Dwarka Prasad, J. - (1.) IN this appeal a short but interesting question of law arises as to what should be the measure of damages when an agent sells goods of the principal below the limit placed upon such goods by the principal and without being able to justify the sale in terms of the contract or otherwise?
(2.) THE circumstances in which the aforesaid question arises may be briefly narrated: Hastimal, the original plaintiff, was doing his business as commission agent in the name of M/s. Fatehchand Moolchand. Kesarimal, whose legal representatives are the defendants, was dealing in wool and did his business in the agency of the plaintiff. 11 bales of wool belonging to Kesarimal were sent in the agency of Hastimal to Liverpool in England for sale. According to the plaintiff, the bales of wool were sold at the rate of 52 1/2 pence per pound and that the sale proceeds were duly accounted for in the mutual open and current account between the parties. On taking an account, a sum of Rs. 1325/4/ -was found outstanding against Kesarimal and as the same was not paid, Hastimal filed a suit for the recovery of the aforesaid amount along with interest, in all 5 sum of Rs. 1869/ - against the legal representatives of Kesarimal. The defendants contested the suit and took the plea that Kesarimal, who was the owner of 11 bales of wool had instructed the agent Hastimal to sell the said bales at a price not below 62 pence per pound and that the plaintiff should account for the loss of 9 1/2 pence per pound, in respect of 11 bales of wool said to have been sold at the rate of 52 1/2 pence per pound at Liverpool. According to the defendants, if the price of 11 bales of wool, sold at Liverpool, was calculated at the rate of 62 pence per pound, then the amount payable to the defendants by the plaintiff would far exceed the claim of the plaintiff, and on this ground the suit of the plaintiff was liable to be dismissed. The trial Court held that Kesarimal had placed a limit of 60 pence per pound for the sale of 11 bales of wool sent to Liverpool for sale. But relying upon the statement of Jhumurlal (P. W. 4) the trial Court came to the conclusion that the consent of Sire Kanwar, widow of Kesarimal was obtained for the sale of goods in question at a lesser price, as after the death of Kesarimal his widow had instructed the agent that the goods in question were not desired to be retained any longer and should be disposed of at the best available price. Having come to this conclusion, the trial Court decreed the plaintiff's suit. However, the learned District Judge, Pali, allowed the defendants' first appeal and dismissed the plaintiff's suit, holding that the consent of Sire Kanwar for sale of the bales of wool at a lesser price was not proved to have been given.
(3.) IN this second appeal it was not disputed that the limit placed by Kesarimal in respect of sale of 11 bales of wool sent to Liverpool was 60 pence per pound and not 62 pence per pound, as alleged by the defendants. The documents Ex. 80 to Ex. 87 on record go to show that a limit of 60 pence per pound was placed by Kesarimal for the sale of the goods in question. Ex. 84 is the letter of M/s. H. W. Hammand and Co. of Liverpool, in which they clearly admitted that they had taken notice of the limit of 60 pence per pound imposed on the consignment of 11 bales of wool, and they hoped that "we may get somewhere near it for cabling to you in case your reserve is not reached". The case of the plaintiff that after the death of Kesarimal his widow Shrimati Sire Kanwar had agreed to sell the goods for a lesser price, is based on the solitary statement of P. W. 4 Jhumar Lal, who was the Munim of the plaintiff's firm M/s. Fatehchand Moolchand. The evidence of this witness has not been relied upon by the first appellate Court and the learned District Judge has held that it was highly improbable that the consent of Smt. Sire Kanwar was obtained in the manner alleged by Jhumar Lal. It is not in dispute that Kesarimal died before March 7, 1958, and it has not been alleged that his consent was obtained. Smt. Sire Kanwar, who has appeared as D. W. 1, has categorically denied the story of alleged consent and has stated that her consent was never obtained. Thus there is oath against oath on this question and as the learned District Judge has placed reliance upon the statement of defendant Smt. Sire Kanwar in preference to the statement of P, W. 4 Jhumar Lal, Munim of the plaintiff, the question is purely one of appreciation of evidence. The finding of fact recorded by the first appellate Court, after an appreciation of the evidence on record, is that the consent of Smt. Sire Kanwar, widow of Kesarimal. or any other legal representative of Kesarimal was not obtained for selling the goods in question below the reserve price of 60 pence per pound, which was admittedly placed by Kesarimal during his lifetime on the sale of the consignment in question. Thus the conclusion that 11 bales of wool were sold at a price below the limit placed by Kesarimal, without the consent of the defendants, appears to be well founded and does not call for any interference. One more fact which appears to be significant in this respect is that in the letter Ex. 82 sent by the Bombay firm M/s. Moolchand Hastimal to M/s. H. W. Hammand and Co. Liverpool, in reply to their cable regarding the bid of 52 1/2 pence per pound, it was stated that the price was low, yet they authorised the Liverpool Company to sell the lot according to their best discretion and in case they did not get a better price, they were authorised to sell the goods at the rate of 52 1/2 d. per pound. The letter Ex. 82 contains a definite authorisation on behalf of the plaintiff to the Liverpool Company, but it makes no mention at all as to whether the consent of the principal had been obtained for the sale of the goods at the rate of 52 1/2 d. per pound.;