownership of chattels, a temporary and provisional refusal to deliver them to the claimant, pending inquiries into his title, is justifiable, and is neither a conversion nor any other kind of wrong. No person is bound to deliver forthwith to the first claimant on peril of be-ing sued for a conversion. In such cases, it is a question of fact for a jury whether there was an honest doubt as to the title and whether the delay was reasonably required for the purpose of making the needful inquiries. (See Alexander v. Southey, (1821) 5 B and Ald 247, Burroughes v. Bayne; (1860) 5 H and N 296; and (1911) 2 KB 1031 and Dhian Singh v. Union of India, AIR 1958 SC 274.
11. Winfield in his book on Tort (6th Edi.page 417) defines 'conversion' as 'any act in relation of the goods of a person which constitutes an unjustifiable denial of his title to them'. On the same page, the learned author has observed that conversion consists in an act intentionally done inconsistent with another's right, though the doer may not know of or intend to challenge the property or possession of that other. (See: Per Lord Porter, Caxton Publishing Co. v. Sutherland Publishing Co., 1939 AC 178 (202). It is also clear that where there is a refusal, it must be unconditional. If it is accompanied by a condition, the condition must be a reasonable one.
12. The detention of the goods made in (1911) 2 KB 1031 (supra), could not be held to be adverse detention, as the goods were admittedly deposited with the defendant by a third person on whose want of title, he could not act without taking instructions from the depositor. No reasonable time was made available to the defendant in that case to contact the depositor. The letter written by the defendant did not indicate any intention on the part of the defendant to interfere with the legal rights of anybody. There was no concluded intention on the part of the defendant to detain the watch if it belonged to the plaintiff. The subsequent conduct of the defendant after the writ was served on him was attributed in the case to be his natural irritation at being treated in an unreasonable manner. In fact, Fletcher Moulton, L. J., observed :-
'The fact that his declining to give up the watch on the demand of a stranger who produced no written authority was answered by the immediate service of a writ already issued would account for any amount of irritation.'
Considering the effect of the letter written by the defendant, Farwell, L. J., observed in the case :-
'How can such a letter possibly be construed as a claim to retain the watch in derogation of the title of the plaintiff?'
Therefore, the principle laid down in (1911) 2 KB 1031 (supra), does not help the appellant.
13. Another way of examining the question is as to whether the defendant would have become liable for conversion if he had handed over the goods, he had received, to Jankiprasad. Obviously, he could not be so liable as at any rate, the defendant could show that he had done no wrong because all that he had done was that he had tried to return the goods to an apparently trustworthy agent of the sender. This principle was settled in the case of Elvin and Powel Ltd. v. Plummer Roddis, Ltd., (1933) 50 TLR 158. Section 117 of the Evidence Act makes it clear that no bailee can be permitted to deny that his bailor had at the time when the bailment commenced authority to make such bailment. Consequently, the defendant was estopped from denying the title of Jankiprasad from whom he received the goods.
14. In the light of the principles, above stated, it has to be examined whether the refusal of the defendant to deliver the goods according to the instructions given by Jankiprasad on 1-7-1957 was justified or not. In our view, it was not so justified. We have already held that the defendant knew Jankiprasad from before and he also knew that he was managing the affairs of the family business of the plaintiffs. Even if it be assumed that he entertained any doubt with regard to the authority of Jankiprasad, tie could not choose to detain the goods of the plaintiff-firm indefinitely in defiance of the demand made. His proper action should have been to make inquiries about the position of Jankiprasad in the plaintiff-firm very quickly and to inform the plaintiff-firm if as a result of the inquiries made by him, he was satisfied that Jankiprasad had no right to demand the goods.
Further, we are of the view that the attitudeadopted by the defendant on 1-7-1957 was merelywith the view that the plaintiffs may not be ableto get possession of the goods to which they wereimmediately entitled. It is impossible to holdthat the refusal of the defendant was an honest refusal in the circumstances of the case. He ignoredthe three notices of lawyers which were sent on behalf of the plaintiff-firm and which required immediate delivery to be given. There is evidence onrecord to show that after giving these notices,Jankiprasad repeated his demand to the defendantbut he maintained his attitude of paying no heedto it. In the instant case, the action of the defendant clearly amounts to wrongful conversion ofthe plaintiff's goods by refusal and detention ofgoods.
