1. This is an appeal by the plaintiff against the decision of the learned District Judge of Burdwan, dated the 18th March 1916, reversing the decision of the learned Subordinate Judge of the same place. The plaintiff sued to recover damages for breach by the defendant Railway Company of a contract to carry and deliver to him certain bags of grain. The goods were admittedly consigned to the Company and they arrived at the destination and apparently five bags were found in a stack in a torn condition. Thereupon, the plaintiff set up the case that he was entitled to have the goods re-weighed and to receive a certificate of shortage, and apparently he set up the case that he was entitled to have the goods re-weighed on his scales and not on the weighbridge of the defendant Company. The defendant Company through their servants refused to assent to the demands of the plaintiff. Thereupon, the plaintiff refused to take delivery and the goods were left in the custody of the Railway Company. After sometime, having' served proper notices, the Railway Company sold the goods by auction and having deducted their charges paid the balance into Court to the credit of the plaintiff. The first point that the plaintiff must establish in a case like this is that the Railway Company committed a breach of their contract by refusing to have the goods re-weighed and to give a certificate of shortage in the manner demanded by the plaintiff. No authority has been given to us by the plaintiff showing that the Railway Company were under a liability to re-weigh the goods or to give a certificate of shortage On the other hand, two cases have been cited to us that are exactly in point, namely, the case of Janki Das v. Bengal Nagpur Railway Company 13 Ind. Cas. 509 : 16 C.W.N. 356 : 15 C.L.J. 211 and the case of Ramjash Agarwala v. Indian General Navigation and Railway Co. Ltd. 41 Ind. Cas. 387 : 22 C.W.N. 310, a very recent decision of Chatterjee and Newbould, JJ. Both these cases decide that the Railway Company is not under a liability to re weigh the goods or to give a certificate of shortage. If that is so, then, when the plaintiff refused to take delivery except these conditions were complied with, he was in default and both under the terms of the contract and under the terms of the general law, the plaintiff being in default, the goods were at his risk and any deterioration or damage suffered to the goods after that date fell on the plaintiff. That being so, it is quite clear that the plaintiff cannot sue to recover damages for that loss. The case, to my mind, is clearly covered by authority.
2. It has been suggested by the Railway Company in their cross-appeal that the evidence does not support a partial award of damages that has been made by the learned Judge and that the only amount that the plaintiff can recover on the facts established in this case is the actual amount for which the goods were sold less the Company's charges for warehousing, and costs of sale and other similar matters. The Railway Campany, however, at our suggestion, have not pressed their crossappeal and we, therefore, need not consider whether the award made by the learned District Judge can or ought to be reduced. The plaintiff, in my opinion, having regard to the decisions of this Court, has not been able to establish that the railway administration is liable for any larger amount than that awarded by the lower Appellate Court. The present appeal, therefore, fails and must be dismissed. The cross appeal is also dismissed. We make no order as to costs either in the appeal or in the cross-appeal.
3. Shamsul Huda, J.