1. This is an appeal by the plaintiff in the suit from a judgment of Mr. Justice Buckland, dated the 4th of December 1923, dismissing the plaintiff's suit. The facts which I shall shortly state are as follows: By a contract dated the 31st July 1919, to the terms of which I shall presently refer, the plaintiff, who is the appellant before us, sold and the defendants, the respondents before us, purchased 1000 bales of Naraingunje jute. According to the terms of the contract shipment was to take place during August and/or September 1919. On the 23rd September 1919, in pursuance of the contract, the plaintiff shipped 500 bales of jute on board the Flat 'Dwarka.' The bill-of-lading in respect of these bales was made out in the name of the defendants as consignees. On the 25th September 1919, according to the case for the appellant, the usual documents were presented through the International Banking Corporation to the defendants for payment of 90 per cent. of the value in terms of the contract. Some dispute has taken place as to whether the bill-of-lading was with the documents that were presented, and this is one of the points which I shall deal with later. The defendants put off payment of the 90 per cent. on the 25th September on the ground so the appellant alleges--that there was no policy of insurance in respect of the 500 bales. On the same date, namely, 25th September, the Plat 'Dwarka' caught fire and the jute was destroyed and the suit out of which this appeal arises was brought by the present appellant to recover the value of the goods, namely, Rs. 42,499-6. The contention of the appellant is that the property in the goods passed to the respondents when they were shipped on board the Flat 'Dwarka.' The respondents on the other hand contend that all the terms and conditions of the contract were not fulfilled merely by the shipping of the bales of jute on board the Flat 'Dwarka,' and that accordingly on the 25th September, when the fire took place, the property in the bales of jute had not passed to them, but they were still the property of and at the risk of the plaintiff and they say that if the shipping of the bales of jute amounted to appropriation it was merely a conditional appropriation which did not have the effect of passing the property in the jute until the other conditions in the contract were fulfilled. I now turn to the contract itself. It is, as I have stated, dated the 31st July 1919. It is signed by the brokers and addressed to Sadasook Kothari, the appellant. Thereby one thousand bales of Naraingunje jute, each bale weighing about 3 1/2 maunds, were sold at rupee twenty and annas eight per Calcutta bazar maund delivered free 'at Buyer's Mill-ghat or Press-house by Rail or Steamer and/or Flat.' Then follows a provision with regard to the weight which was guaranteed at the buyer's Mill-ghat or Press-house. The shipment, as I have already stated, was to take place during August and/or September 1919 and the costs of cartage were to be deducted from the seller's margin bill. So far as the payment is concerned the contract provides that 90 per cent. of the value of the goods was to be paid against the railway receipts and the balance 10 per cent., on Press-house receipt. Then follows an arbitration clause to which I need not refer and in the margin of the contract these words are found: '1030 bales at Rs. 20-8 per Calcutta bazar maund. Delivered at Strand Bank Press, Cossipore.' Now the whole question in this suit turns upon the construction of the contract of the 31st July 1919 and in my opinion it is idle to discuss whether the law with regard to the sale of goods is similar in India to that in England or the incidents of C.I.F. contracts or to cite cases dealing with sale of goods in other countries, because the real question that we have got to decide is what upon the true construction of the contract before us was the arrangement of the parties, namely, whether the contention of the appellant is correct that the property in the goods passed at the time when the goods were placed on board the Flat 'Dwarka' or whether the contention of the respondents is correct that the property had not passed at the time of the fire on the 25th September because upon the true construction of the contract there were other terms still to be performed and until such terms were fulfilled the property in the goods remained with the seller, the appellant and did not pass to the buyers, the respondents. Now the appellant contends before us that the words in the first clause of the contract in the printed copy before me, namely the words: 'Delivered free at Buyer's Mill-ghat or Press-house by Rail and or Steamer and/or Flat,' do not mean that the contract was not performed until delivery took place at the Mill-ghat or Press-house, but that the reference to the Millghat or Press-house merely means that the delivery there was to be free so far as the buyers were concerned, and that there was no obligation on the appellant to deliver these goods there, that is to say, it really comes to this: that the appellant says that his obligations under the contract were performed when he had placed the bales of jute on a steamer or flat whose destination was the Press-house of the respondents, namely, Strand Bank Press at Cossipore. Then so far as the words in the margin are concerned, namely, 'Delivered at Strand Bank Press, Cossipore,' the appellant contends that these words do not import a condition that the contract was not completed so far as the appellant was concerned until the goods had reached the Strand Bank Press at Cossipore, but