The main legal point established in the judgment is that in a sale of goods, the buyer is entitled to reject the goods and claim diminution of the price for the breach of warranty, as provided under the Sale of Goods Act.

1. This is a Letters Patent Appeal from the judgment and decree of Niyogi J. in second Appeal No. 418 of 1939, decided on 2nd February 1942.

2. The facts are simple. The plaintiff is the appellant who succeeded in the trial Court but failed in the first and second appeals. His case is that the Firm Radhakishan Naraindas, biri merchants, (respondent 1) purchased from him all the bidi leaves which were stocked in his godowns at Mauzas Umaria and Baghraji, for a sum of Rs. 1500 and that the purchaser paid Rs. 100 as part of the price on the same date. Defendant 2 (now represented by respondent 1(b)) executed on 8th February 1987, a document which is styled as a receipt but is really an agreement recording as well a memorandum of sale. This document, to which it may be necessary to'' refer frequently reads as follows:

Your bidi leaves, which are stored in five kothas (rooms) at mauza Umaria, (and) which number about 2,35,000, two lacs and thirty-five thousand, are contained in about 850, eight hundred and fifty, bags. Out of this, about 20, (twenty) thousand leaves are stored at mauza Baghraji. All these leaves excepting bardana (bags) have been purchased in whole lot from you for Rs. 1500, fifteen hundred rupees. On account of earnest money thereof you have been given a cheque for Rs. 100, one hundred rupees, on the Allahabad Bank. Remaining leaves in 20, twenty days (we) will remove the entire goods. (We) will pay the remaining amount. Hence (we) have executed this receipt so that it may remain on record and be useful at the time of necessity. Finis. Dated 8th February 1937, A.D.

3. The Courts below have found that the stocks at the two places did not exceed a total quantity of 1,48,275 gaddis in 470 bags composed of 1,17,575 gaddis in 382 bags at Umaria and 30,700 gaddis in 88 bags at Baghraji and that there were also 62 bags which were empty and some 2100 gaddis which were lying loose. The findings of the Courts below were that the buyer took delivery of 258 bags containing 77,300 gaddis and refused the rest.

4. The case of the buyer was that the sale was by sample and that as the remaining gaddis were not up to sample and as the quantity was short he was entitled to reject the balance of the goods and pay only for those which were up to sample and which he bad taken.

5. The two Courts below found that there was no sale by sample. The results reached by the two Courts below on other points were, however, different. The trial Court found that the sale was in one lot irrespective of quality or quantity and that the seller gave symbolical delivery by banding the keys of the godowns. The trial Court decreed the plaintiff's claim for Rs. 1061-14-0 after giving deduction for the amount paid by the defendant.

6. The first appellate Court held that only 258 bags were taken and they were the only goods of merchantable quality, that the goods were sold by description, the description being ''the amount of biri leaves contained in bags'', that there was no delivery till the buyer's servant went to Umaria in April and that the defendant (buyer) had no occasion to see the goods in question so as to rely on his own judgment as to their quality or quantity. The first appellate Court felt that the party not having pleaded his case under Section 16, Sale of Goods Act, was not entitled to reject the goods for bad quality but held, neverthless, that:

As there was a considerable shortage the defendant was entitled to take such goods as he wished, whatever the reasons that led to his decision. If A and B contract to buy and sell forty and twenty are found the purchaser who decides to take five cannot be compelled to take 20, though, of course, the purchaser cannot demand partial delivery.

No case or authority was cited in support of this by the learned District Judge. A decree for Rs. 48-2-6 was accordingly passed on the basis of 258 bags and the rest of the plaintiff's claim was dismissed.

7. Niyogi J., who heard the second appeal, formulated the