1. This is a suit to recover damages for an alleged breach of warranty as to the quality of 6,000 kutcha bales of jute purchased by the plaintiff from the defendants. There is no dispute as to the contracts which are set out in the plaint: the only dispute is as to the quality of the goods. The jute was to be of the standard quality of a certain mark, T.S.N./N2, and this, admittedly, means that each bale was to contain 40 per cent, of what is known as Hessian warp. The sole question is whether the bales delivered did contain that percentage of Hessian warp and tins is a question of fact. The jute was delivered by the B defendants, and immediately after delivery the plaintiff complained that the jute was not up to the standard quality of the mark, and asked the defendants to send down a representative to inspect it. Some correspondence then ensued: the plaintiff suggesting a survey and the defendants proposing an arbitration by the Bengal Chamber of Commerce; the plaintiff declined the latter offer, as he was entitled to do, and I regret that the defendants' agents should have thought it necessary to make the imputation they did against the plaintiff in the letter of the 27th November 1900. The price paid for the whole of the jute, including 1,000 bales, as to which there is no dispute, was about 1,50,000 rupees. The plaintiff then appointed two surveyors to examine the jute, and the defendants sent down two gentlemen to 'watch' the proceedings on their behalf. I will deal in a moment with what took place on this survey and subsequently.
2. Before examining the evidence, I desire to deal with two points, which are prominently dealt with in the judgment of Mr. Justice Stanley. If by his observation the learned Judge intended to convey that, before recovering damages in a case of this class, the plaintiff was bound to examine each of the 6,000 bales of jute, and, as the result of such examination, was bound to show that in each bale the jute fell short of the requisite standard, I most respectfully differ from him. If such were the usage, it would, I fear, impose a serious clog upon commercial transactions. But it is clear from the evidence that this is not so. Mr. Duncan, one of the plaintiff's witnesses, says: 'I examined 12 bales out of the bulk, which was in the flats there. It is usual to examine certain lots only in making a survey. To take a part of the bulk, to examine a part and make a rep art on that part, we are supposed to take 10 or 12 bales, a sufficient quantity to form a judgment as to what the bulk is;' and further on he says: 'In order to find the average of a whole consignment, it is not usual to examine the whole consignment. To arrive at an average for the consignment, we take a portion for selection. The average of the consignment is taken to be that of the portion selected. We took the quantity which we considered would give us a representative quantity of the bulk,' and Mr. Wallace, the defendants' witness, on being asked 'Do you consider that a test of 12 bales is sufficient for a cargo of 10,000?' says: 'Picked out here and there in the bulk, I should think it was. Selected as these were, I should think it was so.'
3. The other point is that the plaintiff ought to have shown how he had dealt with the jute which was delivered, and whether he T had suffered any and what loss by reason of the jute not being up to the warranted standard. There would have been much force in this contention had it not been that, according to the evidence, the measure of damages, or perhaps, I should say, the method of ascertaining the damages in a case of this class appears to be established and recognised in the trade. It would appear that the buyer is entitled in respect of the inferiority alleged in this case to an allowance of six annas per maund, the rule being to allow two annas per maund for a deficiency of 5 per cent, of Hessian warp. Both Mr. Duncan and Mr. Crichton say so, and Sir Allan Arthur, who is experienced in these matters and who was called for the defendants, appears to be of the same opinion. Mr. Crichton speaks of it as a custom in the trade. Moreover, we have heard no argument from the respondent's Counsel that, if the plaintiff is entitled to damages, the damages as regards the quality of the jute have been assessed upon a wrong basis.
4. Mr. Justice Stanley dismissed the suit, holding that the plaintiff had failed to satisfy him that the jute was not up to the warranted standard, hence the present appeal, and it now becomes necessary to consider the evidence on this point, which is the real issue in the case.
