1. The question raised by this second appeal is whether the purchaser, i.e., the 1st defendant is liable for the price of Rangoon rice shipped to him in pursuance of the instructions given by the 2nd defendant. The facts are that the 2nd defendant, as the agent of the 1st defendant who carried on business at Honnavar, instructed plaintiff at Mangalore to send to the 1st defendant 101 gunny bags of Rangoon rice by loading them in the 'Machva.' This instruction is referred to in Exhibit A, dated 1st May. On the 4th May the plaintiff shipped 101 bags of rice on board the 'Machva' to Honnavar. No letter of requisition was given to the, Captain of the ship instructing him to deliver the goods to the 1st defendant, the purchaser, but the plaintiff sent his servant in advance with the letter, Exhibit F, to the 1st defendant, dated 4th May, in which occurs the following passage: 'As soon, as they reach you, you should obtain them and write to that effect. The rate, description and ankda thereof will be communicated to you later on. As there is a great urgency for money you should pay Rs. 700 to Mr. Venkatesa Prabhu, the bearer of this letter.' On the 7th May, there was a storm in Mangalore harbour, the ship was stranded and the rice was damaged and had to be sold at a considerable loss.
2. The question to be considered is, which of these persons is to bear the loss representing the difference between the contract rate and the rate at which the damaged rice was sold. The Courts below have held that the loss must be borne by the plaintiff, on the ground apparently that as the vendor shipped the goods without indicating the consignee to the Captain and desired that the rice should not be delivered until its price has paid, it could not be held that the property in the goods passed from the vendor to the purchaser. It is suggested that in the Indian Law the position is different from that under the English Law. It is quite clear in English Law that the passing of the property will be governed by the intention of the parties, and that the rules laid down in Section 18 of the Sale of Goods Act for the determination of what the intention of the parties is are not to override the intention of the parties, if that intention is otherwise clear. It is suggested that in India, the law is different and whatever be the intention of the parties in fact, the Statute lays down definite rules in accordance with which the property passes at the time and in the 'circumstances prescribed in the rules. That appears to be the view taken by the Calcutta High Court in the case of Brij Coomaree v. Salamander Fire Insurance Co. 32 C.k 816. It is not necessary for the purpose of this case to decide whether this is the true construction of the Statute or not, because in this case there is no evidence that the intention bf the parties, i.e., of both of them was that the passing of the property should not follow the ordinary course. In the ordinary course, as a result of Section 83 and Section 91 of the Indian Contract Act, property would pass - on shipment. When the 2nd defendant instructed the plaintiff to sell him rice and send it on board the ship, he must be taken to have proposed to the plaintiff that the property should pass to the purchaser upon shipment. That was the offer and plaintiff accepted it by shipping the goods and the acceptance was not made subject to the condition that plaintiff should reserve to himself the right of disposal until the price of the goods was paid.
3. On these grounds we hold that the property passed as soon as the goods were shipped and the loss must fall on the 1st defendant. We allow the appeal with costs in this Court and dismiss the memorandum of objections.