JUDGMENT Stuart, J.
1. The following facts are established on the evidence. Fazal Ilahi is a dealer carrying on business in Allahabad. He deals in fire-works as well as in other articles. Previous to the shabbarat festival of the 5th June 1917 he proceeded to various centres of trade, to purchase fire-works. He went to Calcutta, Bombay, Benares and Cawnpore. He finally purchased four boxes of Chinese crackers in Cawnpore. each of which contained 1,600 packets. He consigned these four boxes at the Collector- gung Parcels Office of the East Indian Railway Company, Cawnpore, to himself at Allahabad, by a parcels forwarding note dated the 30th of May 1917, in which the consignment it described as "four boxes said to contain patakha fire-works" i.e., Chinese crackers. He signed the forwarding note giving as his address Chauk, Cawnpore. This was apparently the address at which he was staying while he was in Cawnpore. His per- manent address is in Allahabad.
2. He booked the consignment at the parcels office and paid Rs. 38 in advance at parcels rates. The weight was two maunds and 29 seers. The consignment was booked on the 80th of May 1917. A receipt was given to Fazal Ilahi, No. 3,808, dated the 30th May, 1917, Exhibit 2. Faisal Ilahi's intention was to tell the crackers in Allahabad before and at the shabbarat. Having consigned the packages he went to Allahabad. The eonsignment not arriving, he sent two telegrams on the 2nd of Jane 1917, one to the Divisional Traffic Manager, Cawnpore, and the other to the General Traffii Manager of the East Indian Railway, Calcutta. On the 8th of June 1917, the Station Master, Allahabad, wrote in Exhibit 3 to Fazal Ilahi, that the packages were still lying at Cawnpore, as they could not be sent by passenger train under the Railway Regulations. The packages had been booked to be sent by passenger train as they were booked at the parcels office at paresis rates. The Station Master directed Fazil Ilahi either to remove the packages or authorise their despatch by goods train. On June 13th 1917 the Divisional Traffic Manager, Cawapore, wrote to the appellant in Exhibit 4, that the consignment had been incorrectly booked by passenger train under a misapprehension induced by his representations at the time of booking. This letter repeated the directions to remove the consignment, or authorise its despatch by goods train. On the 14th of June 1917, the Station Master, Cawnpore, sent Faza1 Ilahi a reminder in continuation of Exhibit 3. On the 19th of June 1917, the General Traffic Manager, Calcutta, replied in Exhibit 6 to Fazal Ilahi's telegram. In this latter he stated that the rules for the carriage of explosives were framed by the Government and that the Company had no authority to depart from them, and that the appellant had been advised on the day on which he tendered his consignment that the goods could not ba daspatched by passenger train. He further informed him that the goods were still at Cawnpore and concluded by adding these words "Instrustions have been issued to send them by goods train and you will be advised as to their despatch by the Divisional Traffic Manager, Cawnpore." Fazal Ilahi taking no action, the goods were despatched by goods train to Allahabad on the 23rd of June 1917 and arrived on the 28th of June 1917. Fazal Ilahi was called on to pay Rs. 19-9 freight charge as a condition precedent to receiving the goods. He refused to pay the amount or to take delivery. A notice dated the 25th of August 1917 issued to Fazal Ilahi by the Company, that if he did not take delivery after paying the charge, before the 20th of September, the goods would be sold by auction. He did not take delivery or pay the charge and the goods were sold by auction on the 20th of September 1917 for Rs. 31.
