Ramaswami, J.:— In the suit which is subject of this appeal the plaintiff sued the defendants for damages for breach of contract. Plaintiff alleged that on 5th August, 1942 Rameshwar Lal Rant Mal had booked 337 bags of rice from Kishanganj to Giridih. Defendants 2 to 6 purchased these bags of rice Tyhich were covered by the railway receipt, Ex. 5. On 30th August, 1942 defendants 2 to 6 sold the goods in their turn to plaintiff on payment of Rs. 5,897 in cash. It was agreed that the plaintiff would pay railway freight and take delivery of consignment. It was a term of the contract that if the goods were not actually; delivered to the plaintiff, the defendants 2nd party would refund the money paid and compensate the plaintiff. The plaintiff next alleged that the railway administration (defendant no. 1) did not make delivery of the bags of rice. On inquiry the railway administration informed the plaintiffs that the goods had been, looted from the stationary wagons at Kiul railway junction by a mob of rioters on 14th August, 1942. The plaintiff alleged that the loss was due to the negligence of railway administration who as bailee was responsible for displaying proper amount of care. In case defendant no. 1 was held not liable, the plaintiff asked for an alternative decree against the defendant 2nd party who were liable to recoup the loss according to the stipulation of the contract.
The railway administration resisted the claim on the ground that there was no negligence on their part and the loss or destruction of the consignment was clue to an extraordinary event which could not be prevented or foreseen. The defendants second party denied that there was any oral stipulation that they would refund the money to plaintiff in case the goods were not delivered to the latter. They alleged that the loss of consignment was due to the negligence of the railway company who alone was liable.
The trial Judge found that the loss of consignment was due to the negligence of the railway administration. He also held that there was a special term of the contract that defendants 2nd party would refund the money in case the goods were not received by the plaintiff. But in accordance of the first finding the trial Judge granted a decree only against the railway administration for Rs. 5,897 and odd.
Against this decree defendant no. 1 has instituted this appeal.
Two arguments were presented before us on behalf of the appellant.
In the first place, it was urged that the looting of the consignment could not be directly attributed to any negligence on the Railway's part and the administration was not liable for non-delivery of the goods. The second contention was that plaintiff's contract of sale with defendants 2 to 6 on 30th August, 1942 was void on account of mutual mistake for the reason that the consignment was non-existent on that date having been destroyed or looted by rioters on 14th August, 1942. That being so, it was urged that the plaintiff had no right or cause of action against the Railway administration.
On the first question, learned advocate invited us to hold that the administration made no negligent delay in transhipment of the consignment; that even if the delay was negligent, the looting of the goods on the alleged date was not direct consequence of this negligent conduct. In other words, the argument was that the consequence was too remote and that the railway was not liable for the loot of the consignment. It is the admitted case that the three metregauge wagons in which the consignment was loaded reached Manihari Ghat on 7th August, 1942. D.W 2 admits that the wagons were dispatched from Katihar to Manihari on 6th August at 17.5 hours. According to D.W 3 a goods train usually takes one hour to run from Katihar to Manihari. D.W 4 concedes that he took charge of the wagons on 9th August, 1942. The wagons were unloaded and the rice bags were conveyed to a Flat and towed across the Ganges. At Sakarigalighat the bags were transhipped to two broad-gauge wagons. D.W 5stated that he received the consignment at the Sakarigalighat from Flat no. A(2) on 10th August, 1942 (Ex. F entry in Tally Book, dated 11th August, 1942). The learned Subordinate Judge held that delay in taking charge of the wagons at Maniharighat and the further delay of two days at Sakarigali was due to the gross negligence of the Railway servants. But the evidence does not conclusively support this inference. There is no evidence to indicate what was the volume of traffic at Sakarigali and Manihari and whether the delay was excusable. But assuming that the delay was negligent, it does not necessarily follow that the plaintiff must succeed for the plaintiff will lose his action if the harm which he has suffered is too remote a sequence of the defendant's conduct.
