The main legal point established in the judgment is that the contract was not a contract for sale of goods by sample and that the plaintiff had repudiated the contract by his notice, justifying the cancellation of the contract.

PANIGRAHI, J.

( 1 ) THE suit out of which this appeal arises was instituted by the respondent plaintiff for recovery of damages for an alleged breach of contract to sell 5 bales of KKK sarees by the appellant.

( 2 ) THE plaintiff's case is that defendant No. l, the appellant, is the proprietor of jagjiv Rao Mills, Gwalior, and that he entered into a contract for the sale of five bales of cotton sarees on 4th June 1941 through their local Agents, Messrs. Baharilal Madanlal, who were impleaded as defendants 2 and 3. It ia alleged that the contrast was entered into on the representation of defendants 2 and 3 who showed a sample of the sarees contracted for. This contract was formally confirmed by the appellant, defendant l, on 12th June 1941 and the terms of the contract are embodied in a printed agreement which is Ex. A in the case. The plaintiff's case is that he made several demands on defend ants 2 and 3 to supply the contracted articles bub that they failed to fulfil the terms of the contract and that ultimately be sent a registered notice (EX. l) to defendant 1 on 18th March 1932 demanding performance of the contract. The defendantappellant, in his reply dated 3rd April 1942 (EX. 1 a) informed the plaintiff that the bales contracted for had been despatched to there agents, defendants 2 and 3, in October 1941, but that on the plaintiff's refusal to take delivery of the articles he treated the contract as cancelled and that he was not guilty of the alleged breach of contract. The plaintiff claimed RS. 1195-15-9 as damages.

( 3 ) THE main contest on behalf of the defendants was that the contract was not for sale of goods by sample and that the only warranty of the contract was that the goods to be supplied should be of the standard marketable quality manu. factored by the Gwalior Mills, and that the description KKK did not import any particular quality of the cloth contracted for. Defendant 1 also pleaded that he actually despatched the goods to his local agents and that the R. R. for the consignments were offered to the plaintiffs by the said agents, defendants 2 and 3, personally and also through the Comilla Banking Corporation Ltd. , but that the plaintiff refused to accept delivery as the market was then dull, and repudiated the contract. The appellant wag, therefore, justified in treating the contract as cancelled. Defendants 2 and 3 were given up by the plaintiff in the trial Court, and the trial proceeded as against defendant I alone.

( 4 ) BOTH the Courts below held that the contract was a contract by sample and that the defendants having failed to deliver the goods according to sample, as demanded by the plaintiff, were guilty of a breach of the contract and accordingly awarded damages to the plaintiff.

( 5 ) IN second appeal, the main contention urged on behalf of the appellant is that the Courts below misconceived the scope of the contract; and that the contract was not a contract for sale of goods by sample, and that the Courts erred in admitting evidence which had the effect of varying the terms of the written contract (EX. A ). The contract is in a printed form in Hindi and a translation of it has been placed before us. Exhibit A merely indicates that the purchase was to be made of five bales sarees No. KKKKK (admitted to be a mistake for KKK), 12 x 42, @ Rs. 2-10-6 per pair, mill delivery, June-July shipment, Agents Beharilal Madanlal. On the reverse of this are given the conditions of the agreement of purchase.

( 6 ) THE main clauses of the agreement relied upon by the appellant are Clauses 2, 4, 8 and 9 which are as follows :

"clause 2. Details of purchase will be debited to the customer on the day of the booking of the goods in the Railway. The purchaser shall send money direct to the seller as soon as the R. R. will reach him. The seller is at liberty either to send the B. B. through the Bank or to realise money in advance or to proceed as he thinks proper, clause 4. It the purchaser does not release t