15. Point No. 4 :- With regard to this point, it is significant to note that in the notices thatwere sent in reply to the plaintiffs' notices, no definite claim with respect to commission, remuneration or any other charges was made. In the written statement itself, no counter-claim was made with regard to commission. The custom of the market which has been set up in the statement of some witnesses appearing on behalf of the defendant is to the effect that if the goods are not sold in the agency of the commission agent and are taken back by the sender Adat charges at the rate of annas eight per cent and godown charges also are payable by the sender, was not even raised in the written statement. Obviously, we cannot hold that the defendant had a lien with regard to a sum which he never made known to the plaintiffs.
16. That apart, it will be seen that the defendant had admitted that at the close of the previous dealings between the parties, he had to pay more than Rs. 1000/- to the plaintiffs. The present suit was brought for the recovery of Rs. 13,000/- and odd on behalf of the plaintiffs which included the previous item of khatabaki and damages amounting to Rs. 700/- which were paid to Gaya Prasad. Thus, it is clear that the defendant had sufficient money of the plaintiffs on 1-7-1957 to pay himself with regard to the due amount of his commission and other charges even if they were payable according to the custom of the market. The defendant had absolutely no right to refuse delivery of the goods on 1-7-1957 and thereafter in the alleged exercise of his lien as factor.
17. Point No. 5 :- With regard to this question, we may stress the provisions of Order 1 Rule 13 of the Code of Civil Procedure which enjoin upon a party to raise the objection of nonjoinder of parties at the earliest possible opportunity. In the written statement, this objection was not raised at all and the objection that was raised was of a different type altogether. The defendant did not admit the plaintiff-firm to be a joint Hindu family firm in his written statement and pleaded that it was a partnership firm. Therefore, the objection with regard to non-joinder of Wasu-deoprasad could not be allowed to be raised subsequently. Even on merits, we are of the view that the objection is without any real merit.
As already held, the manager of the joint family business was plaintiff No. 3, Jankiprasad, who is on record. The eldest member of the family, plaintiff No. 1, was also on record. It is not necessary according to the Hindu Law to implead all the co-parceners in the suit. Therefore, the omission to implead Wasudeoprasad as plaintiff is not at all fatal to the suit. (See : Mulgund Co-operative Credit Society v. Shidlingappa Ishwarappa, ILR (1941) Bom 682 : (AIR 1941 Bom 385). The family was effectively represented by the karta of the family or the manager of the joint family business.
18. The second aspect of the matter is that the contract of bailment which took place by the goods being sent to the defendant's shop along with Ex. P-1 was between Jankiprasad on the one hand and the defendant on the other. In this view, no question of non-joinder could arise as Jankiprasad had brought the suit. Shri Dabir argued that all the joint promisees could havebeen impleaded under the provisions of Section 45 of the Contract Act. That would have been correct only if it was not permissible for the family to sue through its manager. Another submission made by Shri Dabir was that the suit has been brought by the three plaintiffs in their individual capacity and not in their capacity of managers. It is settled law that the plaint need not disclose that particular persons were suing in the capacity of the karta or manager of the joint family business. The position could be gathered from the circumstances of the case and the evidence. As the present action is essentially one in tort, anyone of the injured persons could maintain the action without joining the other members of the family in common as plaintiffs.
This principle seems to follow from the case of Roberts v. Holland, (1893) 1 QB 665 where in an action brought to recover damages for wrongful acts causing injury to a reversion, an objection was raised that the plaintiff, being only one of several tenants in common, could not maintain the action without joining his co-tenants in common as plaintiffs, and this contention was repelled by the Court. The circumstances of the case do not leave any doubt at all that the family was effectively represented in the suit by plaintiffs 1 and 3. This objection is accordingly overruled.
19. Point No. 6 :- Another point that has been raised is that the plaintiff could not bring a suit for price as the goods were never sold to the defendant. The argument is that a claim for price contemplates that the title of the plaintiffs in the goods has ceased and the plaintiffs do not aver in any manner whatever that their title had come to an end. It is explained on behalf of the respondents that the word 'price' as used initially in the notice, dated 25-7-1957, was loosely used. All that was intended to be indicated by the use of this expression was that the measure of damages in the instant case was equal to the price and as it was -so, the word 'price' was used to indicate the quantum of damages which could be claimed by the plaintiffs. In AIR 1958 SC 274, it has been laid down :-
'A bailor in the event of the non-delivery of the goods by the bailee, on a demand made by him in that behalf, is entitled, at his election to sue the bailee either for wrongful conversion ..... of the goods or the wrongful detention thereof and if the bailor pursues his remedy against the bailee for wrongful detention of the goods, it would be no answer for the bailee to say that he was guilty of wrongful conversion of the goods at an earlier date which fact of conversion of the goods the plaintiff knew or ought to have known at or about that time and is, therefore, not liable to the plaintiff for wrongful detention thereof. It is the option of the plaintiff to pursue either remedy against the bailee just as it suits him having regard to all the circumstances of the case and the bailee cannot be heard to say anything to the contrary for the simple reason that he cannot take advantage of his own wrong and cannot ask the plaintiff to choose a remedy which may be less beneficial to him.'
