Krishnaswami Nayudu, J.
1. The short point in this appeal is Whether the plaintiff appellant, who despatched the goods by rail to the defendants and which goods had been lost in transit, is entitled to re-cover the value thereof from the defendants. Reliance is placed on Section 39 Clause (1) of the Sale of Goods Act, that delivery of the goods to a carrier whether named by the buyer or not, for the purpose of transmission to the buyer, or delivery of the goods to a wharfinger for safe custody, is prima facie deemed to be a delivery of the goods to the buyer. But under Clause 2:--
'Unless otherwise authorised by the buyer, theseller shall make such contract with the carrier orwharfinger on behalf of the buyer as may be reasonable having regard to the nature or the goodsand the other circumstances of the case. If theseller omits so to do, and the goods are lost ordamaged in the course or transit or whilst in thecustody of the wharfinger, the buyer may declineto treat the delivery to the carrier or wharfinger,as a delivery to himself, or may hold the sellerresponsible in damages.'
2. Here the ordinary precaution which the plaintiff should take viz, to declare to the railway about the goods in question which came under the excepted articles enumerated in the IInd schedule to the Indian Railways Act, IX of 1890, and the value of which exceeded Rs. 300, has not been taken with the result that the plaintiff is not entitled to any damages in respect of loss of such goods from the railway company; The liability of the buyer is therefore exempted by reason of the plaintiff not having taken the reasonable care to declare the goods as per the requirements of the Indian Railways Act, which resulted in the plaintiff not realising the value of the goods from the railway company.
In these circumstances it is not open to the plaintiff to claim the value of the goods which did not reach the defendants and which the defendants had not the benefit of. The result is, thissecond appeal falls and is dismissed. But therewill be no order as to costs in this second appeal.No leave.