that they merely mean that the price of the goods at this place was Rs. 20-8 per maund. The appellant complains that the learned Judge in the first Court has wrongly relied upon certain English decisions which are referred to in his judgment and contends that upon his construction of the contract the case is covered by the provisions of the Indian Contract Act, namely, Sections 83 and 91. Section 83 provides that where the goods are not ascertained at the time of making the agreement for sale but goods answering the description in the agreement are subsequently appropriated by one party for the purpose of the agreement and that appropriation is assented to by the other, the goods have been ascertained and the sale is complete. Section 91 provides that a delivery to a wharfinger or carrier of the goods sold has the same effect as a delivery to the buyer, but does not render the buyer liable for the price of goods which do not reach him unless the delivery is so made as to enable him to hold the wharfinger or carrier responsible for the safe custody or delivery of the goods. There is no doubt, I think, if the construction put upon the contract by the appellant is correct, that by the joint operation of Sections 83 and 91 of the Indian Contract Act the property in the bales of jute passed to the respondents when the bales were put on board the Plat 'Dwarka' whose destination was the Strand Bank Press at Cossipore. The appellant further relies on certain indications in the contract as bearing out the construction which he seeks to put upon it, namely, that the contract was one made in Calcutta and that 90 per cent. of the value of the goods was payable in Calcutta against the Railway receipts and that the balance also was payable in Calcutta against the Press-house receipt. Numerous cases were cited to us in the course of the argument and we were especially pressed on behalf of the appellant with two cases to which we think we should refer. The first of these is the case of Tregelles v. Seivell  7 H. and. N. 574. In that case the contract was for 300 tons old bridge rails at a certain price delivered at Harburgh: cost, freight and insurance; payment by net cash in London, less freight, upon handing bill-of-lading and policy of insurance; a Dock Company's weighment note or captain's signature for weighment to be taken by buyers as a voucher for the quantity shipped. The head-note states that it was held that according to the true construction of the contract there was no undertaking by the defendant in that case to deliver the iron at Harburgh, but that his obligation was performed when he had put the iron on board a ship which was bound for Harburgh and had handed to the plaintiff the policy of insurance and other documents whereon his liability ceased and the goods were at the risk of the purchaser. We have had read to us the judgment of the learned Judges in that case and 1 have again perused those judgments since the conclusion of the hearing last afternoon and I think myself that the head-note correctly states the reasons of the decision, namely, that the decision was arrived at upon the construction of that particular contract. I understand that this case was cited to us as an authority for the proposition that notwithstanding the fact that the actual destination of the goods was stated in the contract the property in the goods passed when the seller had put the goods on board a ship whose destination was at Harburgh where the goods were to be delivered. It is noticeable in that case that the terms of the contract specifically provided that payment should be made for the goods upon the production of certain documents and upon the goods being placed on board a ship and upon the weight of the goods so shipped being established as indicated in the contract. In my opinion that case cannot be taken as laying down any general rule but must be taken as a decision upon a particular contract which was before the Court upon which they held that the seller had performed all his obligations and was entitled to payment when he had placed the 'goods on board a ship destined for Harburgh and that it was immaterial so far as he was concerned whether the goods subsequently reached their destination or not. The other case to which we were referred was the well-known case of The Badische Anilin Und Soda Fabrilc v. B.C. Works  A.C. 200. In that case a trader in England had sent an order to the Basle Chemical Works in Switzerland for certain goods and asked that these should be sent by post at once. The manufacturer in Switzerland handed the goods to a forwarding agent instructing the agent to wait for further directions from London. The forwarding agent, without waiting for such instructions, posted the goods and the question that arose was whether the goods when posted were at the risk of the purchaser in England or whether they remained at the risk of the seller, the Basle Chemical Works, until they reached London. It is not necessary, I think, to refer to the actual point upon which the suit was brought, namely, that what had happened amounted to an infringement of Letters Patent, but for our present purpose it is sufficient to consider what conclusion was arrived at with regard to the passing of the goods. In that contract the London trader had asked that the goods should be sent by post and accordingly it was held that directly the goods were placed in the post, it did not matter whether by the forwarding agent or by the seller of the goods, the property in the goods no longer remained in the seller but passed at once to the buyer and