TMI Blog1916 (4) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... during the jute season, and that the latter would take the said jute from the plaintiffs upon weigh-ment, and would pay the price of the same according to the market-rate. The defendants would advance money from time to time for purchase of jute, and would pay the price of jute after the close of the karbar after deducting the amounts so advanced. The plaintiffs would buy jute and store the same in the godowns of the defendants and under their care, and report to the defendants the goods stored on the very day they are stored. The plaintiffs would have no right to the goods so stored, nor would they be entitled to remove them from the godowns of the defendants, and that having once stored the goods in the godowns of the defendants, the plaintiffs would retain no other right or interest in them than the right to receive the price of the said goods, and that the ownership in the goods would pass to the defendants. 4. It is further stated in the plaint that this has been the local usage and practice observed at Chandpur, and the business of the defendants' firm ever since the establishment of their jute office at Chandpur had been carried on in accordance with the usage. The pl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the import godowns of the Companies (sometimes called the fariahs' godowns), where all sorts of jute, good, bad and indifferent, are mingled together out of which the Company makes its selection for purchase. The fariahs report only the quantity, but not the quality, and they are accustomed to over-report the quantity in order to get larger advances from the firms. On measurement the quantity is generally found to be short. Before the Company purchases the jute from the import godown (Fariahs' godowns) they select, approve and then weigh the goods. If there be moist goods, they are dried and sometimes sold to the Company, who has the option to reject moist jute, and bad and rotten stuff. The Company does not pay for rejected goods and the fariahs have a right to sell, and do sell, rejected goods to other firms. From the import godowns the goods are taken after weigh-ment to the selecting godowns where they are assorted. The price is settled after weigh-ment, and the Company's purchase is complete after the price is settled, which may be done a week after. After the weigh-ment in the import godown, it is taken that the goods are sold to the Company. The Company does ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ething to the goods, and a case where nothing remains to be done by the seller is pointed out in the two illustrations to the section. In illustration (a), which is taken from the case of Simmons v. Swift (1826) 5 B. C. 857 : 8 Dowl. Ry. 693 : 5 L.J. (O.S.) K.B. 10 : 29 R.R. 438 : 108 E.R. 319, the stack of bark is to be weighed and delivered by the seller, part of it is weighed and delivered to the buyer: the ownership of the residue is not transferred to the buyer until it has been weighed pursuant to the contract. In illustration (b), which is taken from the case of Turley v. Bates (1863) 2 H. C. 200 : 33 L.J. Ex. 43 : 10 Jur. (N.S.) 368 : 10 L.T.(N.S.) 35 : 12 W.R. 438 : 133 R.R. 639, the contract is to sell a heap of clay (as a whole) at a certain price per ton, the seller is to load the clay in his own carts and to weigh each load at a certain weighing machine. Here nothing remains to be done by the seller, the sale is complete and the ownership of the heap of clay is transferred at once, Referring to the cases on the point, and to the rule that property does not pass where anything remains to be done to the goods for the purpose of ascertaining the price, Channel, B., ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he property should pass. 17. The learned Chief Justice further observed as follows: We are dealing with the case of a specific chattel. I agree to sell to a man a specific thing--say a stack of hay, or a stack of corn?--I agree to sell him that specific thing, and lie agrees to buy it; the price undoubtedly remains an element of the contract, but we agree, instead of fixing upon a precise sum, that the sum shall be ascertained by a subsequent measurement. What is there to prevent the parties from agreeing that the property shall pass from one to the other, although the price is afterwards to be ascertained by measurement? I take it that is the bread substantial distinction. If, with a view to the appropriation of the thing, the measurement is to be made as well as the price ascertained, the passing of the property being a question of intention between the parties, it did not pass because the parties did not intend it to pass. But if you can gather from the whole circumstances of the transaction that they intended that the property should pass, and the price should afterwards be ascertained, what is there in principle, what is there in common sense or practical convenience whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te from the plaintiffs upon weigh-ment and the evidence shows that the fariahs and the Company have both got Tally Books , both enter the weights in their respective books when the goods are weighed, and it is after the weigh-ment that the Company removes the goods from the store godown to another godown. It is not, therefore, altogether clear, although this particular point need not be pressed, that the seller had nothing to do in connection with the weighing of the jute. 26. Then, again, there is the question of selection. The evidence shows that jute, good and bad, is stored in the import godown, and the Company selects good jute, and has the option of rejecting bad jute. Some stress was laid on behalf of the appellants upon the fact that the Company is bound to purchase all passable goods stored in the import godown, and although they have the right to reject wet jute, there is some evidence to show that they are bound to purchase such jute when dried. But it is clear that the Company has the option to reject bad jute altogether, and even if the Company is bound to purchase wet jute when dried, the fariahs have to dry it. The seller, therefore, in such a case has to do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... third insurance, however, speaks of the jute as belonging to the defendants and under the circumstances it may be taken that the first two insurances were also effected on the jute as belonging to the defendants. But the defendants had an interest in the goods, and the insurance appears to have been intended for protection of their own interest in the jute, not for the protection of the seller's interest which they were not bound to insure. The insurance did not cover the entire quantity of the jute which was burnt. 30. The defendants, therefore, were entitled to apply the whole of the amount which they received under the policies of insurance to indemnify themselves against the loss which they themselves had actually sustained, and were not bound to apply any portion of it to the benefit of the plaintiffs. 31. It appears from the evidence that several jute firms at Chandpur bore the loss when jute was destroyed by fire, but Mr. Mackertich says: there is no one system or one rule at Chandpur by which all the Companies should bear the loss in case the goods stored in the fariahs' godowns are burnt. Each firm has got its own system. 32. It appears that in most of ..... 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