TMI Blog1960 (7) TMI 66X X X X Extracts X X X X X X X X Extracts X X X X ..... viduals. The suits are for recovery of damages for breach of contract on account of non-acceptance of the goods sold. 2. Brictly stated, the facts, according to the plaintiti's case are: that on 20-12-1947 the 2nd defendant arranged contracts Nos. 367 and 368 at Vijayavada between the plainliif on the one hand and the 1st defendant in O, S. No. 10 and also O. S, No. 13 of 1951 on the other hand, under which the 1st defendant in each case agreed to purchase from the plaintiff 100 bales of jute twine, each consisting of 5 Bengal maunds at the late of ₹ 59/- pet maund and it was agreed that the bales shall be delivered in two instalments of 50 bales to each one of the said 1st defendants in the months of February and March 1948. As the stipulated period drew near, the plaintiff sent the 1st instalment along with a hundi to each of the said first defendant in the month or February but the goods were refused and the hundi was dishonoured. Similar was the fate of the next consignment accompanied by a hundi. The plaintiff therefore after due notice sold the goods in open market on 25-4-1948 which fetched him a price at the rate of ₹ 44/- per Bengal maund. Thus, as a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eel jute twine of Nellimerla and Chittiyalasa Jute Mills, each bale consisting of 5 Bengal maunds at ₹ 59/- per maund and on 22-124947 he had sent, the confirmation slip to the 1st defendant . 7. This shows it was at the instance of the plaintiffs that the 2nd defendant moved the 1st defendant to purchase the said goods. But this story is not consistent with what the defendant has deposed on oath as D. W. 1 in the case. Therein he says: Defendant No. 1 in O. S. 10/51 phoned to me from Rajahmundry and said that he wanted to purchase 200 bales of Jute twine for the delivery in February and March 1948. He said that 100 bales-for him and 100 bales to defendant in O. S. No. 137, 51. He did not tell me rates. He wanted 50 bales to each of them in February and March 1948. I phoned to Galli Krishnamurthi at Calcutta and communicated the offer. He appeared to sell at ₹ 59/-per maund. On 21-12-1947 I intimated on phone to 1st defendant in O. S. 10/51 that the order has-been made pucca at ₹ 59/- per maund. I entered the entry in my business book . Thus while according to the written statement it was at the instance of the plaintiffs who instructed him to sell 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of the other. He admits D, W. 2 never before contracted on behalf of D. W. 3. So then, if the 1st defendant in O. S. 10/51 had instructed him (D. W. 1) to purchase for D. W. 3 (the 1st defendant in O. S. 13/51), such an instruction cannot be deemed to be an offer on behalf of D. W. 3 that may bind him or result in a binding contract so far as he is concerned, by its acceptance by plaintiff. It may be remembered that as brought out by the evidence, D. W. 3 was not in the station at all but was at Madras, during the period from 20-12-1947 to 25-12-1947. D. W. 3 categorically denies to have made any offer through D. W. 2 or D. W. 1. Thus the testimony of D. W. 1 does not even prima facie establish contractual obligation between D. W. 6 and the plaintiff. As regards the 1st defendant (D. W. 2), 2nd defendant admits that while requesting him to make a purchase, 1st defendant did not specify any rate at which he should purchase. He further admits that be (the 2nd defendant) himself did not communicate the rate to him for acceptance before the contract was confirmed. According to him and the plaintiff the contract was completed on 20-12:1947 itself on phone. But it is obvious at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ater stage. 8. The plaintiff has also relied on certain correspondence and the entries made in his books and also the books of the broker in order to establish the contract. (After discussion of documentary evidence His Lordship proceeded). Thus the entire documentary evidence is in no way helpful in establishing the case of the plaintiff. That being the case, it is obvious that the plaintiff has failed to establish that there was a contract of sale with defendant in each of the suits. Much capital has been made of the fact that D. W. 2 in Ex. A. 3 having denied the contract took exception to the quality of goods etc. It may be stated at this stage that the plaintiff had despatched the goods of wrong description i.e., not of the description which was alleged to have been purchased and D. W. 2 in Ex. A. 3 had pointed this Out. It is argued therefore that if there was no contract, how could such a plea have been taken. This argument cannot impress us and it did not impress the court below for the defendant had categorically denied the contract and took the pleas, which were obvious enough, in the alternative. That cannot come to the succour of the plaintiff. The truth remain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere intervener between the principals. He himself, considered as only a broker, has no possession of the goods, no power actual or legal or determining the destination of the goods, no power or authority to determine whether the goods belong to buyer or seller or either; no powers, legal or actual, to determine whether the goods shall be delivered to one or be kept by the other. He is throughout merely the negotiator between the parties. And, therefore, by the civil law, brokers were not treated as ordinarily incurring any personal liability by their intervention, unless there was some fraud on their part: .....And if all a broker has done be what I have hitherto described, I apprehend it to be clear that he would have incurred no personal liability to any one according to English law . That the position is not far different even under the Indian law can be gathered from the observations of the Chief Justice who delivered the opinion of the Full Bench in K. Radhakrishnarao v. Province of Madras, AIR1952Mad718 which are to be the following effect: A broker is an agent employed to make a bargain for another and receives a commission on the transaction which is usually ..... X X X X Extracts X X X X X X X X Extracts X X X X
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