Ameer Ali, J.
1. This suit arises out of a very elementary trade dispute. It might have been decided by any trade arbitration in perhaps a few hours at a cost of less than Rs. 100. As it is, the parties quite rightly preferred to have their disputes decided by this Court which means decided by a system involving the maximum expense and the greatest uncertainty of result. However the case has been conducted in the best tradition of our system and with ability specially by counsel on behalf of the plaintiff who had certain initial difficulties to contend with.
2. It would still remain a very simple matter but for certain considerations which I would enumerate. The first is the matter of pleading; the second is a matter arising out of the nature of the trade in question, namely the manner in which this sample or the alleged sample was dealt with, the third the manner in which the sample was compared with bulk. These two matters would be of course one with which expert arbitrators would be competent to deal, the trade in question being one where certain system or methods of conducting business have become specified or recognised. The fourth is the fact that counsel for the defendant has been able to rely on a certainly attractive point of law. I have not referred to the fact that there is a direct conflict of evidence between two respectable merchants. That is a matter which I have to deal with in the normal course.
3. The few facts I state are as follows: The plaintiff and the defendant had business in shellac before, but in April 1934-and I am now stating the undisputed facts-the plaintiffs who are commission agents or local representatives of certain up-country traders had four lots of old shellac in their godown. They are referred to respectively as 124 bags, 157 bags, 22 bags and 254 bags. A broker, Routhmull, was authorized by the plaintiff to negotiate the sale. So much is common ground. He approached the defendants buyers and in April 1934 on the 30th the sale was concluded in respect of 124 bags and on the 7th May, if my recollection is right, the contract was concluded in respect of the 157 bags. This is the lot in dispute. It is admitted, or at any rate, established that between the first enquiry by the broker and the respective dates of the sowda, certain samples of four lots were sent by the buyers to Messrs. R.B. Briggs & Co. for analysis. The analysts' report has been put in and proved. The respective results, I will explain in greater detail hereafter, were 10.05 impurities for 124 bags, 13.05 for 157 bags, 20.06 and 36.26-a very wide range of variation 124 bags were delivered and retained. They have been paid for. The 157 bags were delivered on the 13th May. The weighment, which I shall have to describe in greater detail, took place on the 16th. On the 20th or 21st the buyers sent a sample of the bulk to Messrs. Briggs & Co., with a result showing 21'6 impurities, and on the 24th they sent a further specimen which showed 24.75 per cent impurities. I have advisedly used the word specimen for the following reasons: The story of the defendant is that Routhmull brought the sample and the purchase was by sample and that the goods in the godown were never inspected. The sellers' story is that one of the defendants or rather his brother came and inspected the goods in the godown and himself took away specimens for the purpose of finding out what price he should offer. In the former case it would be what is technically known as a sale by sample and in the latter case it is not. In both cases the goods sold were 'ascertained' or 'specified.' That is a matter which relates to the point of law argued before me. That then is the first main point on which there is conflict of evidence. The second is what happened at the time of delivery? The sellers say that the goods were weighed and allowance was fixed for what is called 'refraction,' that the buyers accepted the goods without any objection, that bills were sent, they promised to pay, but no payment having been made the solicitor's, letter was sent to them on the 6th June. The buyers say that objection was raised at once, or at any rate on the 16th, that the weighing, etc., was provisional, that the sellers requested that a further and more representative sample of the bulk should be sent for analysis and agreed to take back the goods if it was not successful, agreeing further, after they had heard the result, actually to take them back. The letters written by the sellers' attorney proceeded upon the basis that the sale was a sale by sample; so does the plaint. That brings me to the first matter of difficulty which under our system of law confronts me.
4. Mr. Ghose applied to me when the suit was called on for amendment in order to remove from the plaint that portion which described the sale as a sale by sample. It involved very little verbal alteration. I refused the amendment, but as the evidence of the nature of the transaction was given in chief by Jugal Kishore, the defendant, I allowed cross-examination of this point and thought it right to hear the parties, I mean the evidence on both sides on this point. Having considered the whole matter again I am still of opinion that from a practical point of view I was right in refusing the amendment, though from a theoretical point of view I was not. I will explain what I mean. Under the English system of pleading there is no doubt that the plaintiffs might have simply pleaded goods sold and delivered. The defendants might then have pleaded that the sale was by sample, therefore condition broken. The plaintiffs then might have replied 'acceptance' and so forth. The trouble is that in this Court at any rate we do something which is neither quite English nor quite anything else. Our plaints are apt to be statement of facts but generally misleading statement of facts, and according to the counsel for the plaintiff that was so in this case. My own view is that we ought either to stick to the English system of pleading or insist upon a correct statement of the main facts.
