Rajagopala Ayyangar, J.-The defendants are the appellants in this appeal which is directed against the judgment of Mack, J., sitting on the Original Side of this Court and the complaint is regarding the dismissal of the counter-claim which they had filed in C.S. No. 384 of 1947 a suit filed by the plaintiff against them. The appellants are the buyers in a contract for the sale of goods while the respondents are the sellers or the representative of the sellers.

The facts giving rise to C.S. No. 384 of 1947 may be briefly stated. The plaintiff is a general merchant, importer and exporter and commission agent carrying on business in Madras while the defendants are a firm of merchants dealing among others in stationery articles. After some previous correspondence to which it is unnecessary to refer the defendants placed an order with the plaintiff on 30th December, 1946, for the supply to them of 550 gross of Everlast fountain pens. The description of the pens was “1,000 D.F. Reguar fills”. The price per gross was 74.95 dollars. This was forwarded to Messrs. Frazer & Co., New York who themselves were middlemen getting these goods from manufacturers of these pens The prices here mentioned included the commission payable to the plaintiff but by a subsequent arrangement evidenced by Exhibit P-2 dated 4th January, 1947, it was agreed by the defendants that invoices might be made out for the price to be paid to Messrs. Frazer & Co., in America while they themselves undertook to pay 5 per cent. of the value of the order as commission to the plaintiff. This was accepted by Messrs. Frazar & Co., New York by their letter Exhibit P-3 dated 30th January 1947. The description of the goods for which the order was accepted stated in this acceptance letter was “550 gross, styled ‘1,000 De luxe’ Dropper filled (regular) fountain pens”. The price was mentioned as 74.95 dollars per gross FAS New York and it was added

“However in accordance with instructions from Crystal Company (the plaintiff herein) we are deducting their 5% commission from this price. The merchandise will be billed to you at 71.20 dollars net per gross FAS New york.”

The letter stated that the goods had been shipped by parcel post to Madras, the price to be paid on arrival. The goods arrived in Madras in the first week of March 1947 and were cleared by the defendants on 6th March, 1947. The packages when opened were found to contain 370 gross fountain pens with barrels of pearl colour while the rest 180 gross consisted of pens with barrels of solid colour. Before proceeding further it might be stated that it is now common ground that there is a difference in the market prices of these two varieties those with barrels in pearl colour being higher priced. It will be noticed that in the indent dated 30th December, 1946, the defendants had not mentioned specifically that the pens were to be of pearl colour. The letters D.F. added to Everlast in that order merely indicating that they were dropper filled. When however this order was accepted by the plaintiff’s principals in America they described the goods ordered by the defendants as “De luxe”. There is some controversy in the case as to whether the description “De luxe, did or did not indicate that the barrels should be assorted colours.” But the evidence in this case as well as the subsequent conduct of the parties to which we shall refer make it clear that “De luxe” was understood in the trade to mean pens whose barrels were of pearl colour. This is ‘evident from the.price list which shows that a price approximating to that which had been fixed in the order in the present case obtained for pearl colour pens, while the price of pens with solid colour was about 10 dollars less per gross.

When the defendants found that 180 gross were of solid colour they incidentally contacted the plaintiff and desired him to communicate with his foreign principals to rectify the matter. As this correspondence was proceeding, the defendants also rejected

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