Coutts Trotter, J.
1. This is an appeal from a judgment of Mr. Justice Phillips sitting on the Original Side and the claim was one by the plaintiffs for damages for breach of warranty in regard to 15 out of a consignment of 25 bales of series which were sold to them on the 28th of August 1918. The learned Judge has followed the decision of this Court in Peer Muhammad Routher v. Dalooram Jayanarayana : (1918)35MLJ180 that the effect of Section 113 of the Indian Contract Act is to lay down the same law in this country as in England, namely, that when there is no express warranty in the sale of goods, there is an implied warranty of merchantability, that is to say, the goods shall be immediately saleable under the description by which they are known in the market.
2. We have had put before us figures about these bales and the figures are rather startling. Out of 1037 pieces in the first bale 782 pieces were 'damaged' and 105 'pieces were what are known in the trade as 'seconds', which I understand means of unequal length. That comes to this that 9/10ths of the whole pieces in the bale are, defective; and in money, taking Messrs. Walker & Co's allowance of 8 annas for 'damaged' and 4 annas for 'seconds', Rs. 417-4-0 has to be allowed out of a total of about Rs. 8,000 for the bale, that is, something like 1/16. In the second bale out of 1027 pieces 907 pieces, were damaged and 83 pieces were seconds, that is about 4/5ths of the whole contents. In the third bale out of 907 pieces, 462 pieces were damaged and 143 pieces were seconds, that is, about 2/3rds of the contents, of the whole.
3. The only question before us and ultimately the only question before the learned Judge was whether on the facts of this case these goods were what the law calls 'merchantable'. That is a question of mixed fact and law. The attention of the learned judge does not appear to have been called to two cases in the court of Appeal in England both reported in 1910, 2 K.B. at page 831 and 937, respectively. The first is the case of Bristol Tramways v. Fiat Motors and the other is the case of Jackson v. Rotax Motor and Cycle Co. I shall go to the latter case because I think it enunciates the propositions which are laid down in both perhaps in a form more easily applicable to this case. What happened in that case was this - A large consignment of motor horns was sent from France to London. When they arrived the horns were found to be dented and scratched, some badly polished and some badly finished and 364 horns out of a total of 609 were said to be defective. The main causes of complaint were that the bell parts of the horn were dented and scratched, that the tubes were discoloured and were badly finished and polished and that 12 of the horns were not of the pattern ordered, and the sellers were ready to substitute good horns for the wrong horns sent by mistake. The Official Referee appears to have misled himself first by thinking that what he really had to apply his mind to, was whether these things were something different to those covered by the contract (of course it was not in the least necessary for him to put the case as high as that) and then he came to the conclusion that 'most if not all of the horns thus dented or otherwise injured could have been at very slight cost made merchantable, As regards the tubes, some arrived in a condition which required polishing or other-work to make them merchantable, and in a few there may have been some careless work. But reviewing the evidence as a whole I cannot find that the goods as an entire consignment were unmerchantable so as to justify rejection' and he accordingly gave the buyers an allowance and held that the goods were merchantable. Dealing with the law Cozens-Hardy, M.R. said this: I shall have to read first the part which deals with the facts. 'The case made out before the Official Referee was that a very considerable portion of the horns delivered in London were dented and damaged in various ways, and that damaged state was partly due to the bad packing by the plaintiff in Paris and partly to injury sustained by the transit. The Official Referee has found not merely that the horns were damaged in transit, but that owing to defective packing many of the horns as delivered were not in a merchantable state in the sense that they could without more have been disposed of reasonably and properly by the buyers as dealers in horns to any customer who wanted then and there a horn for a motor car, but in order to make them merchantable they required to be polished and otherwise dealt with at a cost which he said would have been trifling'. Then the Divisional Court appears to have taken much the same view and the learned Master of Rolls says this: 'The Divisional court put what, so far as I am aware, is an entirely new meaning on the word 'merchantable' namely that goods are 'merchantable' if they only want some trifling thing done to make them immediately saleable that they are to be considered as merchantable, although not immediately saleable, and although a further expenditure of money is required by the purchaser to make them saleable. I am not aware of any authority for that view. It seems to me to be inconsistent with the language of the Sale of Goods Act to which our attention has been called'. And then he says that although a large proportion of the goods were merchantable this was not a case in which he could apply the doctrine of the minimize. Farwell, L.J. applies the same principle and he says this: 'It may well be that in the case if a single horn out of hundreds was good the rule de minimis would apply, and it would be open to the jury, or to the Official Referee, to find that, notwithstanding the fact that one or two items were unmerchantable, the consignment as a whole, treating the contract as for a consignment, was unmerchantable; but the Official Referee has not taken that view, and, as I understand his finding, I think it is untenable'. This was a case where you could recondition the goods with shortage of weaving and short composition. I think one might apply the principle of de minimis to damage which, though it cannot be met by record can be met by a small allowance. But I cannot understand the view that a bale of a thousand pieces of piece goods, of which 9/10ths are damaged however slightly is merchantable and that a seller can say to his buyer, you must take these goods, and I will make you an allowance in respect of 9/10ths of these, because they are 'damaged' or 'second'. A mere statement of the figures is enough to show according to the true principles of law laid down by the Court of Appeal in the two cases which I have cited, that these goods were radically unmerchantable and that no seller could have forced them-on an unwilling buyer.
4. As Mr. Duraswami Aiyar is willing to accept Messrs Walker and Company's figures as between them and their vendors at 8 annas a piece for 'damaged', and 4 annas a piece for 'seconds', the result will be that there will be a decree for the plaintiffs for Rs. 1059-8-0 with costs here and below with interest thereon at 6 per cent, from the date of the lower Court's decree.
5. I agree.