5. Mr. Crichton and Mr. Duncan surveyed 12 bales out of the consignment on board one of the flats, and the survey lasted quite an hour. I agree with the Court below that, as the evidence of these gentlemen is that of experts, we must regard it with every care, though apparently from the evidence of Nahapiet Seth Nahapiet, one of the defendants' witnesses: 'It is not the least difficult to distinguish between the two classes of jute, that is between Hessian and Sacking warps.' And I also agree with Mr. Justice Stanley that no real importance detracting from the value of Mr. Crichton's evidence ought to be attached to the circumstance that his firm was desirous of taking over the plaintiff's agency. Now, Mr. Crichton's evidence is precise, that the bales which he examined were not up to the standard quality, and that they contained only 20 or 25 per cent, of Hessian warp. He tells us how the bales were opened, what he and Mr. Duncan did, and how the jute was examined, and he points out the difference between Hessian warp, Sacking warp,' and cuttings. Nor do I think that in material points he has been shaken by cross-examination.
6. It was urged for the respondent that the survey was defective, because only a portion of, the jute out of the bales which were opened was examined, and that the surveyors could not have arrived at a just conclusion as to the percentage of Hessian in each, bale without examining the whole; but, Mr. Crichton says, they can always judge of a bale by opening half the hanks, and that they can do so accurately; and this view is confirmed by Mr. Wallace, one of the defendants' witnesses, who says: 'From one-third to about half of each bale was opened. Probably more in one or two. I could form an opinion as to whether that jute was up to standard quality or not;' so that it would appear to be common ground between the witnesses on each side that enough of each bale was opened to enable the surveyors to form an opinion as to whether the jute was up to standard quality or not.
7. Mr. Duncan, who also surveyed these 12 bales, says that they examined the quality carefully, and that he did not consider that it was up to the standard quality of the mark; but in order to make sure of his opinion, he determined to have a mill selection taken. His opinion on the survey was that the jute in the bales which wore examined was substantially below the standard quality of the mark by some 15 per cent.
8. With the view to this mill selection, which is, apparently, a much more searching examination than that effected by a survey, ten bales were selected from the bulk of the consignment, five from one flat and five from another, and these were sent to the Budge-Budge Jute Mills with a note to Mr. Batchelor, who was the Manager. Mr. Duncan is an Assistant in the firm of Andrew Yule & Co., who were the Managing Agents of the Budge-Budge Jute Mills.
9. It has been contended for the respondents that it has not been clearly established that the ten bales, which were subjected to the mill selection, formed part, of the consignment to the plaintiff; but I think that, upon the evidence, it is clearly made out that the ten bales did form part of that consignment, and the learned Judge's observations on this part of the case proceed upon that footing. Mr. Pullin, who is employed in the Budge-Budge Mills and who tells us how mill selections of jute are effected, and who examined the jute in this case on the 4th December and superintended the selections, tells us the result of the selection--a result which shows that the bales examined were very far below the standard quality of the mark. No valid reason is shown for impeaching Mr. Pullin's evidence on this point, nor do I think that the fact that the selection was made at the Budge-Budge Mills is sufficient ground for saying that the selection was not a fair or an honest one. It is true that no representative of the defendant company was present at the selection, but this may be attributed to the circumstance that they had previously declined to be parties to the survey.
10. As against this evidence we have that of Mr. Wallace, who is a gentleman of experience in the jute trade, and who, it will be remembered, was sent down with Mr. Brown not to survey, but to watch the survey to be made by Messrs. Crichton and Duncan. He says decidedly that there was 40 per cent, of Hessian warp in the bales which were opened, and this would bring the bales up to the standard quality of the mark.
11. I gather from his evidence that he did not by any means make so careful an examination as Messrs. Crichton and Duncan. Ho does not appear to have handled the jute, but to have stood about and looked on whilst Messrs. Crichton and Duncan were examining it. He, in fact, says it is not necessary to handle it, though the witness, Nahapiet Seth Nahapiet, said: 'Of course, we always handle it to see that it is all right--'a statement from which he subsequently resiled.
