Sankaran Nair, J.
1. One of the grounds for dismissing the suit was that the plaintiffs gave no notice to the defendants and, therefore, the defendants are not liable under Section 118 of the Contract Act.
2. Neither in the written statement filed in the case nor in the elaborate judgment of the Court of first instance is there any reference to the bar of the plaintiffs' claim under Section 118 of the Contract Act. To make that section applicable, it must appear that the plaintiffs accepted the goods without giving notice. There is no finding that the plaintiffs accepted the goods. The learned -Judges find that notice was only given to the defendants in October 1907, but, in the absence of a finding whether the goods were accepted, this is insufficient. Taking delivery for the purpose of sale in order to avoid further loss does not necessarily show acceptance.
3. I have also to point out that the learned Judges, in holding that Binny and Co. are not agents of the defendants, have overlooked Exhibit Or in which the defendants admit that Binny and Co., are their agents. That letter is further signed for Bullock and Co., by Binny and Co., as agents and such agency is nowhere denied on behalf of the defence; besides Exhibit G, there is also oral evidence on behalf of plaintiffs. If they are the agents, the non-production of the letter in May referred to in Exhibit E and the fact that notice, though alleged in the plaint, is not expressly denied, raise a strong presumption in favoar of the plaintiffs' claim.
4. Nor have the learned Judges properly disposed of the claim.
5. They say it is not material as no damages are claimed on that account arising from the non-delivery of the policy of insurance. The facts are set forth in para. 5 of the plaint as a part of the plaintiffs' case.
6. I must, therefore, ask for findings on the following points:
(1) Whether there was acceptance of the goods within the meaning of the term as used in Section 118 of the Contract Act?
(2) whether notice was given to the defendants or Binny and Co., and whether Binny and Co., were defendants' agents?
(3) whether the defendants were bound to deliver the policy of insurance and whether on account of their failure to do so, they are liable to pay any damage to the plaintiffs? The parties are at liberty to adduce further evidence.
7. The findings should be submitted within one month after the re-opening of the Small Cause Court and seven days will be allowed for filing objections.
8. In compliance of the above order, the Judges of the Court of Small Causes, Madras, submitted the following
9. The High Court has called for findings on the following points after admitting further evidence, viz.:
1. Whether there was acceptance of the goods within the meaning of the term as used in Section 118 of the Contract Act?
2. Whether notice was given to the defendants or to Binny and Co., and whether Binny and Co., were defendants' agent?
3. Whether the defendants were bound to deliver the policy of insurance and whether on account of their failure to do so, they are liable to pay any damages to the plaintiffs?
10. After the remand, plaintiffs re examined their agent in Madras, P. Kesavelu Chetty; the defendants examined Mr. Prudhomme, the Assistant Manager of Messrs. Binny and Co., and obtained the evidence of Mr. G. Scoones, their agent now at Chittagong, on commission and filed it as Exhibit III.
11. It is convenient to consider, first, the 2nd point on which a finding is called for by the High Court. It is abundantly clear from Mr. Pradhomme's evidence that Messrs. Binny and Co., were never the agents of the defendant Company. They are both agents of the B.I.S.N. Co., but not of each other. It may be mentioned that when the case was before us in the Full Bench on the last occasion, this point was not controverted. Exhibit G does not seam to us to have any bearing on the question. It is a letter written from Rangoon by the defendant Company (signed by their Assistant Manager) as agents of the B.I.S.N. Co., referring plaintiffs to the agents of the said B.I.S.N. Co., at the port of discharge viz., Madras, for any claim against the said B.I.S.N. Co. The 'Company' referred to in the body o the letter is the B.I.S.N. Co. That this is how the plaintiffs also understood it is shown by their reply Exhibit 1 where their Vakil says 'there is no good your referring my client to them' the B.I.S.N. Co. It is not necessary to consider Exhibit G further, as it is now admitted before us by Mr. Sivagnana Mudaliar plaintiffs' Vakil that it has no bearing on the question of agency. The evidence of Kesavelu Chetty given at the former trial is of no value on the question of agency. There is no statement in the plaint that Messrs. Binny and Co., were defendants' agents; there is only statement about 'notice to defendants' agents' without saying who was meant. In fact, plaintiffs' case now before us is not that Binny and Co., were defendants' agents but somehow they became by their acts their 'constructive' agents, whatever that might mean. We have no hesitation hi finding that Binny and Co., were never the agents of the defendant Company.
12. Now, as regards the question of notice, there is no proof at all that any notice was sent to the defendant Company. The alleged notice of May 1905 to the defendant Company is not admitted by the defendants and is not proved by the plaintiffs. Chokkalinga Chetty, plaintiffs' agent in Rangoon, who is alleged to have sent the notice, was not asked a single question about it when examined on commission at the original trial; no attempt has been made to obtain his evidence now. Kesavela Chetty who speaks about this notice admitted he knew nothing about it personally; his statement regarding the sending of the notice is thus no evidence. It is very unlikely that such a notice would have been sent as plaintiffs were then looking to Messrs. Binny and Co., as agents of B.I.S.N. Co., for redress. The fact that no reply from defendant Company to such a letter, is produced is also against the plaintiffs as defendants were very regular in their replies. If the plaintiffs had sent such a letter, it is unlikely they would have done so without keeping a press copy of it; they produce no such copy. In the plaint there is no reference to any notice sent to the defendants, the notice alleged being one to defendants' agents perhaps meaning thereby Messrs. Binny and Co. We, therefore, find that it is not proved that any notice was sent by the plaintiffs to the defendant Company as now alleged. Notice was apparently sent to Messrs. Binny and Co., as their reply, Exhibit E, would seem to indicate; but even that notice is not produced. The reply by Binny and Co., is as agents of the B.I.S.N. Co., and it would seem, therefore, that the notice to them was also as agents of the B.I.S.N. Co. Notice to Binny and Co., is, however, of no value against the defendants.
