Sir John Wallis, C. J. — This is an appeal from a judgment of Mr. Justice Coutts Trotter giving the - plaintiff damages for breach of contract on the ground that the goads delivered pursuant to the contract were found to be damaged by white ants and not of merchantable quality. Mr. M. D. Devadoss in appeal, has raised a fresh point that Sect. 113 Indian Contract Act, does not mean that in the case of sales by description and sales by sample there is the same; warranty that the goods are of merchantable quality as is provided in Sects. 14 and 15 of the English Sale of Goods Act, 1893. It would be a very extraordinary thing if these two statutes which are founded on the same course of English decisions were found to vary in such a material particular as this. The language used in Sect. 113, Indian Contract Act, is not as clear as the language used in the Sale of Goods Act, which uses the words “merchantable quality.” But the first illustration to Sect. 113, Indian Contract Act, is clearly taken from the case of Gardiner v. Gray(1) which was one of the earliest cases to lay down that there was “a warranty that the goods shall be saleable in the market under the denomination mentioned in the contract between them (the parties). There was a series of cases subsequently, including the case of Jones v. Just down to the case of Nusserwanji Domanjee Mody v. Gregson. That case was decided in 1868 about the time when the Indian Contract Act was under consideration and it appears fairly clear, that the language of Sect. 113 was borrowed from the language of that eminent Judge the late Mr. Justice Willes at page 55 of the judgment in that case. He says, “Another class of cases is that of goods bought under a specified commercial description, either by sample, or even after inspection of bulk “(the two cases dealt with in the section). He goes on: “In such cases, it is an implied, term, notwithstanding the sample or inspection, that the goods shall reasonably answer the specified description in its commercial sense. The sample in such cases is looked upon as a mere expression of the quality of the article, not of its essential character, and notwithstanding the bulk be fairly shown, or agree with the sample, yet if from adulteration or other causes not appearing by the inspection or sample, though not know to the seller, the bulk does not reasonably answer the description in a commercial sense, the seller is liable.” It is quite clear that the language of Sect. 113 is modelled upon the language of the case just cited, and does not mean to lay down any rule different from that which is to be found in the English cases and which has now been embodied in greater detail in Sects. 14 and 15 of the Sale of Goods Act.
That being so, the facts of the present case are that the bales of yarn were imported from England bound in iron hoops; and the evidence is that one hoop was removed, when they were imported. If the other hoops had been removed, and the goods had been subjected to a detailed examination, they would have lost the character of imported goods under which they were sold. The evidence is that the outside of the bales was inspected before purchase but without removing the hoops or examing the contents. That was such examination as the case admitted of and it would not disclose the fact that white ants had got in and had injured the yarn. Therefore the fact that the goods were inspected before purchase is no answer. Sect. 113 of the Indian Contract Act says, “where goods are sold as being of a certain denomination, there is an implied warranty that they are such goods as are commercially known by that denomination, although the buyer may have bought them by sample, or after inspection of the bulk.” Sect. 14 of the Sale of Goods Act says that “the goods shall be of merchantable quality.; provided that if the buyer has examined the goods there shall be no implied condition as regards defects which such examination ought to have revealed.” The present defect is not a defect which the examination which took place ought to have revealed.
The only other point is as to whether there were sufficient grounds to justify the finding on the evidence of the learned Judge that these goods were not of a merchantable quality at the time they were delivered by the seller to the buyer. They were delivered in Madras and despatched by rail to Calcutta and took about 15 or 16 days to arrive. They were examined on arrival and found to be very badly damaged by white ants, and in such a condition, according to the uncontradicted evidence, that they were no longer merchantable as black yarn bearing Hanuman mark. Now, the question which Mr. Devadoss has argued is whether it is sufficiently shown that that damage took place before delivery in Madras. Four witnesses who are accustomed to handle yarn were examined on commission on this subject, and the 3rd and 4th witnesses who are the brokers of large firms in Calcutta, namely, Messrs. Ewing & Co. and Messrs. Finlay Muir and Co. say that the injury was not recent and that the goods were worm-eaten very long before. These is a slight discrepancy between the 3rd and 4th witnesses, because the 4th witness speaks of seeing the bodies of the dead ants, whereas the 3rd witness speaks only of the stain. But this is net a difference of any great importance, as dead white ants would not leave very many traces excepting the stain to which both the witnesses speak, and they both attach great importance to the fact that there were no live white ants to be found which they would have expected to find, if the damage had been recent. White ants are such a common plague in India that there is no reason for disbelieving these gentlemen, who must have had abundant experience of goods which have been damaged by white ants. Their evidence is absolutely uncontradicted and not ‘shaken in cross-examination, and in these circumstances it is not open to us to differ from the learned Judge who has found’ it sufficiently proved that the loss incurred was incurred before delivery by the defendant to the plaintiff.
In the result, the appeal fails and must be dismissed with costs.
Spencer, J.—I agree. The only question of law argued by Mr. Devadoss was whether there was any implied warranty of good quality in the five bales of black yarn with Hanuman mark which were sold by the defendant to the plaintiff. If the case were being tried in an English Court of Justice, I consider that the appellant's contention would be quite untenable. The words of Sect. 14, cl. (2) of the Sale of Goods Act are very clear. It runs as follows:—“Where goods are bought by description from a seller who deals in goods of that description (whether he be the manufacturer or not) there is an implied condition that the goods shall be of merchantable quality; provided that it the buyer has examined the goods, there shall be no implied condition as regards defects which such examination ought to have revealed.” The corresponding Section in the Indian Contract Act, Sect. 113 is as follows:—“Where goods are sold as being of a certain denomination, there is an implied warranty that they are such goods as are commercially known by that denomination although the buyer may have bought them, by sample, or after inspection of the bulk.” I consider that the words ‘after inspection of the bulk’ correspond with the proviso to cl. (2) of Sect. 14, Sale of Goods Act; and I am fortified in this opinion by the commentary on the Section in Cunningham and Shephard's Indian Contract Act which Says: “The Section following the English Law, requires that the goods tendered shall not only correspond to the description given but shall also be saleable or merchantable as such. It was so held in Gardiner v. Gray”. Now, if these bales of yarn were eaten by white ants in such a way that the goods were perforated by the channels made by the insects and were crumbling to pieces, there can be no doubt that they would not be saleable or merchantable as yarn. Mr. Devadoss relies on Sect. 116, Indian Contract Act, which deals with latent defects. I do not think the Section applies at all to the present case. It deals with defects which are only detectable by expert examination and would not apply to the state of goods which, as here, are found on close inspection to be thoroughly damaged and disintegrated.
As regards the evidence the statements of the witnesses who were called in to examine the goods on arrival in Calcutta were consistent on the point that the damage could not have been recently caused. Delivery of goods was taken on the 9th and nth August 1916 and a telegram was sent oft from Calcutta on the 26th August reporting that they were damaged. Therefore the damage must have occurred on some date before the 26th August; and the evidence that the damage was not recent proves that it is not likely to have been caused between the 9th August and the 26th of that month. The difference between the statements of the 3rd and 4th witnesses, examined on commission on behalf of the plaintiff as to whether dead white ants were visible on the inspection of the bales, is not material, for both of these witnesses agreed that there were no living white ants and it is possible that one of the witnesses was more observant and made a closer examination than the other, so that he detected the bodies of the dead white ants while the other noticed only the stains left by them. In the absence of any evidence to contradict the four witnesses summoned for the plaintiff, I do not think there is any reason to reject their evidence on the point.
I therefore agree that the appeal must be dismissed with costs.
S. S.Appeal dismissed.
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