1. Beasley, J., described this as one of the most mysterious cases he ever had tried before him. As it unfolded itself, at the trial, it may well have been so, but he, I think, has so completely solved the mystery himself that it is a mystery no longer. The facts necessary for our purposes can be summarized briefly. The plaintiffs and the defendants are both dealers in silver, the plaintiffs' place of business being in Madras and the defendants' place in Salem. The defendants from time to time telegraphed to the plaintiffs asking thorn to send them consignments of metal for the purpose of their business in Salem and they had done so for a number of years. It is in evidence that 22 such transactions relating to consignments of silver had taken place within the last few years. In each one of them, the procedure was the same. The plaintiff's on receipt of the telegram of request bought silver in the Madras market in the form of bars or ingots, cut them up and then packed them, when so cut up, into a wooden box which was then wrapped in a gunny bearing the address of the buyer at Salem and sealed in several places with the seller's seal. The package was then taken by one of the plaintiffs' servants to the railway station and handed over to the railway company for despatch by train to Salem. In every single case on record, the boxes were sent on owner's risk-note which of course is the cheapest rate available and protects the railway company from liability in the event of loss in transit. In this particular transaction, a bar of silver was ordered by the defendants by a telegram of 8th April 1926, Ex. O in the case. The plaintiffs went into the market forthwith and bought a bar and sent it by a reliable servant, on its being packed and put in a gunny wrapper, to the station to catch the evening mail. In the ordinary course, it would reach Salem at about 1 O'clock in the morning, the train leaving Madras at 7-30 or 9. p.m. and could be for some hours in the parcel office at Salem awaiting despatch to the consignee, the defendants, when the business hours began.' A parcel was in fact taken by the railway carting contractors and tendered to the defendants at their place of business at about 9 O' clock. The parcel 'was rejected by the defendants as being obviously not what was said to have been despatched as it was far too light. The box in the plaintiff's place of business in Madras weighed 39 seers, roughly equivalent to 92 lbs. Avoirdupois. There were other signs of suspicion on the enclosing gunny. The defendants having rejected the parcel, the plaintiffs declined to have anything to do with it either, and it remained in the custody of the railway company unopened until the trial of the suit brought by the sellers when it was opened in the presence of Beasley, J., in Court.
2. There can be no doubt if the seller did deliver the box to the railway company in Madras with a 'silver bar in it there must have been a substitution en route, because that which was opened in Court, and which undeniably was that which was tendered to the defendants in Salem, contained some worthless scrap iron. Beasley, J., very carefully threshed out the whole evidence and came to the conclusion that somebody made up a dummy box to look as nearly as possible like the box that was expected and had managed to substitute it for the box that came by train while it was in the parcels office at Salem, taking away the real box containing the bar of silver and leaving the box of scrap iron in its place. I entertain no doubt that Beasley, J., was right in supposing that infinitely the most probable thing is that that substitution was made in the parcels office at Salem. It also follows that it must have been made by one of the employees of the defendants as it obviously had to be made by some one who knew of the despatch and expected receipt of the box. He also pretty clearly must have got hold of a gunny which had been used in the transit of a former package from the plaintiffs to the defendants. But, it is not really necessary to speculate as to how and where the loss took place, provided we are satisfied that the real parcel was in fact delivered into the hands of the railway company at Madras and that the substitution did not take place before that. The evidence of the weighing clerk at the Central Station (which the learned Judge accepted) where he noted on the bill that the weight was 39 seers, is conclusive as to this and I entirely agree with the learned Judge that the notion that the substitution had taken place in Madras before despatch is altogether untenable.
3. If that be so, prima facie the plaintiffs have made a good delivery to the defendants, because they had given delivery to the carrier, namely, the railway company, and if this is effectively done, the loss rests upon the buyer. These goods were sent at owner's risk which after despatch on transit means, of course, the buyer's risk. If that was done which was contemplated to be done by the parties to this contract, it is quite obvious that both these parties contemplated that the goods would be delivered to the railway on the terms of an owner's risk note. That was the uniform course of business between the parties. The defendants never attempted to suggest that they wanted additional precaution, a rate of freight covering insurance, and the course of dealing covering 22 transactions over several years is as good as to say that that was the contract between the parties as much as if it had been embodied in a written document covering this particular consignment. Notwithstanding this, it is solemnly argued that the buyer is protected by the terms of Section 91, Contract Act, Act 9 of 1872, which runs as follows:
A delivery to a wharfinger or carrier of the goods sold has the same effect as a delivery to the buyer, but does not render the buyer liable for the price of goods which do not reach him, unless the delivery is so made as to enable him to hold the wharfinger or carrier responsible for the safe custody or delivery of the goods.
4. I am no admirer of the Contract Act, but I cannot believe that it was seriously intended to impose a legal restriction on the freedom of buyer and seller to make their own arrangments as to the terms on which the goods were to be delivered to a carrier for transit from seller to buyer. The section is only meant and could only be meant to apply to cases where there is no specific arrangement or course of dealing between the parties that posits the absence of any such condition of liability against the carrier being secured. I am unable to sea that the defendants' contention on this section is even arguable. The result is that the plaintiff's suit was well-founded and the appeal must be dismissed with costs.
5. It is lamentable to think that these foolish people by each in turn refusing to examine the parcel that was tendered at Salem effectually prevented the railway company or the police from having any real chance of tracing the theft and recovering, as they might have done, the stolen goods or any portion of them. They have also spent a very great deal more money than the original value of the goods in this litigation. The appeal is dismissed with costs.
6. The effect of the contract between the parties that the goods were to be sent at owner's risk would be I think, that, notwithstanding the provision in Section 91, Contract Act, the delivery to the carrier held good as a delivery to the buyer.
7. It is argued on the contrary that the parties by agreeing that the carrier should not be held responsible, agreed, with an eye to the terms of Section 91, that the delivery to the carrier should not count as a delivery to the buyer. But if that were so the seller who would be undertaking the risk of loss in 'transit, would charge the buyer the cost of insurance. No such charge figures in the dealings between the present parties, and therefore I have no doubt that they intended the buyer to carry the risk, and the delivery to the carrier at owner's risk to be a delivery to the buyer.