Venkatarama Ayyar, J.- This is an appeal against the Judgment and Decree of Mr. Justice Bell dismissing C.S.No. 100 of 1946 on the Original Side of this Court. The plaintiffs are merchants carrying on business at Alandur near St. Thomas Mount and the suit was to recover damages for breach of warranty in respect of goods sold to them by the defendants under a contract entered into on 19th September, 1945. During this period, there was a great demand for chillies in Madras. The defendants had purchased 250 maunds of chillies from a firm of Calcutta merchants called Ganjee-Sajun &38; Company and the same had been shipped per S.S. Dhruva on 16th September, 1945. While the shipment was on its way the plaintiffs agreed to purchase this consignment of 250 maunds from the defendants at Rs. 37-12-0 per maunds C.I.F. Cuddalore. The steamer arrived at Cuddalore on 2nd October, 1945. The bills of lading had been sent by the Calcutta Merchants to the defendants along with their invoice dated 21st September, 1945. The original arrangement was that the defendants should clear the goods at the port through Messrs. Parry &38; Co., and consign them by rail to the plaintiffs at St. Thomas Mount. On 4th October, 1945, the plaintiff wrote to the defendants that the bills of lading may be sent immediately the object of the plaintiffs being to make their own arrangements for promptly taking delivery of the goods. The defendants having agreed, the plaintiffs paid Rs. 9,437-8-0 to them being the price of the goods as per invoice and took delivery of the bill of lading on 9th October, 1945 and entrusted the same to one Kuppuswami Mudaliar who was doing business as clearing and forwarding agent at Calcutta. The said Kuppuswami Mudaliar in turn engaged Messrs. Parry &38; Co., for clearing the goods and handed over to them the bills of lading on nth October, 1945. The goods were in due course cleared and sent to the plaintiffs at St. Thomas Mount in two consignments. The first consignment of 160 bundles made up of 479 bags was despatched on 20th October, 1945. at Cuddalore and they reached St. Thomas Mount on 26th October, 1945. The second consignment consisting of 7 bundles made up of 21 bags was despatched at Cuddalore on 30th October, 1945, and it reached St. Thomas Mount on 1st November, 1945. The plaintiffs stocked all these 167 bundles in their godown at Alandur. The case of the plaintiffs is that when they then inspected the goods they found them to be in a very damaged condition and that they complained about this to the defendants who sent one Kesavalal working in their office to inspect the goods, that the latter was satisfied that the goods were worthless and that it was agreed that the defendants would refund the amount and take back the goods. On 12th November, 1945, the plaintiffs sent a lawyer’s notice with the above allegations, Exhibit P-6. The defendants replied on 19th November, 1945, repudiating their liability and stating that the bills of lading having been handed over to them on 19th October, 1945, they were under no further liability to the plaintiffs and that the complaint could not be entertained. After some further correspondence the plaintiffs arranged with E.R. Prudhomme & Co., to have the goods surveyed. That was done on 27th December, 1945, after notice to the defendants. The surveyor reported that the goods were bleached in colour with no appearance or vitality that the stalks of a greater portion of the goods had come off that the seeds were pouring out and that the supply must have been from old stock. Thereafter the plaintiffs had the goods sold in public auction through Messrs. Murray &38; Co., after giving notice to the defendants. At the sale held on 26th January, 1946, the plaintiffs realised net Rs. 5,934-14-0. The suit is laid for recovery of Rs.5,446-10-4 as damages as per particulars mentioned in the plaint.

In Exhibit P-6 the plaintiffs took up the position that under the contract the goods must be “chillies of n

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