3. Fazal Ilahi instituted a suit on the 20th of November 1917 in the Court of the Munsif. Allahabad, claiming Rs. 400 for price of goods, Rs. 500 damages. Rs. 38 paid for Railway freight. Rs. 1-12-6 expenses for despatch of telegrams and 0.36 notice charges, in all Rs. 905 8. The East Indian Railway Company rallied that Fazal Ilahi knew that the consignment could not be despatched by passenger train and fraudulently induced their employees to accept the consignment for despatah by passengar train, that their servants having asked outside the scope of their authority, no contract had some into being, that the damages were excessive, that the articles were not worth more than Rs. 75 and that the Company were obliged under the rules to take no action and were not responsible. The Company offered to pay to the appellant without prejudice Rs. 31, the sale-proceeds of the fireworks, and Rs. 3-8, the freight charges already paid, less Rs. 19-9, the freight charges incurred. In the course of the evidence it came out that there was no justification for the allegation of fraud made against Fazal Ilahi. A clerk of the Halsey Road Agency, Cawnpore, was called, who deposed that on the 30th May 1917 a man unknown had come to that agency, and endeavoured to book a consignment of four packages of Chinese crackers by passenger train, and that he informed this man that such a consignment could not be sent by passenger train. As this witness was unable to identify the man in question as Fazal Ilahi or to connect the man with Fazal Ilahi, the Company failed to prove by tailing this witness any knowledge on the part of Fazal Ilahi that the consignment could not be sent by passenger train, or any fraud on his part. There was no other evidence to prove fraud, The evidence of the Railway officials showed that the parcels office at Collectorgunj was in charge of a senior clerk sailed Nand Lal. Munni Lal, a beginner^ was working under Nand Lal. Robertson, a Goods Inspector, and Fitzgerald, an Assistant Traffic Inspector, were on duty in the precincts of the office. On the evidence, Fazal Ilahi came to Nand Lal and asked him to book the packages at parcels rates by passenger train. Nand Lal refused to do this. Fazal Ilahi went to Fitzgerald. Fitzgerald ordered the parcels clerk to book the packages. On Fitzgerald's orders, Munni Lal booked the packages and gave Fazal Ilahi the receipt, Exhibit 2, receiving Rs. 3-8, Fazal Ilahi left the packages and went away. Robertson then refused to despatah the goods. There is some conflict between Nand Lal and Munni Lal, In spite of that conflict, this is the finding at which I arrive on the facts, the point not having been determined by the Courts below. I determine it under Section 103 of the Code of Civil Procedure. Fitzgerald, who gave evidence, has deposed that he was ignorant at that time of the fact that such a consignment could not be despatched by passenger train. Robertson was in the right in not despatching the consignment by passenger train, for under the rules for the conveyance of explosives by rail, which are binding under the law, Chinese crackers cannot be sent by passenger train. The Munsif did not decide whether there was or was not a valid contract. He found that Fazal Ilahi had incurred no damage and had committed no fraud. He gave Fazal Ilahi a decree for Rs. 14-15. Fazal Ilahi appealed. The learned Subordinate Judge heard the appeal. He decided that there was no valid contraat, that the parcels clerk had acted beyond the scope of his authority, that the Company was under no obligation to despatch the consignment to Allahabad or to claim freight charges for having done so. Finding that the Company was guilty of no negligence and that the sale was justified, he raised the relief to Rs. 34-8 only, Fazal Ilahi comes here in second appeal.
4. The first point I propose to decide is with regard to the value of the goods. The materials on the record are sufficient for the determination of this point, which was not decided by the Courts below and I decide it under Section 103 of the Code of Civil Procedure. I see no reason to disbelieve the evidence of Fazal llahi and Alla Baksh on the question of the price of the Chinese crackers. The defendant Company did not cross-examine Fazal Ilahi or Alla Baksh upon this point. They did not produce any rebutting evidence. The price fixed is a moderate price, working out at only one anna a packet. I find that the Chinese crackers were bought by Fazal llahi for Rs. 400.