5. In my experience we have as a rule set out the nature of the contract under which goods are sold and delivered, and speaking for myself I think it is not by any means undesirable that that should be done. The practical difficulty, about allowing an amendment in the circumstances I have mentioned, is it would have meant an amendment of the written statement, different class of evidence as to the nature of the contract and so forth, and normally would involve question of costs and adjournment. One of the reasons upon which I was asked to grant an amendment was that it is quite likely that the attorney misunderstood the client and that even the letters were due to the misunderstanding between the client and the attorney. That is a matter which is often pressed upon and I may say at once I perfectly well realise the conditions. The picture of a valuable client interviewing a solicitor in seriatim is not comparable to that of a Marwari non English speaking client seeing his solicitor in Old Post Office Street. Things are done in a hurry, clients are not always listened to. Again although attorneys may be negligent or mistaken I am unable to presume either negligence or incompetence. Clients realise that where their attorneys write letters and give instructions for pleadings it is a matter which may gravely affect their case. There must be greater care in putting all the facts before counsel draws up the plaint. According to counsel for the plaintiff in this case a plaint was cast upon the file and sought to be amended after many days, nothing got ready, no statement taken till the very last moment. I think the trouble arises by reason of the fact that the attorney's profession seems to think that all that has got to be done is to get the plaint on the file and some sort of evidence afterwards. Junior counsel should refuse to draw up the plaint until he gets full statement of the facts. I know that allowance will have to be made, but especially in commercial matters I must presume that the attorney gets instructions from his client and that the client understands the letter written on his behalf. However I have considered the whole case notwithstanding that I disallowed the amendment.
6. The questions therefore in this case are as follows: (1) Was it a contract of sale by sample? (2) Were the goods equal to sample? (3) Were the buyers entitled to reject-this depending (a) on acceptance and (b) upon the point of law? There is incidentally a question of the supplementary contract set up by the defendant, agreement to take back the goods in the event of the analysis proving unfavourable. The defendants did not ask for damages in the event of losing on the issue or the right to reject, but as indicated during the hearing, had they succeeded on the other points and lost on this, I would not have shut them out from that right to enquiry. I deal first with the question of contract. I put upon the defendants the onus. It makes no difference in this case. For the sellers various considerations have been put before me apart from the oral evidence upon which they say I should find that the contract was not as is alleged by the defendant or as was originally stated in the plaint. The first is the fact that the man called Koramull is not called. The buyers have said that Koramull was associated with the broker Routhmull. The sellers said that he was not. He has not been called and Routhmull is dead. I am asked to draw an unfavourable inference from the absence of Koramull. My own feeling is that in this case this makes very little difference. We have the two principals in the transaction. I have had the invidious task of deciding between the two, the evidence of the two. The plaintiffs again rely on the non-production of the broker's books. Again in this connexion the fact that the sample was wholly and intentionally destroyed in a certain way is used to show that the intention was not to sell by sample.
7. It is said that the evidence of Jugal Kishore, even if it is accepted, fails to establish a sale by sample. On the other hand there is the fact itself that speck mens were taken, were analysed, and the bulk was analysed. There is the evidence-how far it is admissible it is another matter-that sales by sample took place in the market. I omitted to mention that the sellers' sowda book or the book containing the sowda was produced at the trial containing the entry relating to the contract in dispute. It was not disclosed and I must again say that if books which are not disclosed are used to support the evidence of the person who wishes to produce them the parties must not complain that the Court or somebody else is suspicious. Attempts were made to prove that the book or the entries were forgeries. I do not see that it is necessary for the defendants to prove that it is a forgery, nor do I intend to hold that it is The entry merely shows that the sale was of ready goods; so it was. The question is, was it a sale of ready goods by sample? Upon that point the book throws no light.
