1. In this special appeal it has been urged that upon the facts found, the ownership of the property, and consequently the risk passed to the defendants; that consequently, even if there was any breach of the warranty, the defendants could not rescind the sale under the contract law; that the defendants are, therefore, liable. An objection has also been taken to the finding of the lower Appellate Court, that it is not clear. It has been said that the District Judge having held that the sale was by sample, should have determined whether the quality of the rice in golah No. 4 was equal to that of the sample; instead of determining that question, he holds that the defendants brought only 'Chaitro Panchi Padi' of good quality, and the rice was not of that description.
2. As regards this last contention, I do not think there is any force in it. What the District Judge holds is, that although the sale was by sample, yet having regard to the contract price and the prices of rice ruling in the market at the time of the contract as established by the evidence, it may be inferred that there was an implied warranty as to the quality of the article sold being of the nature mentioned above. There is no error of law in this part of the judgment of the lower Appellate Court [see illustration (b) of Section 113] We must therefore, dispose of the case taking this as a correct finding.
3. But I am of opinion that, notwithstanding this finding in favour of the defendants, the District Judge is not right in dismissing the suit entirely.
4. I am of opinion that, under Section 78 of the Contract Act, the ownership in the rice passed to the purchasers, because the contract for the sale was 'of ascertained goods,' the latter having paid the earnest-money and taken delivery of a portion of it. It has been pressed upon us that, under Section 81, the sale did not become complete, because the rice remained to be weighed. This contention is not valid, because, so far as the vendors were concerned, nothing remained to be done on their part to the rice sold 'for the purpose of ascertaining the amount of the price.' The rice was to be weighed for the satisfaction of the purchasers [see the illustration (b) of this section.]
5. The ownership in the rice sold, therefore, passed to the purchasers, consequently, under Section 86, risk of loss also passed to them.
6. It is true that, under Section 107 the plaintiffs might have sold the rice at the risk of the defendants after the latter had refused to fulfil the contract. But I am of opinion that the omission to take that course does not affect their right to recover the balance of the purchase-money.
7. Then the question is whether the finding regarding the breach of the warranty as to the quality of the rice sold is any answer to the suit. I am of opinion that it is not, except for the abatement of the contract price.
8. Upon this point our attention was called by the counsel of the parties in the course of the argument to Sections 117 and 118$. But it seems to me that these sections, except the last para. of Section 118, have no application to the facts of this case. Section 117 refers to sale of a specific article; and Section 118 to the sale of goods which, at the time of the contract, were not ascertained, or not in existence.'
9. In this case the sale having been completed, and the ownership with the risk in the rice sold having passed to the purchasers, the latter could rescind the sale only if the breach of the warranty would bring the case within the provisions of Section 19 of the Contract Act. The defendants' case possibly may be brought within the purview of that section on the ground that the 'agreement' was caused by misrepresentation on the part of the plaintiffs as defined in Clause 3 of Section 18. But I think the defendants are precluded from resting their defence upon Section 19 by reason of its first exception. Because the defendants reside near. Kallygunge, and might have discovered 'the truth with ordinary diligence.'
10. For these reasons, I am of opinion that, upon the finding of fact, to which the District Judge has come, he is not right in dismissing the suit entirely.
11. The defendants are at the utmost entitled to claim abatement of the contract price upon that finding. The last para. of Section 118 supports this view, the law as laid down in Addison on Contracts, p. 196 (sixth edition) is also to the same effect.
12. The Subordinate Judge notices this point, but declines to go into the question of abatement, because it is not claimed in the written statement. But the facts upon which this point arises are stated in the written statement. The District Judge has gone not at all into this matter. I am of opinion that the defendants are entitled to have this question decided in this case.
13. For the foregoing reasons the decision of the lower Appellate Court must be reversed, and the case remanded to that Court for the determination of the question of abatement in the contract price. As the defendants have established the right to such abatement, I think the District Judge should give them an opportunity of establishing the actual amount of abatement by fresh evidence, if the evidence already on the record be found to be insufficient for the determination of this question. But of course if defendants are allowed to adduce fresh evidence, leave must be given to the plaintiff's to produce counter-evidence upon the point. Costs to abide the result.