5. The next point is as to the validity of the contract. The Courts below have made no attempt to examine the evidence on this point. The East Indian Railway Coaching Tariff in force at the period, Exhibit K, is on the record. At page 313, it states: "No explosives or other dangerous goods can be conveyed by any train carrying passengers, except of the kind and under the conditions specified in the Red Pamphlet of the rules for conveyance of explosives and of dangerous goods. The charge for such explosives and dangerous goods will be made at ordinary parcels rates." This Coaching Tariff is on sale and can be purchased by any passenger. Fazal Ilahi had an opportunity of purchasing it. It refers only to the rules and rates for the conveyance of passengers, luggage, parcels, live stock, carriages, etc. It does not purport to deal with the booking of goods by goods train. I consider that any person reading the rule which I have quoted would be justified in believing that he would have to go to a parcels office to book explosives, and that those explosives would be booked at parcel rates. He is not told anything as to a minimum charge, and would understand that he would have to pay according to the weight of the consignment. Further, he would understand that explosives might be conveyed by a train carrying passengers, although they would not necessarily be so conveyed, and is referred for information on this point to the rules in the Red Pamphlet. Those rules, he is told, decide the class of train by which such explosives would be carried. If he were not interested in knowing the class of train by which the explosives would be carried he would have no reason to examine the rules in the Red Pamphlet. The explosives here were four packages of fire-works and Fazal Ilahi had, in my opinion, every right to take those packages to the parcels office and to require decision of the question there, as to how they were to be despatched, and what he was to be charged upon them. Now, it is true that under the Explosives rules made by Government these fire-works could not be despatched by passenger train. They could be despatched only by mixed train on lines where no goods trains were running and elsewhere by goods train. Between Cawnpore and Allahabad no mixed train runs, so the consignment could only be despatshed by goods train. The Railway Company would break the law by despatching them by train other than goods train. But was the contract to carry the goods invalid? I find that it was not invalid, The official in charge had under a misapprehension offered to despatch the goods by passenger train. Under the law he could not do that, but he could carry out the contract by despatching them by goods train. Robertson was right not to despatch the consignment by passenger train, but be was wrong to keep it at the station instead of despatching it without unreasonable delay by goods train. It is doubtful whether the Company would be liable for damages in respect of the fact that Munni Lal, under the authority given to him by Fitzgerald, had agreed to despatch the goods by passenger train, although it might be urged on the authority of Dyer v. Munday (1895) 1 Q.B. 742 : 64 L.J.Q.B. 448 : 14 R. 306 : 72 L.T. 448 : 43 W.R. 410 : 59 J.P. 276 that the Company was responsible even in respect of that fact. But nothing turns on this point. There is no doubt as to the fact that the employees of the Company were acting in the course of their employment, even if they were acting outside the scope of their authority, but even if it be granted that the Company was not responsible for damages in respect of the fact that their agent had unwittingly committed them to break the law, the Company cannot escape liability for not carrying out the contract, in so far as they could carry it out within the law, by despatching the consignment without unreasonable delay by goods train. The reason why the Company refused to do this was apparently because the appellant had given them no authority, and because they claimed higher freight for despatching by goods train than the freight, which he had actually paid on the consignment at parcels rates. With regard to the first point, it was not necessary for the appellant to give the Company any further authority. He had asked them to deliver the goods and they could easily have carried out his wishes by despatching the consignment by .goods train. It was their duty to do this. If they had despatched the consignment by the first available goods train, it would have been despatched in all probability in a day or two and reached Allahabad, in ordinary circumstances, a day or so after it left Cawnpore. Robertson stated in his evidence: "Ordinarily it takes 10 or 12 hours for a goods train to reach Allahabad from Cawnpore. If these goods had been despatched by goods train the very day, it should have reached Allahabad the next day." It is true that, when it was despatched by goods train, the consignment did not reach Allahabad until some days had elapsed. But the question is not how long it would have taken for a particular goods train to reach Allahabad. The question is with regard to the negligence of the Tiff Miss Page No. 872-873 which the Railway Company claims to deduct Rs. 16-1, on account of the extra freight, chargeable on account of the consignment.
6. The plaintiff had purchased the goods through Alla Baksh from some merchants at Cawnpore for Rs. 400. The Railway Company had through its Assistant Goods Inspector and Assistant Parcels Clerk accepted to send the goods by passenger train from Cawnpore to Allahabad, According to the rules framed under the Indian Explosives Act (IV of 1884), the goods could not have been sent by passenger train, They could, however, have been sent by mixed train or by goods train in accordance with the directions laid down by the rules for their transport. It is probable that if the goods had been sent by goods train, the Railway Authorities might have been able to deliver the goods before the date fixed for the shabbarat festival; but the Company took a long time in determining whether the goods should be sent by goods train, and it was not till after the expiry of about a month that the goods actually reached Allahabad, by which time they had ceased to be of much marketable value.