8. I proceed upon the basis that it might well be and might just as well not be. It all depends upon whether Routhmull had the sample or the story of Jugal's brother is true. Mr. Ghose suggested that even if I do not believe in the brother, and I should find that Routhmull had the sample, that I should come to the conclusion that it was not a sale by sample. But my view is that substantially I have to decide between these two stories and that depends really upon my estimate of the evidence of these persons. As I have said both appeared to be respectable merchants. Chouthmull is an elderly man and Jugal Kissore, the middle aged man, certainly is very intelligent. Chouthmull is an old-fashioned man, who, I think, is slow of understanding, a fact relied upon by his counsel in connexion with the question of the letters. As counsel for the plaintiff has often reminded me, this is a Court of law and I have to decide upon the evidence and upon the impression I form as to the way in which the witnesses gave evidence. That impression may well be wrong. I think Jugal Kishore gave his evidence extremely well, at any rate, upon all the points other than the question of weighment (that I will deal with separately) by which I mean that it was difficult to appreciate not that it was given in less convincing manner. He did not prevaricate, and he gave straight, clear and unequivocal answers. He seemed to me, in other words, to be a witness who was far above the ordinary standard of witnesses in the manner of giving evidence. Chouthmull, being unintelligent himself, suffered from the difficulty as of having other peoples' brains behind his case; whether those of his clerk or not does not matter. The main question is the story about Jugal's brother.
9. In the application for amendment it was necessary to say that somebody had gone to inspect the goods, and in that affidavit 'the defendants' are mentioned. The name of the man or men who went was not stated in the affidavit. Then comes counsel's cross-examination of Jugal Kishore. So far as I remember the final question as to Jugal's brother was not put until after I had pressed counsel to put that question definitely. That is my recollection. But in any event the impression I obtained was that counsel was feeling his way very carefully. Then Chouthmull came into the box. He was in this difficulty of having to say he knew who the man who came was while that name had not appeared before. Hence the explanation that in the train he asked the man who he was and the latter said that he was Jugal's brother. On this part of the story I am bound to accept the the evidence of Jugal. I should have mentioned and it is only fair to do so, that the story of Chouthmull is supported by bis jemadar, a good looking and intelligent retainer of the name of Gyadin Prosad, who, I have no doubt, is a faithful and useful servant. He gave his evidence well. There is no doubt about it. He is very much more intelligent than his master. On the evidence that I have heard I should have found in this case that the sale was a sale by sample.
10. The next point that I shall deal with is the question whether the bulk corresponds with the sample-the question of quality. Now two points are taken by Mr. Ghose. Both are ingenious and have to be considered. The first-is and this has also a bearing on the question of contract of sale by sample, that there cannot in law and in fact be a sale by sample when no sample is in existence. I think he somewhat impairs the logic of this argument when he concedes that it may be so if a sample was accidentally lost or destroyed. His point is that where a sample is deliberately destroyed there cannot be a sale by sample. There I disagreed. In my view, provided a specimen has been in existence on the basis of which an offer was made and the offer was accepted notwithstanding the disappearance of that specimen, the sale would remain a sale by sample. The common sense of it or the business sense of it is this: in great many modern transactions the seller will offer a sample of certain goods which cannot be judged or compared with the bulk by mere physical examination. What therefore is done is that the sample or portion of it is examined and the analysis obtained. The quality is in the analysis. That must happen, and if that sale is in fact made in relation to the specimen supplied, my view is that notwithstanding the sample is transformed into a certain formula the sale would retain its original nature. There may be a difficulty if the sample is not retained. Mr. Ghose's point in answer to this is well, at any rate, the sale would not be a sale by sample: it might be a sale with a specific condition or express condition as to formula. I quite agree. It might. In each case we have to determine what in this particular transaction or in that particular trade is the way in which business is done. It seems to me on the evidence in this trade that when the offer is made on the basis of a specimen and accepted, the sale is made upon that specimen notwithstanding that the specimen is turned into a formula; the offer and the acceptance must be regarded as being made on the basis of the accepted specimen. My view does not bind anybody dealing with any other transaction in respect of these goods or any other goods.