The same reasoning would in our opinion ap-ply to a case where the bailor pursues his remedyfor wrongful conversion of the goods instead of wrongful detention thereof. In general, the measure of damages is the value of the thing, credit being given to the defendant for the return of the goods converted or of their equivalent. There has been some divergence of judicial opinion as to the time on the basis of which damages are to be assessed. In some cases, the valuation fixed is on the basis of rates that were found to be prevailing on the date of conversion; in some others, date of judgment or verdict has been selected and in some other cases, some other dates have been taken. Winfield has discussed this question in his book on Tort at page 441 under the heading 'measure of damages' and has observed on page 442 as under : -
'On principle, it seems better to select the moment of conversion as the punctum temporis. for assessing damages, for the opposite rule would introduce an undesirable element of speculative profit or loss to the parties in an action of this kind. The principle upon which in general the measure of damages in conversion is calculated is the value of the thing at the date of conversion and the weight of authority supports this.'
In Sachs v. Miklos, (1948) 2 KB 23 the plaintiff had sued in detinue and conversion, and it was held that if the plaintiff knew or ought to have known at an earlier date of the defendants' actual or threatened conversion, and took no immediate steps to recover the goods or sue for conversion or detinue of them, the damages will be the value of the goods at that earlier date ant) not at the date of the judgment.
20. There cannot be any doubt that the present claim could be founded purely on tort. It was not necessary to support judgment in plaintiffs' favour to plead any fact about any agreement having existed between the parties. Those facts which it is necessary to state and prove to maintain it, and no others, constitute foundation of an action. It was observed in the case of Bryant v. Herbert, (1878) 3 CPD 389 :
'This shews to me that the substance of the matter was to be looked at. One may observe there is no middle term; the statute supposes all actions are founded either on contract or on tort. So that it is tort, if not contract, contract if not tort. Then is this action on the face of the statements of claim and defence founded on contract or on tort. All that is alleged is that the plaintiffs are owners of the picture, and that the defendant detains it. This means wrongfully detains it, not merely has in his possession, and negatively does not give it up. Then the action is manifestly founded on a tort on the pleadings. But, so it is if the facts are looked at. I doubt if there was any contract between the parties. It is said that the defendant agreed to give up the picture. I think not; he was to let the owner take it away; but that is an obligation the law casts on every one who has another's property in his possession. But assuming there was some agreement, the action is not founded on it.'
In Sobhanadri v. Parthasarathi, AIR 1932 Mad 583, it has been observed :
'But tile fact that there is a contract will Bet prevent the plaintiff from suing in tort if be cando so without relying on the contract. If however in order to establish the liability of the defendant, it is necessary for him to prove the contract, then he must sue in contract and not in tort; for it, is the contract that defines the defendant's liability.'
21. The distinction between a suit for conversion and detinue has again been explained in AIR 1958 SC 274 (supra) where in paragraph 18of the judgment their Lordships observed ;
'Action for wrongful conversion and actionfor wrongful detention are otherwise known as action in trover and action in detinue. Judgment for the petitioner in trover is for recovery of damages for the conversion; Judgment for the petitioner in detinue is for delivery of the chattel or payment of its value and damages for detention.'
The observations in the cases, quoted above, very aptly apply to the facts of the present case. Even if we assume the existence of an agreement between the parties at the time when the goods were sent to be kept in defendant's adat for sale or return according to the instructions of the plaintiff, the suit is not based upon that agreement but upon the simple fact of the defendant's wrongful refusal in spite of a demand. Thus, the plaint makes it clear that the suit is based on conversion or detinue and not on breach of contract.
22. In general, conversion does not deprivethe plaintiff of his title to the goods. Therefore, he may get judgment either (i) for the goods or their value; or (ii) for the value of the goods or for damages for their conversion. But, whichever of these two judgments he obtains, his title to the goods is not (in the absence of special circumstances) affected; he may exercise all his rights as owner until the judgment is fully satisfied. In Ellis v. Stenning and Son, (1932) 2 Ch 81 Manaton Courtenay Lord sold whiteacre to Joseph Noakes and Mary V. Noakes, reserving uncut timber and the right to cut and remove it. Manaton Courtenay sold the timber to Coghurst Estates, Ltd., who then sold it to George Ellis. Joseph Noakes and Mary V. Noakes wrongfully removed some of it and Eillis got damages from him for this conversion. Ellis took no steps to make Joseph Noakes and Mary V. Noakes satisfy the judgment because Joseph Noakes and Mary V. Noakes were insolvent. They sold the timber to John Stenning and Son. Ellis sued John Stenning and Son for conversion. It was held that John Stenning and Son was liable for the judgment against Joseph Noakes and Mary V. Noakes had never been satisfied. The effect of a satisfied judgment in conversion is to vest in the defendant such title as was vested in the plaintiff whose judgment has been satisfied.