In the leading case of Polemis and Furness Withy and Co., Ltd. the Court of Appeal adopted the view that if a reasonable man would have foreseen any damage as likely to result from his, act then he was liable for all direct consequence of it whether a reasonable man could have foreseen them or not. In that case Scrutton, L.J defined what was “direct” consequence. He said that damage was indirect if it was “due to the operation of independent causes having no connection with negligent act except that they could not avoid its results”. In 1933 the House of Lords considered the case of Re Polemis and they put an interpretation upon it which limited its scope. The case before them was Liesbosche Dredger v. Edison, Lord Wright distinguished Re Polemis on the ground that the injuries suffered were “immediate physical consequences of a negligent act”. He held that plaintiff could only recover as damages the market price of a dredger comparable to the liesbosche and the date on which the substituted dredger could reasonably have been available for work. But the claim of extra expenses due to poverty was rejected, because the plaintiff's want of means was an extraneous' matter which rendered this special loss too remote. In this context I would refer to another important case. In Weld blundell v. Stephens(3) Lord Sumner emphasised that in general (apart from special contracts and relations and the maxim Respondent superior), even though A was in fault, he was not responsible for injury to C which B a stranger to him, deliberately chose to do. Though A might have given the occasion for B's mischievous activity. B then became a new and independent cause. In this case the House of Lords held that if A wrote a libel on C which was published by B over whom A had no control A was not liable to C Until publication, no tort at all was committed, “and when publication did take place it was due to B and not to A. As Lord Sumner observed in his speech the object of a civil inquiry into cause and consequence is to fix liability on some responsible person and to give reparation for damage done. The trial of an action for damage is not a scientific inquest into a mixed sequence of phenomena, or of an historical investigation of the chapter of events.
In this context it is relevant to cite Bacon's rendering of the maxim “In jure non remota causa sed prowimd spactatur”. “It were infinite for the law to consider the cause of causes and their impulsions one of another; and therefore it contenteth itself with the immediate cause and judgeth of acts by that without looking to any further degree.”
In the present case it is patent that the alleged looting of the consignment at Kiul is too remote a sequence of the alleged negligent conduct on the part of the railway administration.
But in my opinion the plaintiff is entitled to get a decree against the administration on the ground that there is no sufficient evidence to establish that the consignment was actually looted by the mob of rioters on the 14th of August.
It is the admitted case that on 11th August, 1942 the two railway wagons were despatched from Sakarigalighat to Sahebganj. D.W 8 (Number taker) stated that two wagons were received at Jamalpur on 12th August, 1942 and 13th August, 1942 (vide entries H-1 and H-1.T). D.W 9, the Kiul Station Clerk, deposed that the wagons were received at Kiul on 13th August, 1942 at 5-30 p.m It is alleged that on 14th August, 1942 a mob of 5,000 persons made a raid on the railway station, destroyed the records and furniture, broke open the seals of the goods wagons and looted the contents D.W 11, Station Master, Mr. K.B Chatterjee, has given important evidence. He deposed that on 15th August at 4 p.m he took stock, of all the wagons in the yard and the condition thereof. In his presence Mr. M.K Banarji, Head Checking Clerk, wrote a report, Ex. J-1. On the next date, 16th August, Mr. Banarji again, prepared a detailed list of the contents of wagons which were not completely empty, Ex. K-1. For the respondent it is rightly pointed out that Mr. M.K Banarji, the Head Checking Clerk, has not been examined in court. The Station Master has deposed that Mr. Banarji wrote the reports, Ex. J-1 and Ex. K-1, in his presence. But Ex. J1 does not itself bear any endorsement of the Station Master to the effect that he has verified the contents. It is also remarkable that Ex. J-1 does not indicate on what date it was prepared. It bears the alleged signature of Mr. Banarji but there is no date beneath. The same criticism may be made of the other document, Ex. K-1. It is hence not possible to rely on the oral evidence of the Station Master that he verified the stock of all the wagons. It is important to notice that on 16th August the Station Master prepared a report, Ex. 1-1 but despatched it to Divisional Superintendent on 1st September. Even in this belated report there is no mention that the Station Master took stock of the wagons or prepared a detaied list of the contents. For the railway company no reason has been assigned why the alleged writer of Ex. J-1, namely, Mr. Banarji, has not been examined. It is patent that the defendant's evidence does not satisfactorily establish that the specific consignment in dispute in the present case was looted by the mob of rioters from Kiul Station on the 14th of August.
On this finding of fact, the question arises, what is the necessary legal consequence. Under section 72, Railways Act, the responsibility of railway administration is that of bailee under sections 151 and 152 of the Contract Act. Under sections 151 and 152 the loss or damage of goods entrusted to a bailee is prima facie evidence of negligence and the burden of proof, therefore, to disprove negligence lies on the bailee. In Surehdra Lal Chaudhuri the plaintiff had made over to railway 250 bundles of tobacco for delivery to Calcutta. In course of transmission the goods were destroyed by a severe cyclone while being carried on a flat in river Padma. Sir Asutosh Mookerjee observed that when goods were not delivered to the consignee at the place of destination, the plaintiff need not prove how the loss occurred. The burden lay upon the bailee to prove the existence of circumstances which exonerated him from liability for the loss. Sir Asutosh Mookerjee relied upon two cases Trustees of the Madras Harbour v. Best & Co. and Sesham Patter v. Moss. In River Steam Navigation Co. v. Choutmull(4) the Judicial Committee had previously adopted the same view. In that case jute properly put on board one of the appellants' vessels took fire and was consumed. The respondents claimed damage for non-delivery of 432 drums of jute. It appeared that upon the night in question from some incomprehensible cause the jute caught fire and the whole cargo was burnt. The Judicial Committee held that under the Indian Carriers Act the appellants would have been exempt from liability if they had proved (the onus being on them) that there was no negligence on their part, but that on the evidence they had failed to exonerate themselves.
