Ramaswami, J. - (1.) his appeal is directed against the decree and judgment of our learned brother Basheer Ahmed Sayeed, in C. C. C. A. No. 9 of 1953, reversing the decree and judgment of the learned City Civil Judge, Madras, in O. S. No. 126 of 1949.
(2.) The defendants Sorabji Hormusha Joshi and Co., (referred to in this judgment as Joshi and Co.) are carrying on business in Bombay, from 1946. They import dried sheep skins from East Africa. The plaintiffs, Ismail and Ibrahim, are brothers doing business in hides and skins in Vaniyambadi in North Arcot District. The second plaintiff Ibrahim stays and does business in Bombay. The plaintiffs had two transactions with the defendants and of which we are concerned only with the transaction of October 1947. In October 1947 the second plaintiff met the defendants and learnt from them that a consignment of dried sheep skins from East Africa had arrived in Madras and was lying in the Madras harbour. The second plaintiff looked into the import invoices with the defendants showing their stock at Madras of East African raw dried sheep skins, in three lots, two of 6 bales each and one of 5 bales, bearing particular numbers and in all 17 bales lying in the Madras harbour. It was agreed that on payment of the price by the plaintiff in Bombay, the plaintiffs should get delivery orders and clear the goods in the Madras harbour through M/s. Maswood and Co., Madras. The lots purchased are described as sheep skins, shade dried, U. K. quality, comprising of Choice I and Choice II. This transaction was completed on 18-11-1947 and delivery orders to Madras Maswood and Co., for these 17 bales were handed over to the second plaintiff as against cash payment of Rs. 3900 plus 3600 plus 2750 totalling Rs. 10,250. The second plaintiff says that he went to the Madras harbour to take delivery of the goods through M/s. Maswood and Co., and found that some of the bales appeared on the face of them to have been water-damaged. One Mr. Marfatia is said to have been sent for according to the second plaintiff and he is said to have assured the latter that he would represent the matter to the defendant firm and do the needful for making a settlement. In the meantime Mr. Marfatia is said to have desired to be informed of the extent of damage and the quantity which would have to be rejected and taken back. Then the second plaintiff had engaged Ms/. Maswood and Co., to despatch the bales by train to Vaniyambadi on 25-11-1947 from the S. R. V. S. godown, where they had been taken on 2211-1947. The goods reached Vaniyambadi within a week thereafter. At Vaniyambadi the goods were unloaded and taken to the Katheeb Tanning Factory, owned by P.W. 6, the local Municipal Chairman. This was in the beginning of December 1947. Subsequently on an unspecified date three bales, of which one was of Choice No. I and the other two were of Choice No. II, were said to have been opened. The first two bales were not water-damaged but some of the skins were worm-eaten and had quality skins. In the water- damaged bale, some skins had only become bad on account of water-damage but there were no worms in any of the bales, vide the evidence of the first plaintiff as P.W. 3 (p. 49 of the printed papers). But the first letter to the first plaintiff Ex. A-6 does not refer to the opening of these three bales but merely mentions 'Only after receipt of the report of this person (Marfatia), Joshi will come for some settlement as written yesterday'. The next letter Ex. A-8 dated 23-12-1947 beyond stating that the purchasers had some complaints to make to this Joshi, does not specify what the matters was even as regards the three bales opened or anything about the other 14 bales. In fact Joshi's lieutenant one Khan seems to have told the first plaintiff to send a complaint and that if that was done they would look into the matter. The second plaintiff as a matter of fact sent a telegram on 24-12-1947 'Joshi says- given complaints in writing--he will consider--otherwise colour goods--report result'. In fact for the first time on 12-1-1948 a letter is written by a lawyer of Madras to the defendant firm (Ex. B-4). In that letter reference is made to the three bales which had been opened. The lawyer informs the defendants that it was found to the first plaintiff's surprise that in addition to the damaged condition caused by water, the skins to a considerable extent were worm-eaten and were for all practical purposes as good as worthless. The lawyer's notice requests the defendants to send an agent to be present at the opening of the other 14 bales at Vaniyambadi and arrive at an amicable settlement. Then after some correspondence on 11-2-1948 the Solicitors of the defendants in Bombay intimated the non-liability of the defendants and saying that the purchase was made by the plaintiffs in their own risk and that the matter became entirely closed on the delivery orders being ordered to M/s. Maswood and Co., and that Marfatia was not the representative of the defendant company but only their salesman: vide Ex. B-8. Then steps had been taken by the plaintiffs to notify the defendant company that they were going to have a survey made at Vaniyambadi. The defendant firm without prejudice to their contentions were prepared to send their representative to Vaniyambadi to watch the survey. Subsequently a survey had been made on 20-3-48 by one Obaidulla Sahib of M/s. Kothawal Mohamad Obaidulla Sahib and Sons, Tanners, Vaniyambadi, who seems to have been singularly unfitted for doing this survey. It is enough to extract the following admissions in his evidence as P.W. 4: "I have not imported or dealt with African skins. I do not know anything about the price or the market of African skins at any time...... This is the first time that I surveyed..... I do not know the condition or nature of the skins in the eleven bales.......... I cannot say whether the skins of the eleven unopened bales were of the 'U. K. quality' or of any other quality........... I have no experience of African skins nor do I know anything about their classification. I conducted the survey with my experience in dealing with Indian skins..... There was no damage to the other eleven bales." This surveyor's report dated 14-4-48 and got prepared by a third party was to the effect that the three bales opened by him were not of merchantable quality. In regard to the three bales opened already by the plaintiffs the skins of one bale had been tanned and they were found according to them as not being high grade skins but torn and with dents. The plaintiffs therefore are stated to have sold on 22-7-1948 the skins purchased by them in public auction which fetched Rs. 6,050/-. It is in these circumstances that the plaintiffs filed the suit out of which this appeal arises for recovery by way of damages of Rs 5,404-9-3.
(3.) The defendants raised various contentions which are reflected in the following issues: Did the defendants commit breach of the condition and warranty regarding the quality of the goods supplied and if so, are the plaintiffs entitled to damages for the same? Whether the plaintiffs are estopped from questioning the quality of the goods supplied for the reasons stated in paragraph 5 of the written statement? To any and what damages are the plaintiffs entitled? Is the first plaintiff a necessary party to the suit and entitled to the reliefs? To any and what other relief or reliefs are the plaintiffs entitled?;