11. The second point urged by Mr. Ghose in connexion with the specimen which I will now call sample, is as follows: It is a point which I am bound to say I did not appreciate during the course of the trial. I do not for a moment say that Mr. Ghose omitted anything, or he is not entitled to make that case before me on behalf of the plaintiff. The question is whether on the evidence as it stands his point is good. It is this: the contract was undoubtedly for stick lac and counsel for the seller has throughout emphasized the distinction between stick lac and seed lac. In cross-examination on the result of the analysis he made this clear and his point now again is two-fold. He says first of all that this analysis is for one thing and the contract is for another. There has been no test at all. His second point is that even if there has been a test there has been no proper test and for this reason. The contract was for stick lac and you have taken analysis of the samples of a residue or a portion of the goods supplied to you. If you would analyse the whole the result would or might have been different. There is therefore the unknown factor both in the case of the first analysis and second analysis, i.e., the impurities in the bulk which you did not send to the analysts. Of that there is no evidence at all.
12. In this connexion, with some regret I shall have to state, probably inaccurately, something about lac which must be perfectly known to everybody in the trade, but which I can only know from the evidence before me: The goods sold were what I shall call 'lac.' As it comes into the godown, at any rate in a case like this, it is a hard reddish substance deposited round certain twigs or sticks to which it adheres. In this form it is known as stick lac. The commercial substance is only the hard deposit, and only the hard deposit is soluble in alcohol. It, therefore, goes through various stages before it is sold to the user or to the merchant. The removal of the actual 'stick' under which I include dust and other impurities as done by sorting, sifting, and washing. When that is done it is called in the trade seed-lac: but that is not all, and as the residue of lac after the stick has been taken out also contains impurities, impurities in the deposit itself, may be due to the age of the substance and oxidization or partly to that. Now, it is only possible to discover and separate the latter class of impurities by chemical means. What was done in this case was to take out the 'stick' and send the residue, called in the trade seed-lac, for analysis, in both cases, i.e., for the analysis of the selling sample and the analysis of the bulk. There is evidence (again I am not dealing with the question of admissibility) that other persons in the trade follow this course: the evidence of Mr. Jordan. I do not have to rely upon him. My reasons for the decisions are as follows:
13. It occurred to me early at the trial that the way in which the washing was done might have an effect upon the fairness of the comparison. That was not the line taken by counsel and as far as I can see the evidence of the analyst disposed of that suggestion. I did not realize or appreciate that the other point which I have mentioned, the point that in neither case was the quantity of stick analysed, was a point relied upon, and so I have not the advantage of any assistance from the experts or the analyst on that point: But we have these facts, that the method I have mentioned was in fact adopted in this case. If the evidence of Jugalkishore is to be accepted, that course was not objected to by the seller. We have the evidence of Mr. Jordan that it is done in other cases. Above all we have, and it seems to me to be an explanation, the fact of the other terms of the contract. As I say this is a matter which probably everybody in the trade understands without any discussion at all. We here have to think it out. This contract is what is called Biwli contract. What it means is, if I have understood it correctly, that the buyer, although he buys stick-lac, only pays for the weight of the lac minus the stick. The difference is not ascertained by washing; it is usually ascertained by rough and ready methods of inspection and physical sorting, but the result is that the buyer only buys the weight of lac minus 'stick' or he buys the bulk with an allowance for the 'stick.' It seems to me to be treated more on the basis of quantity. In any event the stick is accounted for, whether by accurate or inaccurate methods. If that is the system (and it appears to be so) what would be the sense of sending anything but the residue, lac minus stick, for chemical analysis? In other words, the matter seems to be taken in two stages, 'quantity' and 'allowance;' quality to be discovered by analysis. Whether I am right in my view of the evidence is another matter. That, I believe, is the way in which the contract is regarded.
14. On the evidence which has been given, including the certificates, the form of which should, I think, be looked at, I find that the goods in suit were not according to sample. There is the evidence, of course, of Jugalkishore, that he might, by inspection, get a good idea in the case of any substantial variation. On the evidence as a whole I arrive at the finding I have mentioned. I now come to the question of acceptance, and this is, in my opinion, a more difficult question of fact because notwithstanding the opinion I have expressed about the way in which Jugalkishore gave evidence, we have here this fact that there was a purja or note given, and there was an allowance made for the weight of stick in some shape or other. The sellers say this was the proper and usual adjustment for refraction; the buyers say it was done provisionally after protest as to the quality of goods.