In the present case the defendant railway has not given reliable evidence to prove the existence of circumstances which exonerated it from liability for the loss. The non-delivery of the consignment is prima facie evidence of negligence. No proof has been offered by the railway company to rebut this presumption.
I hold that the Subordinate Judge rightly passed decree against defendant no. 1 in the present case.
For the appellant it was next argued that the contract by which the plaintiff acquired title to the consignment of rice was void on account of bilateral mistake. It was pointed out that on 14th August, 1942 the consignment had been looted by the mob of rioters from the Kiul railway station. If that be so, the consignment was not existent on 30th August, 1942 on which date defendants 2 to 6 purported to sell it to the plaintiff. In this connection reference may be made to section 7 of Sale of Goods Act. This section corresponds to section 6 of the English Act and is declaratory of the Common Law. In Couturier v. Hastie there was sale of a cargo of corn which had been shipped at Salonica for delivery in London. Unknown to the seller the cargo had before the date of contract become heated and in consequence had been landed at Tunis, an intermediate port, and sold by the, master of the ship. The House of Lords held that the contract contemplated that there was an existing something to be sold and bought and capable of transfer which not being the case, the contract was void for mistake. There are English authorities to the effect that the contract is void not only in cases where the goods have been destroyed but also in cases where the seller, is irretrievably deprived of them as when they have been stolen or lawfully requisitioned by Government. In Barrow, Lane and Ballard v. Phillip Phillips there was a sale of 700 bags of Chinese ground nuts identified by marks lying in a warehouse. Unknown to the seller before the sale 109 bags had been stolen or fraudulently abstracted. It was held that the sale was void and the buyer could not be compelled to take the remainder. Wright, J. re-stated the well-established rule that “where a contract related to specific goods which did not then exist, the case was not to be treated as one in which the seller warranted the existence of the specific goods but as one in which there has been failure of consideration and mistake”.
The principle is well illustrated in civil law (Digest 18-4-9. De contrahenda emptione). After laying down the general rule, that where the parties are not at one as to the subject of the contract there is no agreement, and that this applies where the parties have misapprehended each other as to the corpus, as where an absent slave was sold and the buyer thought he was buying Pamphilus and the vendor thought he was selling Stichus, and pronouncing the judgment that in such a case there was no bargain because there was “error in corpore,” the framers of the digest moot the point thus: “Indeo quaeritur, si in ipso corpore non erretur, sed in substantia error sit, ul, puta, si acetumpro vino veneat, aes ro auro, vel plumbum pro-argento vel quid aliud argento simile: an emptio et venditio sit;” and the answers given by the great jurists quoted are to the effect, that if there be misapprehension as to the substance of the thing there is no contract; but if it be only a difference in some quality or accident, even though the misapprehension may have been the actuating motive to the purchaser, yet the contract remains binding.
This is also the opinion of the French civilians. In Contrat de Vente Pothier says: “There must be a thing sold, which forms the subject of the contract. If then, ignorant of the death of my horse, I sell it, there is no sale for want of a thing sold. For the same reason, if when we are together in Paris, I sell you my house at Orleans, both being ignorant, that it has been wholly, or in great part, burnt down, the contract is null, because the house, which was the subject of it, did not exist; the site and what is left of the house are not the subject of our bargain, but only the remainder of it.”
In the present case, however, it is not established by satisfactory evidence that the consignment of rice was destroyed or had been stolen by the mob of rioters as alleged by the defendant. It follows that the plea of mistake cannot be accepted, and contract of sale is not void on that account. It cannot be disputed that plaintiff obtained title to the consignment and that he could properly institute the present suit.
I hold that the trial Judge has correctly granted decree against the defendant no. 1.
I would affirm the decree of the lower court and dismiss this appeal with costs.
Before parting with this case I may advert to the argument of the respondent that there has been no subsitution in place of Governor-General-in-Council and the appeal was incompetent. Just section 12(1), Indian Independence (Eights, Property and Liabilities) Order, 1947 enacts that where the Governor-General-in-Council is a party to any legal proceedings on the appointed date, the Dominion of India “shall be deemed” to be substituted for the Governor-General-in-Council as a party to these proceedings and the proceedings may continue accordingly. In the present case, the substitution should be deemed to have been made; and it is merely necessary for the learned advocate, Mr. S.N Bose, to file a fresh vakalatnama which he has undertaken to do.
