Lancelot Sanderson, C.J.
1. This is an appeal from the judgment of Mr. Justice Chaudhuri in which he gave judgment for the plaintiff.
2. The action was brought to recover the price of 125 bales of jute, and the defence was that the delivery of the jute was not in accordance with the contract, and that in consequence of the inferior quality of the jute the defendants rejected the jute.
3. Now, the contract was made on the 23rd of April 1914 for 125 bales of jute. It was guaranteed to yield after cutting 70 per cent, good sacking warp, and the payment was to be made as follows: reimbursement 90 per cent demand draft against documents and balance cash on delivery. That meant, and as I understand it was agreed to by both learned Counsel who argued this case, that when the buyers received the documents from the Railway Company, the plaintiff was entitled to receive 90 per cent. of the price, and when the goods were actually delivered then the balance namely, the 10 per cent., was to be paid.
4. Now, the documents were received by the defendants from the Railway Company on the 28th of July, and these documents, as 1 understand, included a bill made out by the plaintiff for 90 per cent. of the price. The goods were actually delivered to the defendants on the 31st of July, and were taken to the defendant's godown where they remained until the time the action was brought.
5. The learned Judge has found first of all that the goods were somewhat inferior in quality. Speaking for myself, having read the evidence and carefully considered it, I think he was fully justified in coming to that conclusion, and I am not sure that if I had been trying the case I should not have omitted the qualifying word somewhat and held that the goods were inferior in quality. I need not go through the evidence in detail, because I agree with the learned Judge upon that point. There clearly was evidence upon which he could come to that conclusion, and, in my opinion, he was right in arriving at that decision. Of course, that does not end the matter. The goods not being in accordance with the contract, the defendants, if they chose, could have rejected the goods, and the law in this respect is made by the terms of the section to which we have been referred, viz., Section 118 of the Indian Contract Act. That section provides, where there has been a contract, with a warranty, for the sale of goods which, at the time of the contract, were not ascertained or not in existence, and the warranty is broken, the buyer may accept the goods or refuse to accept the goods when tendered.'--(That does not apply to this case, because the defendant did not refuse to accept the goods when tendered.) 'Or keep the goods for a time reasonably sufficient for examining and trying them, and then refuse to accept them.' On the 22nd of August, a letter was written by the defendants to the plaintiff in which they do say definitely that they rejected the goods on account of their inferior quality. But it is admitted by Mr. Gregory, Counsel for the appellant, that if the defendants had done nothing before the 22nd of August or rather that if they had not rejected the goods before the 22nd of August, they would not have rejected them within a reasonable time: and, if I may say so, he was perfectly right in making that admission, because nobody could suggest that business people with regard to a contract of this kind could sit still for three weeks after the goods were delivered taking no action with regard to them and then come forward after three weeks and say we reject the goods.' Therefore, the whole matter on this part of the case is reduced to this: Did the defendants reject the goods at sometime before the 22nd of August, and if they had rejected the goods, did they reject them within a reasonable time'? The learned Judge has found that the defendants did not reject the goods before the 22nd of August. As I read his judgment, he said the verbal evidence upon that point was contradictory and he was not able upon the oral evidence to make up his mind either one way or the other, and, therefore, he said that reliance must be placed upon the documentary evidence.
6. Now, the only documentary evidence with regard to the rejection is the letter of the 22nd of August to which I propose to refer. That letter says this,--it was written by the defendants themselves to the plaintiff--We beg to state that your 125 biles of Jobsa Jute under the above contract (i.e., contract No. 432 of G. L. Dudhuria 125 bales) had already reached our godown, but we regret to inform you that the quality of the same is much inferior to that guaranteed by the contract. We cannot accept the same as a fair tender against the contract and must reject the lot, which please remove from our godown at once. In the meantime the bales are lying at your entire risk and responsibility. Furthermore you are liable for the godown rent. The matter was brought to your notice on several occasions verbally.' The first thing I wish to say about this letter is that it is in answer to a letter of the 20th August written by the plaintiff pressing for payment of Rs. 4,950-10-0, which represented the 90 per cent. of the contract price. It is also to be observed that the last sentence The matter was brought to your notice on several occasions verbally,' upon which so much reliance was placed by the appellants' learned Counsel, is to my mind ambiguous. The defendants in that letter are referring to two things. They are referring to the fact that the goods were inferior to the quality guaranteed by the contract; they are also referring to the fact that they rejected the same When they say that that matter was brought to your notice on several occasions verbally,' it may mean that on a previous occasion we told you that we rejected them,' or it may mean that we drew your attention to the fact that the goods were not in accordance with the contract quality.' Therefore, to my mind the letter is not conclusive either one way or the other.
7. Now, what is the position? The defendants accepted the goods in this sense that they allowed them to be placed in their godown on the 31st of July. They say that they examined them either the next day or a day or two afterwards. What would one expect business people to do if the buyers found that the goods were not of the contract quality, and if they intended to reject them? I should have expected business people to put on record at once by writing to the sellers and saying that the goods were not in accordance with the contract quality, and that they rejected them We cannot find the slightest trace of that in this case; the only letter which does in so many words say that they rejected these goods was written as late as the 22nd of August and then that was written in answer to a letter pressing them for payment. I must also say that inasmuch as the goods were delivered to the defendants, it is obvious that the onus of proving that they in fact rejected, lies upon them, and the learned Judge in effect says that the defendants have not satisfied him that they did in fact reject the goods. Of course, if the learned Judge took that point of view, he was perfectly right in saying that the defendants had not rejected the goods. Speaking for myself, I have read the evidence very carefully, and I am not satisfied upon the evidence which has been put before me that the learned Judge was wrong; and, that would be quite sufficient for me. I need not say any more, because there was evidence both ways; the learned Judge was there to give his decision upon this question of fact, which is a pure question of fact and no matter of law is appertaining to it, and it is quite sufficient for me to say that I am not satisfied that the learned Judge was wrong. I may go further and say that I think it is quite possible that what happened was that there were conversations between the parties with regard to the quality of the goods, discussions as to what had been done and so on, but I am quite satisfied that the defendants have not given sufficient evidence to discharge the onus that they definitely rejected the goods before the 22nd of August.
8. For these reasons I think that the appeal should be dismissed with costs.
9. I agree.
10. I agree.