15. The first sample or bulk was not in fact sent until some days later, and it is quite a possible explanation that the goods were taken in without objection; they were adjusted for refraction or for stick, and then the dispute raised or objection made. The seller goes so far as to say that no objection was raised at any time. That I do not accept. I think objection must have been made before the letter of 6th June 1934. The question is, was it made earlier, because Mr. Ghose argues, firstly, that there was no objection at all, and this process of adjustment amounted to an acceptance, and, secondly, that the goods were kept for an unreasonable time before objection was made; in other words implied acceptance.
16. I have found considerable difficulty in coming to a decision on this point of fact. It is not easy to see why any adjustment, provisional or otherwise, should have been made in view of the complaint and the fact that the goods were to be tested. There was some obvious difficulty about the size of the bags; there were obviously opportunities for disputes that might arise and which it might be desirable to obviate, but I confess I have not any clear view as to why it is necessary to do this at all. On the other hand people do things when they are not essential, and unless I am to disbelieve Jugalkishore on this point I do not think this fact should stand in the way of my holding that an objection was made. There is in the buyer's favour the fact that samples were taken both on the 20th and again on the 24th, a thing unlikely unless there had been some demand from the seller. Of course, there is a possible explanation suggested by Mr. Ghose that these samples were tested really at the instance of the sub-buyer. The decision I give must depend upon the weight to be given to the evidence of these two gentlemen, and having regard to the view I have taken of Chouthmull's evidence on the other point, I think the decision should be in favour of the buyer. I find therefore, that objection was raised; the weighment was not intended as acceptance, and there was a discussion with Chouthmull, and I further think he probably in some shape or other did ask for a further analysis and suggested that he would be bound by the result. Why ultimately he changed his view I do not know. It should be remembered that it has not been suggested and is clearly not the case, that the buyer was in any need of money and could not pay. The market was going up at the time. I think that the buyers rejected because they thought the goods were not up to quality. I find, therefore, in favour of the buyer on the issue of acceptance.
17. The last question is the question of law, and I will deal with it now, although I should like to give it further consideration. The contention is that even in a case of sale by sample, where the contracts is for specific goods the buyer has not, in the, event of the goods being inferior to sample, a right to reject, but only right to damages. It is a point which I have never considered, and if the contention is correct, it will come somewhat as a surprise to the business community. It depends upon Section 13(2), Indian Sale of Goods Act, which is the same as Section 11(1)(c), English Sale of Goods Act, 1893. Both sections purport to enumerate the circumstances under which a stipulation having normally the effect of a 'condition' is reduced to the status of a 'warranty.' In both Acts the sub-section (omitting the irrelevant portions) reads as follows:
Where a contract is for specific goods, the property in which has passed to the buyer, the breach of any condition to be fulfilled by the seller can only be treated as a breach of warranty.
18. The first question is whether this was a contract for specific goods. 'Specific goods' is defined in Section 2(14), I believe the same as Section 62 of the English Act. It is obvious that 'specific goods' is not identical with 'ascertained' goods. 'What the precise nature of the difference is no one has ever been able to discover. There is a note in Halsbury, Section 310, but I do not think it throws much light on the distinction. However, it does not mean goods which have been examined by the buyer, and the goods in this case would appear to come within the category of 'specific goods.' Mr. Ghose relies upon the terms of the section and upon the judgment, especially that of Lord Blackburn in Heyworth v. Hutchinson (1841) 2 Q B 447, where goods, then on boardship, were sold by sample. His contention is that the statute law is a reproduction of the principle of that decision which was stated in the judgment of Lord Blackburn, in these words:
Generally speaking, when a contract is as to any goods, such a clause is a condition going to the essence of the contract; but when the contract is as to specific goods, the clause is only collateral to the contract, and is the subject of a cross action or matter in reduction of damages.
