1. This rule is directed against the judgment of the Small Cause Court Judge of Bishnupur dismissing the petitioner's claim to damages for breach of contract. The defendant contracted to sell 1,000 maunds of husks to the plaintiff at three and a half annas a maund. He duly delivered 589 1/2 maunds but delayed in the delivery of the remaining 410 1/2 maunds and finally tendered husks mixed with sand of which the plaintiff refused to accept delivery. The plaintiff's contention was that the husks subsequently tendered were not up to sample, that is, they we're inferior in quality to the husks previously supplied. The defendant's contention is that the husks of which the plaintiff refused to accept delivery were similar in quality to those already supplied and that at any rate the plaintiff had not succeeded in proving that they were in any way inferior in quality. The learned Small Cause Court Judge held that there was nothing to show that the defendant had agreed to supply husks of a better quality than those tendered or that they had actually supplied husks of a better quality on previous occasions and he accordingly disallowed the plaintiff's claim for damages and only granted a decree for Rs. 20 which had been paid in advance. It is contended on behalf of the petitioner that on the materials on the record the learned Small Cause Court Judge should have held that the opposite party was liable for breach of contract and should have awarded damages accordingly.
2. In my opinion the petitioner's contention is well founded and this rule ought to be made absolute. It is admitted on behalf of the defendant that the husks tendered to the plaintiff contained a certain amount of sand but it is contended that the presence of some sand among the husks was unavoidable and that there had been 'a similar proportion of sand in the husks previously supplied to the plaintiff. The evidence adduced on his point on the side of the defendant is scanty and conflicting. The defendant's manager 'says that one maund of husks ordinarily contains 1 or 1 1/2 seers of sand while another witness says that it contains 5 to 7 seers of sand per maund. The evidence adduced on the side of the plaintiff is to the effect that about one-sixth of the so called husks tendered to him consisted of sand whereas the husks previously supplied to him had not contained any sand. It is clear that the proposition that so-called husks of which no less than one-sixth consist of sand are fit for cattle consumption is one that cannot be supported in the absence of very strong evidence and it seems to me that the learned Small Cause Court Judge has misdirected himself in not taking the evidence on this point Into consideration and that he has disregarded the aspect of the matter referred to above. It further appears to me that he has mis-directed himself in not taking the circumstances into consideration and especially the conduct of the parties. The plaintiff showed himself to be willing and anxious to take delivery as soon as possible but the defendant on the other hand delayed in tendering the balance of the husks contracted for and finally tendered husks containing a considerable proportion of sand. It appears further that during the time that elapsed between the making of the contract and the tender of the balance of the husks contracted for, the price of husks had risen from 3i annas to 9 annas per maund. This does not of course show that the husks finally tendered were inferior in quality to those previously supplied but it does throw a certain amount of suspicion on the good faith of the defendant and indirectly on the value of the evidence adduced on his behalf. In my opinion the trial Court has erred in law in not-taking into consideration and attaching due weight to the facts and circumstances referred to above and I am satisfied that the second instalment of husks tendered by the defendant to the plaintiff was of inferior quality to the first instalment and was not fit for the purpose for which the husks were intended. In these circumstances the rule must be made absolute and the decree passed by the trial Court modified. The-plaintiff will get from the defendant in addition to the sum of Rs. 20 already decreed damages at the rate of 5i annas; per maund on 410 1/2 maunds of husks-together with proportionate costs in the: trial Court as well as his costs in this-Court including a hearing fee of two gold mohurs. The defendant will bear his own costs throughout.