Decided on June 20,1901



Stanley, J - (1.) This is an action to recover damages for alleged breach of warranty. The pleadings are very simple and the evidence has been meagre. The plaintiff, who is a jute merchant in Calcutta, purchased from the defendant company in the end of September and beginning of October 1900 three lots of jute, containing in the (sic) ggregate 7,000 bales. According to the contracts the jute was to be of the standard quality of the mark known as T. S. N. Twos only. This mark is guaranteed to contain 40 per cent, of hessian warp. In the early part of: November the jute in respect of which the dispute has arisen was delivered in Calcutta in the flats Gorai and Khargosh and consisted of 6,000 bales.
(2.) Upon examination of the jute the plaintiff complained to the defendant company that it was not equal to the standard quality of the mark. The defendant company thereupon sent a Mr. Emin to examine the jute, but the plaintiff's press- house manager would not allow the coolies and as sorters to open the bales. The plaintiff explains the cause of this refusal to an old-standing ill-feeling between Mr. Emin and his press-house manager, and says that he himself afterwards met Mr. Emin and invited his to accompany him to the press-house, but he declined to do so.
(3.) Some correspondence then took place, and in the course of it the defendant company expressed their willingness that a survey should be made of the jute, and proposed that the arbitration should be held by the Bengal Chamber of Commerce. To this proposal the plaintiff sent a reply, stating among other things that in terms of the contract no mention was made of the Bengal Chamber of Commerce, and they would therefore hold a private survey.;

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