that the goods in transit were at his own risk. That decision again really seems to me to depend upon the construction of the contract which was before the Court, and we think that it cannot be taken as laying down any general proposition. I have stated the contention of the appellant upon the construction of the contract before us and I now turn to the contentions of the respondents. What they say is that according to the true construction of the contract it was a contract for delivery of 1000 bales of jute at the Press-house of the buyers and that until the goods had arrived at the Press-house by steamer or flat the carriers were the agents of the sellers and not of the buyers, that is to say, that no property in the goods passed merely by placing the goods on the steamer or flat, but that the property in the goods did not pass until they reached their destination, namely, Strand Bank Press at Cossipore. The contention was put succinctly by the learned Counsel for the respondents and I will read his own words. His contention was this: that where in a contract the place of delivery is indicated the delivery to a carrier does not amount to fulfillment of the contract at all and that in such a case, that is, where the destination is indicated, the carrier is the agent of the seller and not of the buyer; but that where no place is indicated, if you perform all the terms that you are bound to perform, all the terms incumbent on the seller have been performed and the carrier is the agent of the buyer and not of the seller. Stress was further laid by the learned Counsel for the respondents on the fact that the contract in suit was not a C.I.F. contract in which the tender of the bill-of-lading, together with a policy of insurance without an actual tender of the goods, is sufficient performance of the seller's part under the contract, but that this not being a C.I.F. contract the goods themselves must be tendered and that the mere tender of the documents is not sufficient. This is only another way of putting the respondents' contention upon the construction of the contract, namely, that if you read the contract in its natural meaning it means that the contract was not performed so far as the seller was concerned until the goods had reached their destination named in the contract, namely, Strand Bank Press at Cossipore. We have stated the two contentions on the construction of the contract urged respectively by the appellant and respondents, and the conclusion we have come to is that the decision of the learned Judge is correct and that upon the true construction of the contract the property in the goods did not pass when they were placed upon the Flat 'Dwarka' for conveyance to the Strand Bank Press at Cossipore, but that something remained to be done, namely, actual delivery of the goods themselves at the Strand Bank Press at Cossipore This is the main point which was argued before the learned Judge in the Court below and which was argued before us. But there are two other points that were raised and it is necessary to deal with them.
2. The second point is the contention put forward on behalf of the respondents that the bill-of-lading in respect of the goods did not accompany the other documents when the demand for payment was made by the International Banking Corporation. The learned Judge has come to a conclusion against the respondents on this point and he states that the usual documents were presented to the defendants on the demand for payment of 90 per cent. to the Bank. It is stated on behalf of the respondents that this conclusion is wrong, and we were referred to various passages in the evidence as showing that the learned Judge's conclusion on this point was not correct. The first passage to which we were referred is contained in the evidence of Ramdutt Upadhayay who was a Bill-Collecting Jamadar of the International Bank. In his answer to question (16) he states that he presented the bills and asked the respondents to pay, and that he was asked by the respondents' cashier to come some other time. He states that he went there again an hour after and re-presented the bill to one Mulchand, who asked him whether he had the bill-of-lading with him and that he replied that he had not the bill-of-lading hut he had the bill which the Cashier Babu had given him. He again in his answer to question (23) states: 'So far as I remember, the bill-of-lading was missing, but it is impossible for me to remember the nature of the paper;' and later on in answer to question (26) he states that he thinks that the document which was missing was a paper for realizing the goods. Then again there is a passage which was relied on by the respondents in the evidence of Mohendra Nath Mukerjee who is employed in the Bill Department of the International Bank. There is no doubt considerable force in what was urged on behalf of the respondents having regard to the answers given by the Bill-Collecting Jamadar of the International Bank; but it is noticeable that this point was never taken in the written statement filed by the respondents and the learned Judge who saw the witnesses came to the conclusion that the document alleged to be missing was not the bill-of-lading but the policy of insurance, and notwithstanding the evidence to which we have referred we think, having regard to the omission of any statement of this kind in the written statement, we should accept the learned Judge's finding on this point and hold that the bill-of-lading was presented to the respondents on the 25th September 1919. This being so, there is no substance in this point.
