1. In this case the defendants who are two gentlemen who live at Aden and who apparently also own ships, sent the plaintiff to Calicut, as their agent, to procure a ship's mast and certain other things and ship them at Calicut to be taken to Shermokkala. For some reason, quarrels arose between the parties and the plaintiff finally sued the defendant in the Calicut Court for his commission.
2. The argument put forward in the first instance by the defendants is that there was no jurisdiction in the Calicut Court, because they said that Calicut was the seat neither of the lex fori nor of lex loci contractus. It appears to me that there is ample evidence in the probabilities of the case and the whole admitted relation between the parties to show that the plaintiff's duty was not to guarantee that the goods would reach their destination in Arabia, but he had performed his part of the bargain, when he procured the goods and got them on board a boat, at Calicut, bound for Arabia and it seems to me that the argument of lack of jurisdiction entirely fails.
3. The next point is, as to whether the defendants should be given an opportunity to adduce their evidence--the learned Judge has ordered it and that part of his order has not been challenged--and, whether the defendants should be allowed to raise their counter claim, connected with the main object, for which they wished plaintiff to concern himself, on their behalf, namely, procuring a ship's mast. The defendants are prepared to say, as I understand them, that they never got the mast and that the plaintiff was guilty of negligence, in failing to procure and ship the mast, which landed them in heavy damages, because they bad to buy a mast on the spot at an enhanced price. It is perfectly true that, when they first filed their written statement they said, after stating their grievances, about the failure to send the mast, they would not trouble themselves about it in those proceedings, but that they would bring a separate substantial suit as plain-tills to recover damages, for what has happened; but they saem to have thought shortly afterwards that that was a mistake and that they had better seek redress in respect of the mast, in this suit itself. The learned Judge refused to allow them to counter claim, in respect of the mast, and so far, they having taken the definite attitude about a separate suit, we think he was quite justified in doing so, if he was so minded ; but we do not think he ought to have precluded the defendants from the lesser remedy of treating their damages in respect of the transaction about the mast, as a set-off against and by way of defence to the plaintiff's claim. Therefore, if the written statement of the de-fondants is amended, in the way that I am going to read to, we think that the defendants ought not to be shut out, from proving, if they can, that they suffered damages in regard to the mast. The paragraph of the written statement (paragraph 17) will run thus :
Though the defendants have sustained damages to the extent of Rs. 5,500, the difference between the price which they paid for a new inset and the cost, if the plaintiff has bought one, and sent it to them, as undertaken, they crave leave only to set off their damages, in extinction or in diminution of the plaintiffs claim and do not seek to counter claim in respect of the same.
4. On that statement as amended, the defendants will be allowed to prove their damages by way of defence at the trial.
5. The defendants have failed in the main point in this appeal and they have been granted an indulgence to which perhaps it is doubtful, whether they were perfectly entitled, and, therefore, they must pay the costs of this appeal in any event,
6. I agree.