12. We have it, then, that, out of the bulk, 22 bales were examined--12 by way of survey and 10 by way of mill selection, with a result showing, as deposed to by Messrs. Crichton and Duncan, that the jute was far below the standard quality of the mark, the deficiency in the Hessian warp being at least 15 per cent. As against this we have only the evidence of Mr. Wallace, whoso examination of the 12 bales on the flat was of the somewhat superficial nature I have described. He says the jute was up to the standard quality. No doubt, there is the evidence of Nahapiet Seth, the Manager of the Mill Jute Department of the defendant company. He tells us how the business of the Company is carried on at Naraingunge. The Company appear to have sent out about 35,000 bales with the mark T. S. N. 2 in the season of 1900, and ho says, speaking generally, that bales of this mark had more than 40 per cent, of Hessian when they wore taken out of the godown and put into the flat. It appears from his evidence that they received complaints from the Budge-Budge Company about certain jute they had sold to that Company, and that the jute complained of was exactly the same class of jute as that sold to the plaintiff, and that they had made an allowance in respect of that complaint. I do not think that this gentleman's evidence as to the quality of the jute generally can prevail as against the evidence given as to the quality of the jute in the specific consignment to the plaintiff, or can or ought to prevail as against the direct evidence in this case as to the result of the examination of the 22 bales, and especially as regards the ten bales which were subjected to the mill selection. I have no desire to make any imputation upon the Company in this matter: I have no doubt that every care was taken in this case by them to see that the jute at their depot at Naraingunge was up to the standard quality, but it is not always easy to avoid a mistake being made, and I think that in the case of this particular consignment the plaintiff has made out that the jute was not up to the standard mark.
13. It is said in the judgment appealed against that from the manner in which the plaintiff must have dealt with the goods, he must be in possession of evidence as to the quality of the entire bulk other than that furnished by the survey of the mill selection, and, as ho has kept back such evidence, his suit should fail. I do not think that that is so. There is nothing to show that the plaintiff must have dealt with the goods in the manner suggested, and there is no reason for thinking that he has kept back any evidence as to their quality.
14. In my opinion, then, the judgment of the Court below must be reversed; and as no question has been raised before us as to the amount of damages for the breach of warranty as to the quality of the jute, there must be a judgment for the plaintiff for the amount claimed except the claim for the survey fees, and he must have his costs in both Courts.
15. I am of the same opinion. I only wish to add a few words with reference to one of the questions raised in the case, namely, whether in a suit for damages by a purchaser of goods, on the ground of the goods being below the guaranteed standard of quality, it is necessary for the plaintiff to prove the alleged inferiority in quality by an examination of the entire bulk, or whether an examination of a fair number of samples taken from different portions of the bulk is sufficient for the purpose.
16. The learned Judge in the Court below has held that it is necessary to examine the entire bulk, and that it is only in exceptional oases, such as those 'in which the plaintiff had no opportunity of examining and testing the bulk,' that the Court would be justified in drawing an inference as to the quality of the bulk from the quality of the sample. With all respect for the opinion of the learned Judge, I must say, I am unable to assent to it. It demands an amount of evidence, which it will be highly inconvenient, if not wholly impracticable, to adduce in cases of large transactions like the present. Nor is such evidence considered necessary in the ordinary affairs of life.
17. No doubt the plaintiff in a case like this must prove that the goods are of inferior quality as alleged. But the question is, when may a Court hold that the fact of such inferiority in quality is proved? Section 3 of the Evidence Act, which in this respect only lays down a rule of common sense, says: 'A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.' Now, if after examining a fair number of samples taken from different portions of the bulk, it is found that the samples are all of inferior quality, the probability that the bulk is of the same quality is so great that every prudent man would act upon the supposition that it is of such quality, and, if that is so, the Court ought to hold that the fact that the goods are of inferior quality is proved in such a case.
18. I agree with the learned Chief Justice, and, I think, speaking for myself, that, if regard be had to the manner in which the case of the defendant company was put in the written statement, the plaintiff might well have supposed that the issue which it was intended to raise for trial was, whether upon the results of the survey, and judging from it alone, the jute supplied was of the quality contracted for. So far as my experience goes, it would be unusual and contrary to the practice of the trade to require a more exhaustive test than that which was applied in the present case, and there is nothing in the written statement that I can perceive to suggest to the plaintiff that, an adequate survey having been made, he would be called upon to adduce evidence bearing directly upon the quality of the consignment as a whole. That the plaintiff's survey was sufficient according to the understanding of mercantile men, for the purpose of determining the quality of the bulk, is apparent from the evidence on both sides.