1. This appeal is by the 4th defendant in the action against the decree passed by the District Judge of Coimbatore directing him to pay Rs. 2,154 and interest to the plaintiffs for damages arising out of breach of a certain contract with reference to several logs of rosewood, cedar, and teak sold by the 4th defendant to the plaintiffs. These logs at the time of the sale were in a forest belonging to the 4th defendant and the case of the plaintiffs is that they incurred considerable expense in removing the logs which they had bought and that at a certain Government depot on the way the logs were stopped by the Government Forest Officers, as they bore marks on them of the 5th defendant who claimed the logs as his own. After some correspondence, the logs were eventually made over by the Forest Officer to the 5th defendant on his executing a bond of indemnity. The timber was stopped at the Government depot on the 16th March 1909, the sale having taken place on the 29th October 1899, and on the 11th April 1900, the second plaintiff sent a letter Exhibit U to the 4th defendant stating therein what had happened and that they would hold him responsible for the loss they had suffered. To that the defendant sent a reply, Exhibit W of 24th April, in which he says that no one had the right to the timber sold by him to the plaintiffs and that the plaintiffs ought not to refrain from doing the needful and that the Forest Officer had no right to pass a decision like that mentioned in the plaintiff's letter. But it is to be noted that the 4th defendant, in his reply to the plaintiff's letter written to him soon after the claim was made by the 5th defendant to the timber, stopped at the depot which the plaintiffs alleged had been sold to them by the 4th defendant does not say that the timber claimed by the 5th defendant had not as a matter of fact been sold to the plaintiffs but that what was sold to the plaintiffs was some other timber. Mr. Rosario appearing for the 4th defendant argues that true it is his client sold a certain number of logs to the plaintiffs but the plaintiffs have failed to prove that the logs which were detained by the Government Officers at the depot and claimed by the 5th defendant as the timber sold to him are the identical articles which were sold by the 4th defendant to the plaintiffs. He suggests that the plaintiffs may have carried away the timber which they bought and might have dishonestly attempted to remove the timber sold to the 5th defendant or that the timber which the plaintiffs bought might still be in the forest for ought the 4th defendant knew. The second plaintiff went into the box and has sworn that the 4th defendant's karyasthan sold the identical logs which were removed by the 2nd plaintiff's men and detained by the Forest Ranger at the instance of the 5th defendant. The question was tried as between the plaintiffs and the 5th defendant as to which of them the timber involved in the suit belonged. It has been found, and upon the evidence the finding is amply supported--and this finding is not challenged now--that the timber in question had been sold as a matter of fact by the 4th defendant to the 5th defendant before there was any sale of timber to the plaintiffs. The logs bore the marks of the 5th defendant as well as of certain creditors of his who had attached those logs. The case of the plaintiffs is that these very logs were sold to him by the agent of the 4th defendant and this is what the 2nd plaintiff says in his evidence. The 4th defendant has adduced no evidence to rebut this statement nor has he examined his agent. And what is more, it does not appear to have been the case of the 4th defendant that the timber sold to the plaintiffs was not the timber which had been previously sold to the 5th defendant and subsequently detained at the Government depot. As we read the 4th defendant's written statement and the issues, no such defense as is now urged in appeal was ever put forward ; and admittedly the District Judge does not deal with any such question. As has been pointed out, there is no suggestion of such a case for the defense, to be found in Exhibit W. Mr. Rosario, however, argues that as it is for the plaintiffs to make out that the timber to which the 5th defendant has successfully established bis title was the identical timber sold to the plaintiffs, it is open to him to ask us to hold that they have failed to make this out. He asks us to disbelieve the 2nd plaintiff's statement on the point on the ground that he having, as he admits, measured the timber sold to him and not having observed the marks of the 5th defendant and of the attaching creditors, the timber which was sold to him must have been different. But it was never suggested to the 2nd plaintiff in cross-examination that having regard to the position of the marks of the 5th defendant and of his attaching creditors on the logs, he must have observed them if those were the logs sold to the plaintiffs. Then it is said' that if the logs in question were sold to the plaintiffs how is it that there are not two sets of the 4th defendant's marks on them. But the explanation might be, as suggested by the pleader for the plaintiffs, that the karyasthan of the 4th defendant did not in fact put the 4th defendant's marks on the logs a second time. It is also urged that as no venga logs were sold to the plaintiffs the fact that they were attempting to remove the venga logs as well shows that they were not acting honestly. The explanation seems to be that these venga logs some whom or other got mixed up with the other timber. However, that may be, the fact being that the suit was not defended on the ground now urged, it is idle to raise these questions for the first time in the appellate Court.
2. The other point argued by Mr. Rosario is that the District Judge has erred in assessing damages on the principle that the plaintiffs are entitled to the amount paid by them as price of the timber and the costs of carrying the timber from the forest to the depot where they were seized. Upon the facts as found in the case it comes to this the 4th dependant sold as his, timber which belonged not to him but to another person, the 5th defendant and the 4th defendant knew at the time of the contract that the plaintiffs would have to incur expense to remove the timber from the forest to a place where they could either sell them or utilize them for some purpose of their own. There was a distinct breach on the part of the 4th defendant of warranty of title and the plaintiffs are entitled to a refund of the money paid by them for the goods and having regard to the nature of the goods sold, and what was within the contemplation of the parties, the expense incurred in removing the timber must be taken into account as loss to the plaintiffs naturally flowing from breach of the warranty. Mr. Rosario has also contended that the plaintiffs have not proved the amount of the expense which they incurred in removing the timber as far as the depot. But they filed their accounts upon which the Judge relies and the accuracy of these accounts was never challenged in the lower Court. We hold therefore, that the appeal fails and must be dismissed with costs.