3. The third point urged was also urged on behalf of the respondents and this was that in any case, even if the contention of the appellant as to the passing of the property was correct, the contract was not performed until the whole of the 1000 bales had been shipped to the respondents. This point was urged before the learned Judge and he came to the conclusion, relying on the case to which he refers in his judgment, that the contract was divisible and that under the terms of the contract it was open to the appellant to ship the goods by different shipments so long, of course, as they were shipped during August and September and that there was no force in the contention of the respondents that the contract was not completed until the whole of the 1000 bales had been handed over to the carrier. This question again depends upon the construction of the contract itself. The leading case on matters of this kind is the well-known case of The Mersey, Steel and Iron Company, Limited v. Naylor, Benzon & Company  9 A.C. 434. The contract in the case was for the supply of 5000 tons of steel to be delivered, 1000 tons monthly, and the question that was debated before the House of Lords was whether the failure to deliver one of the monthly shipments of 1000 tons justified the repudiation of the contract. The learned Judges in the House of Lords came to the conclusion that upon the true construction of that contract the contract was divisible and that the mere failure to deliver one of the monthly instalments did not justify the repudiation of the contract, but was a claim founding in damages. Lord Blackburn in his speech reported at p. 444 states that he repeatedly asked Mr. Cohen, one of the counsel engaged in the case, whether or not he could find any authority which justified him in saying that every breach of a contract, or even a breach which involved in it the nonpayment of money which there was an obligation to pay, must be considered to go to the root of the contract and Lord Blackburn states that the learned Counsel failed to produce any such authority. Lord Blackburn says that there are many cases in which the breach may do so; and that it depends upon the construction of the contract. Accordingly for the decision of this question we cannot rely upon any case cited to us, however high the authority may be, for we have to go to look at the contract itself and to say whether upon the true construction of the contract delivery in instalments was contemplated. I confess myself that I have felt considerable difficulty so far as this question is concerned, but the conclusion I have come to is, that upon the true construction of this contract the contract was one and indivisible, and that the contract was not performed until 1,000 bales of Naraingunje jute were delivered at the Strand Bank Press at Cossipore.
4. There is a minor point to which also I ought to refer, namely, the terms of the bill-of-lading itself. If we are wrong in our construction of the contract and upon the true construction thereof the property in the goods passed upon their being placed on board the steamer 'Dwarka,' then it is contended that the last portion of Section 91 of the Indian Contract Act has not been complied with and that the plaintiff's suit must fail on this ground. I have already referred to Section 91 and it is unnecessary to read it again, but the portion to which I desire to refer is the latter portion, namely, that a delivery to be a good delivery must be a delivery which enables the buyer to hold the wharfinger or the carrier responsible for the safe custody or delivery of the goods. In the bill-of-lading before us there is a provision that the shipment is to be on account of and at the risk of the shipper, that is to say, the appellant before us, and there is one clause, Clause (5) of the contract, relating to the liability of the carrier for loss or damages, and it is accordingly urged that if the construction of the contract contended for by the appellant is correct, having regard to this provision in the bill-of-lading to which I have referred, the seller is not in a position to hold the carrier responsible for safe custody or delivery of the goods. This is a minor point and was not really pressed before us, but we only mention it because it was raised in the argument by the learned Counsel for the respondents; but in the view we take upon the main issues in the case it is not, I think, necessary to come to any decision on this point.
5. The result is that we think that the learned Judge's reading of the contract was correct, and in this view the appeal fails and is dismissed with costs.
6. I agree.
7. The whole question turns upon the construction of the contract before us. As I agree with my learned brother in the view that he has taken of the contract I do not think it necessary to add anything further.