13. On the 1st point on which finding is called for, the facts are as follows: In October 1904 plaintiff entered into a contract with the defendant Company for the purchase of rice--vide Exhibits A and I. In pursuance of that contract, 1,000 bags of rice arrived in Madras in May 1905. On going to take delivery, plaintiffs say they found 149 bags not according to specifications, some bags being of less weight and some damaged. They took delivery of the rest of the consignment at once but had these 149 bags surveyed in October 1905, after, apparently, giving a notice to Binny and Co., who refused to join in the survey--see Exhibit B. These 149 bags were then taken delivery of by the plaintiffs, after themselves paying the storage charges, and were sold on their account in public auction on 21st October 1905--see Exhibit C; and plaintiffs accepted the sale-proceeds themselves. See also evidence of plaintiffs' witness No. 2, F. Lewin. The first letter regarding any claim under this consignment, sent by plaintiffs to the defendants, seems to have been in August 1907--Exhibit K, i.e., 2 years after. We have already found that no notice is proved to have been given to defendants, as alleged, in May 1905. We are of opinion that the plaintiffs, taking delivery of the goods and getting them sold under their authority evidence an acceptance under Section 118 of the Contract Act. This is not a case where the plaintiffs, the buyers, had any power of sale over the goods, if they are to be treated as defendants' goods in their hands, either under the contract, Exhibit A, or under Section 107, Contract Act, or any other law. Their sale of the goods can be treated a' of right only if they are to be taken as the owners of the goods. In Parker v. Wallis 3 W.R. 417 Erie, J., says:--If after the goods have arrived, the vendee does any act to the goods--of wrong if he is not the owner of the goods and of right if he is the owner of the goods--the doing of that act is evidence that he has accepted them.' Plaintiffs having sold the goods after taking delivery of them, a thing they could not have done unless they made themselves the owners, we must hold that they made themselves the owners of the good sand that they had accepted goods. When plaintiffs took delivery of the goods and accepted them and treated them as theirs, it would seem from their action in sending notice to Binny and Co., to join in the survey that they were then intending to claim damages from the Steamship Co.; but this does not affect the question of accepatnce. For some reason or other, they did not proceed against that Company and their claim apparently became barred by limitation after one year under Article 30. It is only long after that they thought of claiming against the defendant Company, their first letter of claim being in August 1907. We have no doubt the defendants accepted the goods within the. meaning of Section 118 of the Contract Act, and we find accordingly.
14. On the 3rd point, on which a finding is called for, we find that it is not proved by the plaintiffs that they suffered any damage by the non delivery of the insurance policy. Palintiffs never asked the defendants about this policy till August 1907 and even then they did not ask for the policy itself but only for a copy of it see Exhibit K. There is no letter produced where the plaintiffs ask for the policy itself. We have no evidence at all before us regarding the nature and contents of this policy or as to what risks it covered; except making a mere averment in the plaint that defendants did not deliver the policy to plaintiffs, coupled with a statement that plaintiffs did not even know if the goods were insured at all, no statement was made in the plaint nor any evidence given at the trial or now to connect the damages claimed in the plaint with the non-delivery of the policy. The policy is not before us; the plaintiffs have not attempted to give notice to the defendants or get it produced before us even now. No evidence has been given to show that the damages claimed in this case are such as could have been recovered from the Insurance Company under the policy and which the plaintiffs were prevented from recovering on account of its non-delivery by defendants. It is not possible to say on the evidence by whom or how the slackness in weight and the damage were caused to the bags in question and whether such loss is covered by the Insurance; nor is there any evidence to show that plaintiffs suffered any other damage on account of the non-delivery. No doubt, the contract, Exhibit A, being a C.I.F. one, under which the defendants were charged with the costs of the Insurance (see also the evidence of Scoones--Exhibit III), the policy should have been given to the plaintiffs if they asked for it. But the non-delivery has not been proved to have led to any damage.
15. Our findings on the points referred to us are, therefore, as follows:
1. There was acceptance of the goods by the plaintiffs within the meaning of that term as used in Section 118 of the Contract Act.
2. Notice is not proved to have been given to the defendants; and Binny and Co. were not defendants' agents. Notice may have been given to Binny and Co., as agents of the B.I.S.N. Co.
3. The defendants were bound to deliver the Policy of Insurance when asked for but on account of their failure to do so, it is not proved that defendants are liable to pay any damages to the plaintiffs.
16. The Civil Revisions Petitions coming on for hearing after the return of the findings from the lower Court, the Court delivered the following
17. The petitioners do not appear. The findings are accepted and these petitions are dismissed with costs.