23. The cause of action may be based on trover and detinue simultaneously. All the ingredients that are necessary to spell out a cause of action on anyone of these two basis are present in the case without any doubt. Thus, by the mere use of the word 'price' in the notice and the demand for price in the suit, the real cause of action cannot be made obscure and we hold that the suit has been brought on these causes ofactions, namely, of wrongful conversion mainlyand even wrongful detention.
24. Point No. 7 : Before examining this point, it would be useful to recapitulate that the first demand for delivery of the goods was made on 1-7-1957 and was refused on that very day. This refusal could be construed as conversion if it was unreasonable. We have held already that the refusal to deliver the goods was not based on any genuine or reasonable grounds and was a mere device to retain the goods. Thus, there is no doubt that the cause of action arose on 1-7-1957. We have already quoted at length the law showing that damages to be awarded in a case of conversion should be the damages when the conversion took place. Shri Dabir argued that as the notice was sent on 25-7-1957 in which four days time was allowed for payment of the price, the cause of action finally arose on that date and on no date earlier than 29-7-1957. In our view, this is not correct.
A cause of action which has fully accrued does not become inchoate merely because some further efforts are made to avoid litigation and to press the demand by direct negotiations or even through the intervention of some friends. The effect of the subsequent notices sent on 15-7-1957 and 25-7-1957 (Exs. P-9 and 14) was merely to attempt further to see that delivery of the goods may be given or price paid. These efforts proved to be abortive. By making these efforts, the cause of action which accrued to the plaintiffs on 1-7-1957 was not lost. Therefore, the material date, in our view, for the assessment of damages is 1-7-1957 and the damages would be required to be awarded at the rates as prevalent in the market on that date.
25. We may further say that Shri Dabir has argued that the claim as alleged was for price which could not be made because the goods were never sold to the defendant and the property which vested in the plaintiffs never passed to the defen-dant. We have already held that this would have been the true view, if the claim was for price on sale but as a necessary corollary of the view taken by us, it follows that the demand for price made in Ex. P-14 is of no consequence and atleast, it cannot have the effect of shifting the date of cause of action from 1-7-1957 to 29-7-1957.
26. The next question to be examined is whether the rates prevalent in the market on 1-7-1957 have been proved. The plaintiffs examined Gayaprasad (P. W. 5) who after taking samples of this commodity from the defendant's possession actually bargained at the price stated in Ex. P-13. There is nothing to disbelieve this witness-He has been believed by the trial Court and his statement does not suffer from any inherent weakness or inconsistency. The plaintiff Jankiprasad as P. W. 1 has stated that as the price had gone-up even after 1-7-1957, he had to pay Rs. 700/-to Gayaprasad as damages for breach of contract on failure of the defendant to deliver the goods.
We mention this fact only to show that the award of damages at the rates at which Gayaprasad purchased linseed and Ramtilla from the plaintiffs cannot be deemed to be excessive in view of therising market after that date. The damages have been awarded by the lower Court on the basis of the rates proved by Gayaprasad, About rates, no definite evidence has been adduced on behalf oithe defendant though his two witnesses Omprakash (D. W. 2) and Ramprakash (D. W. 3) orally deposed about the rates of linseed and Ramtilla. Both of them have admitted in their cross-exami-nation that they maintained books. In the absence of these account-books, mere oral statement with regard to rates unsupported by any otherdocument is of no help and we agree with the slower Court that this evidence was rightly rejected. Item of Rs. 700/- alleged to be paid to Gayaprasad (P. W. 5) was disallowed by the trial Court as being too remote.
The plaintiff has not filed any appeal or cross-objection claiming this amount. Damages were awarded by the lower Court on the basis of rates prevailing on 1-7-1957 and no other item awarded as challenged. Thus, there appears to be no error an the sum decreed. We, therefore, entirely agreewith the conclusions reached by the learned trial Judge and affirm his conclusions on all the disputed points.
27. The result is that the appeal totallyfails and is accordingly dismissed with costs.