A broker is a mere negotiator and is interested in establishing privity of contract between the parties. His position may be that of an agent for purposes of negotiation. He is not concerned with the actual fulfilment of the contract nor does he incur any personal liability in that behalf.

( 1 ) THESE two appeals raise questions of law and fact and may he conveniently disposed of by a common judgment. In fact, the two suits O. S. Nos. 10 and 13 of 1951 out of which they arise were, at the request of the parties tried together and a common judgment was rendered by the Additonal Subordinate Judge, Vijayavada. The plaintiff-seller in both the suits is a firm registered under the Partnership Act doing business at Vijayavada in jute products. The 2nd defendant who is a broker and is said to have brought about the contract between the purchaser and the seller is common to both the suits. The buyer is the 1st defendant in each of the suits, They are separate individuals. The suits are tor recovery of damages for breach of contract on account of non-acceptance of the goods sold.

( 2 ) BRICTLY stated, the facts, according to the plaintitis case are: that on 20-12-1947 the 2nd defendant arranged contracts Nos. 367 and 368 at Vijayavada between the plainliif on the one hand and the 1st defendant in O, S. No. 10 and also O. S, No. 13 of 1951 on the Other hand, under which the 1st defendant in each case agreed to purchase from the plaintiff 100 bales of jute twine, each consisting of 5 Bengal maunds at the late of Rs 59/- pet maund and it was agreed that the bales shall be delivered in two instalments of 50 bales to each one of the said 1st defendants in the months of February and March 1948. As the stipulated period drew near, the plaintiff sent the 1st instalment along with a hundi to each of the said first defendant in the month or February but the goods were refused and the hundi was dishonoured. Similar was the fate of the next consignment accompanied by a hundi. The plaintiff therefore after due notice sold the goods in open market on 25-4-1948 which fetched him a price at the rate of Rs. 44. 00 per Bengal maund. Thus, as a result of non-acceptance of goods the plaintiff sustained a loss of Rs. 15. 00 per maund. He therefore brought an action for the recovery of a sum of Rs. 7,500. 00 together with interest.

( 3 ) THE 1st defendant in each of the suits dented the transactions and contended that they are not guilty of any breach of contract, that they were neither bound to accept the goods nor honour the hundies, that they cannot consequently be held liable for any damages and that the plaintiff had no cause of action against them.

( 4 ) THE 2nd defendant as a broker while denying all liability supported the case of the plaintiff.

( 5 ) THE main points in dispute were: whether the suit contract was true, valid and binding on the 1st defendant, and, whether the plaintiff is entitled to damages; if so, what is its quantum. The trial court after due enquiry entered its judgment in favour of the 1st defendant on all the above points in each suit. The plaintiff has therefore preferred these separate appeals.

( 6 ) THE points that emerge for consideration must necessarily be the same, as have been referred to above, for the cause of action for the plaintiff would arise only if there was a contract and it was broken. So, then it is to be seen how far the plaintiff has made out his case. According to S. 5 of the Sale of Goods Act a contract of sale is made by an offer to buy or sell goods for a price and the acceptance of such offer. It may be oral or in writing or may even be inferred from the conduct of the parties, but it must of necessity originate in offer and acceptance. Each of the 1st defendant in both the cases categorically denies to have made any offer for purchase or having accepted any offer made on behalf of the plaintiff in relation to the sale ot goods, it does not appear to be the case of the plaintiff that the contract was dircctiy entered into between the plaintiff and the 1st defendant. According to him, it was the broker who had brought about the contract. The broker is the 2nd defendant who in his written statement in support of the case of the plaintiff stales as to how he brought about the contract thus:

Click Here to Read the rest of this document