7. The contention of the Railway Company is that the Assistant Parcels Clerk acted beyond the scope of his authority and they were not bound by his act. Section 227 of the Indian Contract Act (IX of 1872) lays down that "When an agent does more than he is authorised to do, and what he does beyond the scope of his authority can be separated from what is within it, the principal is not bound to recognize the latter part of the transaction." If this section had been applicable, it would have been open to the Railway Company to have said that they were bound by the part of the contract entered into by the parcels clerk, which related to the acceptance of the consignment for despatch to Allahabad, but they were not bound by that part of the contract, which related to the despatch of the said consignment by a passenger train. Section 237, however, lays down that "When an agent has without authority done acts or incurred obligations to third persons on behalf of his principal, the principal is bound by such acts or obligations if he has by his words or conduct induced such third persons to believe that such acts and obligations were within the scope of the agent's authority." The parcels clerk was held out to the world by the Railway Company as a person authorized on behalf of the Company to accept consignments for despatch. He was acting on behalf of his principal in the exercise of his apparent authority; and it is not open to the Railway Company to say that it was not bound by his act. As pointed out by their Lordships of the Privy Council in Ram Pertab v. G. Marshall 26 C. 701 : 3 C.W.N. 313 : 7 Sar. P.C.J. 455 : 13 Ind. Dec. (N.S.) 1048, the right of a third party against the principal on the contract of his agent, though made in excess of the agent's actual authority, was nevertheless enforceable, where the evidence showed that the contravting party had been led into an honest belief in the existence of the authority to the extent apparent to him. Illustration (a) appended to Section 237 states that where a person consigns goods to another person for sale, and gives him instructions not to sell under the fixed price, and a third person; being ignorant of such instructions, enters into a contract with the agent and buys the goods at a price lower than the reserved price, the person who orginally consigns the goods is bound by the contract. The Railway Company cannot, therefore, escape responsibility for the acts of its agent done in the ordinary coarse of its business. The plaintiff cannot be made to suffer for the incompetence of the agents whom the Railway Company employs. It was open to the Company to have sent the goods by a mixed train or a goods train instead of by a passenger train, if the rules applicable to the transport of such goods did not permit their despatch by a passenger train. They should not have detained the goods for an unreasonable period; and if they did so, they did it on their own responsibility. It is contended on behalf of the Railway Company that the goods could not have been sent under the Indian Explosives Act (IV of 1884) without prepayment having been made for their despatch; but the plaintiff had paid what he was asked to pay at the time when the consignment was accepted, and the only course open to the Railway Company was to have demanded any balance, which might have been due to it, at the time of the delivery of the consignment, if it was found that by some mistake of the clerk concerned an under-charge had been made.
8. Under Section 72 of the Indian Railways Act the position of the Railway Company tarrying goods for another, is that of a bailee; and it is bound to carry the goods under ordinary circumstances within a reasonable time. If any loss accrues to the owner of the goods on account of the delay in the delivery, the Railway Company is not liable for the same unless the delay is unreasonable. The Railway Company has not shown any valid reason for detaining the goods at Cawnpore from the 30th May 1917 up to the 23rd of June 1917, despite the telegrams sent by the plaintiff and the demands made at the Parcels Office at Allahabad for the delivery of the same. There is evidence to show that such goods are not ordinarily saleable in the market except at certain times of the year, and the plaintiff was justified in refusing to take delivery of the goods unless the Company was willing to compensate him for the deterioration of their value and for the loss caused to him by the delay. The plaintiff is, therefore, entitled to recover the value of those goods with ordinary profits, or, in other words, the price fetched at auction and compensation for the deterioration of their value with the damages suffered in consequence of the delay, including the expenses incurred in sending the goods, telegrams and notices. He is not entitled to the special profits, which, he says, the goods were expected to fetch, if they had been received in Allahabad before the shabbarat festival, because there was no guarantee by the Railway Company that the goods would reach before that date, and no notice was given by him at the time of the consignment that the goods were required at Allahabad in connection with that festival.
