Breach of warranty as to quality.

JUDGMENT :- The appellant herein is the defendant in the suit. They are a firm at Amraoti in Madhya Pradesh engaged in selling toor dhal and other commodities. The plaintiff in the suit is a firm of dealers in Salem. Between 3-8-1953 and 5-8-1953, a contract was entered into between the plaintiff and defendant under which the defendant agreed to supply dhal of the description of Damangan Toor dhal at Rs.52 a bag under the "Bilty" system as it is known in common parlance. The goods were booked at Amaraoti by rail on or about 6-8-1953 and the railway receipt along with the invoice for Rs.12,033/- was sent by the defendant to the plaintiff through the Central Bank of India. The plaintiff paid the price of the hundi as well as the railway freight (Rs.838-14-0) and took delivery of the goods at Salem on 13-8-1953. He found that the goods were damaged by moisture. The railway receipt itself contained a note that at the time the goods were loaded in the train in Madhya Pradesh they had been drenched by rain. They were also mixed with broken bits and husk but with this part of the damage to the goods we are not concerned in this second appeal. We are only concerned with the damage to the goods caused by rain at the time it was loaded at Amraoti in Madhya Pradesh. The plaintiff sent a telegram to the defendant on 13-8-1953 stating that all the bags were wet through rain damage, and that there were also broken bits and husk, that the goods were stocked as the sellers and, requested the seller to send his agent with the hundi amount. To this telegram the defendant replied on 15-8-1953 by wire stating that when the dhal was loaded it was not wet that the plaintiff should not take delivery but keep the goods in the railway station, and that a party of Damangan was ready to come with the amount.

This was followed by another telegram by the defendant on 17-8-1953, to the plaintiff:

"You have not telegraphed us before taking delivery and have stocked. Hence Damangan party not admitting."

The plaintiff replied on 19-8-1953 to this saying "Cannot (be) accepted; see registered letter. Accordingly remit amount". On 19-8-1933 a registered letter was accordingly sent by the plaintiff stating that he could not accept the contract and asking the defendant to take back the goods, failing which the plaintiff would sell the goods and that the defendant would be responsible for the loss. These claims were denied by the defendant in the reply letter sent on 29-8-1953. To this last-mentioned letter the plaintiff sent a reply on 11-9-1953 stating that the defendant was liable for the damage to the goods, that the goods have been examined by the Chamber of Commerce, Salem, in the meanwhile who had certified to the damage and that if the defendant did not take delivery of the goods within seven days of the receipt of the notice, after paying the plaintiff an amount arrived at by adding to the price of the goods, the other expenses like freight and so on, the plaintiff would be compelled to sell the goods in public auction at the defendants risk and that the defendant would be liable for all costs and damages. To this letter, the survey report of the Salem Chamber of Commerce dated 9-9-1953 was enclosed. To this also the defendant replied stating that the fault was with the plaintiff in taking delivery of the goods and on not complying with the defendants wire to leave the goods at the railway station and, therefore, the defendant was not liable for the damages claimed.

2. The goods were sold by auction between, 7-10-1953 and 20-10-1953 and they fetched an amount of Rs.12002-2-0. The plaintiff filed the suit for recovery of Rs.2881/- and odd representing the loss suffered by him on account of the goods not being in accordance with the description, based upon the lesser value realised on the re-sale and the expenses incurred by the plaintiff over railway freight and so on.

3. The defendant denied that the goods were wet and asserted that the goods were desp