Manohar Lall, J.:— I agree, but wish to make a few observations. I was not at all impressed by the argument of Mr. De that it has not been established on the evidence that the bags of rice ever reached Kiul and that they are still in a railway wagon somewhere. The documentary evidence, as has been pointed out by my learned brother, completely establishes the arrival of the wagons in which the bags of rice were loaded at Kiul on the 13th of August, 1942.
Mr. S.N Bose for the railway company seriously contended that the learned Judge was wrong in holding that the delay taken in the transit by the railway company was serious and contributed to the loss on the 14th of August. I agree with this contention. The only delay which has been found by the Subordinate Judge is between the 6th of August and the 9th of August. Any one who is familiar with the working of the railways of the metre-gauge in this province and specially of those lines which reach the ghats where the goods have to be unloaded and loaded in the flats and steamers will readily agree that the delay of two or three days at Maniarighat before the goods reached Sakarigalighat cannot be held to be excessive. Indeed Mr. De was not very serious in supporting this part of the finding of the Subordinate Judge. But even if it is accepted that there was unreasonable delay in the unloading and the loading of the goods at the two ghats, it is impossible for me to understand how the Subordinate Judge could have arrived at the conclusion that this delay was a contributory causes of the loot on the 14th of August. There is no conceivable connection between the delay and the not on the 14th of August. This argument which appealed to the Subordinate Judge is wholly far-fetched, and I have no hesitation in overruling it.
It was also argued by Mr. Bose that the plaintiffs had no right to sue because on the date when the title in the goods were transferred to the plaintiffs the goods ceased to exist as they had been looted away. This argument would have been sound if I had come to the conclusion that the goods had been looted away. But the evidence in the case is wholly insufficient to arrive at the conclusion that these particular goods were looted away on the 14th and 15th of August, and for the reasons about to be given.
The onus is on the railway company to prove that these particular goods were looted. They rely upon exhibit J-I, which was a list of the wagons at Kiul station yard prepared by one M.K Banerji, and exhibit K-I, which was a list of the articles found in the looted wagons, also prepared by Mr. Banerji. The whole case of the railway depended upon the proof of these two exhibits. But strange as it may appear, Mr. Banerji has not been examined in the case. It is, therefore, impossible to place any reliance on these two documents in the absence of evidence, before the court that Mr. Banerji had prepared these two lists on his own personal knowledge. The plaintiffs are certainly seriously prejudiced if these two documents are taken in evidence against them when they had no occasion whatsoever to cross-examine Mr. Banerji, But an attempt was made by oral evidence to prove that the Station Master, Mr. K.B Chatterji, witness no. 11 for the defendant, had verified the contents of these two documents. Mr. Chatterji says at the top of page 30 that M.K Banerji, Head Checking Clerk, wrote the report exhibit J-I and he verified it. He says a little later that exhibit K-I is the list written by Mr. Banerji on the 16th of August, that is to say a detailed list of the contents of the wagons, in the presence of the witness. Now the important circumstance against the acceptance of this evidence is that Mr. Chatterji in the report, exhibit 1(1), which he sent to the Divisional Superintendent, Dmapore (which may be assumed to have been written on the 16th of August, but was despatched on the 1st of September), does not say a word that he verified the contents of any railway wagon or that he checked the railway wagons in the station yard on the 15th or 16th of August. All he says is that on the morning of the 16th August each, and every wagon was searched, list of contents made out, and the wagons riveted and sealed. It may be that Mr. Chjatterji is merely deposing to the real fact that he relied on the report of Mr. Banerji, but I cannot accept his evidence if the intended to say that he himself verified the contents of the wagons by checking the wagons. There were about 125 to 130 wagons and he could not have checked all these wagons him self in the short time of one hour. I, therefore, agree with my learned brother that it has not been established that these particular goods were actually looted by the rioters. As to what happened to the goods thereafter it is impossible to say as the railway company has produced no other evidence beyond alleging that these particular goods were looted on the 14th and the 15th of August.
A preliminary objection was taken on behalf of the respondents that this appeal had become incompetent by reason of the fact that the defendant railways have now vested in the Dominion of India and no substitution has been made of the name of the appellant—the name of the appellant stands in the record of this appeal as Governor-General in-Council. The answer to the argument is that by section 12(1) of the Indian Independence Order, 1947 it is clearly enacted that the Dominion of India shall be deemed to be substituted for the Governor-General-in-Council as a party to these proceedings and the proceedings will continue accordingly. It is, therefore, clear that the substitution of the Dominion of India must be deemed to have been made after the appointed date. But I agree with the contention of the respondents that the substitution of the Dominion of India does not mean that the Dominion of India shall also be deemed to be represented by the same Advocate who appeared for the Governor-General-in-Council. To meet this difficulty, Mr. S.N Bose has undertaken to file a fresh vakalatnama. He is allowed to file it before the decree is actually signed in this office.
K.D
Appeal dismissed.