19. That makes it clear that a stipulation which would be a condition of the sale of unspecific goods is in the case of a sale of specific goods, a stipulation having the effect of a mere warranty. Now, if the statute has reproduced the principle of that decision, Mr. Ghose succeeds. The question is whether it has. Mr. Ghose referred me to a passage in Mulla's Sale of Goods Act, 1933 Edn., p. 76 where doubts are expressed as to the effect of this sub-section, and where it is suggested that in the case of a sale by description the stipulation would still have the effect of a condition. Mr. Ghose argues that the case of a sale by sample is covered by this authority and that the statute merely reproduces the common law. On looking through the elementary text-books, in the notes to Section 15, Chalmers' Sale of Goods Act, Edn. 10, I find the following observation:
Mr. Benjamin after reviewing the cases argued that the buyer might always reject the goods if the bulk did not correspond with the sample unless (1) he had finally accepted them or (2) the contract related to specific goods, property in which had passed to him. The Act adopts this view by describing the term as a condition and not a warranty,
and for Mr. Benjamin's argument one is referred to Benjamin on Sale, Edn. 4, p. 936. This argument is not to be found in Edn. 7 of Benjamin, and indeed in that edition the only explanation of this section given is one which appears to be totally inadequate. The question is: What is Mr. Benjamin's view, and has the Act adopted it? Personally I am not convinced that the Act has adopted it for the reason given by Mr. Chalmers, namely that it describes the terms as a condition and not a warranty. That to my mind begs the question, because the section itself deals with 'conditions' and then states how and under what circumstances they are reduced to warranties. There may, however, be other reasons, and I think there are. Counsel for the plaintiffs has been good enough at this stage to hand up the latest edition of Chalmers (1931 edition) in which the note quoted by me does not appear. The question, however, is whether, apart from the reasons given by Chalmers, the Act has in fact proceeded upon the basis of Mr. Benjamin's view, and in order to decide this I think the whole of the argument in Benjamin (Edn. 4) at pp. 936-938 must be read, in particular, the passage:
It is very difficult to understand the reason for the distinction if intended to apply to cases where the specific chattels have never been in a condition to be inspected by the buyer, and where the property has not passed to him.
20. And again at p. 938:
In every one of the cases cited in the books as authority for the proposition that the buyer cannot refuse... acceptance of a specific chattel sold, on the ground of breach of warranty of quality, the contract was a bargain and sale and the property in the specific chattel had passed.
It is submitted, therefore, that the dicta of the learned Judges in Heyworth v. Hutchinson (1841) 2 Q B 447 must be taken as referring to cases of a bargain and sale, not to executory contracts.
22. Now, it seems to me that Section 11(1)(c) of the English Act and the corresponding section of the Indian Act have been framed with an eye to the special case isolated by Benjamin, namely, the case of 'bargain and sale' and that it is for this reason that the clause 'the property in which has passed to the buyer' has been inserted. I do not for a moment say that the section as drafted is clear. It can, for instance, be argued upon it, as has been argued here, that the question whether property has or has not passed depends upon whether the condition has or has not been fulfilled, hence, that the process of reducing the condition to a warranty will remove the obstacle to the passing of property. It is true that this would make the relative clause redundant, but I do not consider this circumstance alone to constitute an insuperable objection to so construing the section. Again, on the other basis that the relative clause constitutes a condition precedent to the operation of this sub-section (i.e., that property must pass irrespective of the fulfilment or otherwise of the condition), it is arguable that the property might pass by other acts at a subsequent stage falling short of complete acceptance. In support of such a view it can be pointed out that the sub-section does not read 'the property in which has by the contract itself passed to the buyer.' I concede, therefore, that it is highly desirable that the sub-section should be couched in less equivocal language. For my own part, having regard to the large volume of modern business done upon sale by sample, I would be glad to see the sub-section omitted. That, however, is a matter for the Legislature. On the sub-section, as it stands, I hold that by introducing the relative clause, its operation is limited to genuine cases of 'bargain and sale,' according to the common law of England. For the meaning of this and for the distinction between a claim founded upon 'bargain and sale' and upon 'goods sold and delivered' it is necessary to refer to the older text-books; in particular, Bullen & Leake Edn. 3, pp. 38, 39, 40:
38. Goods sold and delivered. This count is applicable where, upon a sale of goods, the property has passed and the goods have been delivered to the purchaser, and the price is payable at the time of action brought. This count will not lie before delivery.
39. (a) Goods bargained and sold. This count lies where upon a sale of goods the property has passed to the purchaser, and the contract has been completed in all respects except delivery, and the delivery was not a part of the consideration for the price or a condition precedent to its payment.
23. See also Scott v. England (1844) 14 LJOS(K B) 43 and Forbes v. Smith (1863) 11 WR (Eng) 574 Reverting to the facts of this case, the transaction was clearly not one of 'bargain and sale,' but one giving rise to a claim on account of 'goods sold and delivered.'