9. In Candy v. Midland Ry. (1878) 38 L.T. 226 a special printed label pasted on the top of a aonsignment, aontaining the words "Travellers' goods, deliver immediately," was held not to constitute a special contract between the parties, or a sufficient notice to the Railway Company of the purpose, for which the goods were being sent, so as to make that purpose common knowledge to both the parties and justify a claim for special damages. In G.W. Ry. Co. v. Redmayne (1863) 1 C.P. 329 : 35 L.J.C.P. 123 : 19 Jur. (N.S.) 692, where the plaintiff sent some goods from Manchester to his traveller at Cardiff, and the delivery of the goods was through the negligence of the Railway Company delayed until after the traveller had left Cardiff, and the plaintiff consequently lost the profits which he would have derived from a sale at Cardiff, it was held that in the absence of a notice to the defendants of the object for which the goods were sand the plaintiff could not recover from them such profits as damages for the delay. In Madras Railway Co. v. Govinda Rau 21 M. 172 : 8 M.L.J. 85 : 7 Ind. Dec. (N.S.) 478 the circumstances were somewhat similar. The plaintiff was a tailor, who delivered a sewing machine and some cloth to the Madras Railway Company (the defendant) to be sent to a place where he expected to carry on his business with special profit by reason of a forthcoming festival. Through the fault of the Company's servants the goods were delayed in transmission and were not delivered until some days after the conclusion of the festival. The plaintiff had given no notice to the Company that the goods were required to be delivered within a fixed time for any special purpose, and he had signed a forwarding note under a statement that he agreed to be bound by the conditions at the back; and one of those conditions was to the effect that the Company was not liable "for any loss of or damage to any goods whatever by reason of accidental or unavoidable delays in transit or otherwise." He sued to recover from the Company a sum on account of his estimated profits and the travelling expenses of himself and his assistant at the place of delivery and their expenses for food and lodging from the Company. But it was held that he was only entitled to claim his travelling expenses and the expenses of his servant and such ordinary profits which he might have expected to earn irrespective of the festival, In Simpson v. L. & N. W. Ry. (1876) 1 Q.B.D. 274 : 45 L.J.Q.B. 182 : 33 L.T. 805 : 24 W.R. 294 it was similarly held that unless the object of the sender was specially brought to the notice of the carrier, or circumstances were known to the carrier from which the object ought in reason to have been inferred, so that the object might be taken to have been within the contemplation of both the parties, damages could only be recovered for the natural consequences of the failure of that object. If the plaintiff could have waited for the goods till the 28th June 1917, he would have got the goods from the market much cheaper. By the delay he lost the profits which he would have earned from the goods, if they had been received in proper time; and he also suffered by reason of the deterioration of the value of the goods in consequence. I agree, therefore, with the order proposed.
10. The appeal is decreed in part, the appellant being allowed Rs. 400 for the costs of his goods, Rs. 100 damages, Rs. 3 8 Railway freight, Rs. 1-12-6 expenses of despatching telegrams and annas 3 6, the costs of registering notice, making a total of Rs. 505-8-0. We also award him full costs in all Courts, as we do not consider that the Railway Company have met him in a fair way over this matter. He will thus get Rs. 505-8-0 and his full costs of the Trial Court, together with interest at 6 per cent. per annum on both sums from the date of the institution of the suit to the date of realisation; full costs of the lower Appellate Court with interest at 6 per sent, per annum from the date of the institution of the appeal in the lower Appellate Court to the date of realization, and full costs of this Court with interest at 6 per cent. per annum from the date of the institution of this appeal to the date of realization. Costs in this Court will include fees on the higher scale.