A. M. AHMADI, J. ( 1 ) THIS Second Appeal is directed against the order passed by the learned Civil Judge J. D. Baria dismissing the plaintiffs suit with costs which came to be confirmed by the learned District Judge Panchmahals Godhra by his judgment and decree dated 23rd February 1976 2 The broad facts giving rise to the present litigation are almost admitted. The appellant-plaintiff is a registered Co-operative Society carrying on business in timber charcoal etc. in Devgadh Baria. Two heaps of charcoal described as lots Nos. 9 and 10 comprising 567 and 886 Boras (gunny bags of the standard size of 56 x 32) were put up for sale by public auction on 28th June 1971 at the Piplod Depot of the appellant-Society. The Range Forest Officer Shri Ghanshyam Shivnath Pande was present at the time of the said auction sale. Before the offers were invited from bidders the terms regarding the auction sale were read over to the bidders by Kantilal Purshottamdas the salesman of the appellant-Society. These terms are contained in a printed leaflet and are on the record of the case at Ex. 47. Term No. 2 indicates that the entire lot was put up for sale and the bids were to be made for the entire lot as a single unit. Term No. 3 which is material for our purpose reads as under:- after the aforesaid terms were read out to the bidders bids by ballots were accepted and lot No. 9 was sold to a merchant who offered to pay Rs. 10553. 53 ps. under the ballot note Ex. 26. The highest bid for lot No. 10 was received from respondents-defendants who offered Rs. 17985. 86 ps. Both these bids being the highest were accepted at the auction sale and sanctioned by the Range Officer in whose presence the sale took place. This is clear from Exhs. 26 and 36 which bear the signatures of the Range Officer Shri Pande in token of having sanctioned the said two bids. According to term No. 8 in Ex. 47 the highest bidder whose bid was accepted had to make the payment within 90 days or at the time of receiving delivery whichever was earlier. This is clear from Exhs. 26 and 36 which bear the signatures of the Range Officer Shri Pande in token of having sanctioned the said two bids. According to term No. 8 in Ex. 47 the highest bidder whose bid was accepted had to make the payment within 90 days or at the time of receiving delivery whichever was earlier. On the accepted bids bills were issued in respect of both the lots on 29th September 1971 Lot No. 9 which was purchased by another merchant was subsequently taken over by the defendants and thus the defendants were liable to pay Rs. 28 540. 39 ps. in respect of both the lots to the appellant-Society. However when the defendants took delivery of the charcoal in lots Nos. 9 and 10 they paid an amount of Rs. 19 844. 8 ps. leaving a balance of Rs. 8 49 ps. The defendants refused to pay the balance to the appellant-Society on the ground that the charcoal in the two lots was not of the quantity mentioned at the time when the auction bids were invited and the short fall was of the value exceeding Rs. 8 495. 49 ps. and invited they were not liable to pay the balance to the appellant-Society. The appellant-Society thereupon served the defendants with a notice dt. 20th February 1973 calling upon them to pay the balance to which the defendants sent a reply on 28th February 1973 setting up the same plea. According to the defendants they were entitled to receive approximately 1453 boras of the standard size mentioned in the terms read out at the auction sale but instead they had received delivery of only 864 boras and hence they were not bound to pay the price for the short fall of 589 boras which were not delivered to them. As the defendants failed to make the payment on the above plea the plaintiff-appellant filed a Suit No. 48/73 in the court of the learned Civil Judge Junior Division Baria for the balance amount together with interest and costs. The learned Civil Judge came to the conclusion that term No 3 reproduced above was in the nature of a warranty and placing reliance on the decision in Harnarain Ramchandra Jaiswal v. Firm Radhakisan Narayandas. The learned Civil Judge came to the conclusion that term No 3 reproduced above was in the nature of a warranty and placing reliance on the decision in Harnarain Ramchandra Jaiswal v. Firm Radhakisan Narayandas. A. I. R. 1949 Nagpur 178 dismissed the suit with costs on 4th December 1974 Against the said order of dismissal the Society preferred an Appeal being Appeal No. 105/74 in the court of the learned District Judge Panchamahals at Godhra. The learned District Judge also came to the conclusion that the aforesaid term read out at the auction sale amounted to a warranty and placing reliance on Harnarains case he confirmed the order of dismissal passed by the learned trial Judge. It is against this view taken by the two courts below that the present appeal is preferred by the original plaintiff -. Society. ( 2 ) AT the hearing of this Second Appeal Mr. Zaveri the learned advocate for the appellant submitted that specific goods were sold by the plaintiff Society in two lots which were in full view of the bidders and the mention of the number of boras contained in each lot was merely an estimate which did not form part of the contract and was therefore not a warranty as held by two courts below. He also submitted that on a close scrutiny of the decision in Harnarains case on which reliance has been placed by both the courts below it becomes obvious that it has no application so far as the facts of the present case are concerned. The principal question which therefore arises for consideration is whether term No. 3 read out at the auction sale at the time of inviting offers amounts to a warranty as held by the two courts below. ( 3 ) A contract may consist of a single term or it may have more than one term. Where a contract has more than one term the nature and import of each term has to be considered in a contextual setting. Very often courts are confronted with the question whether a particular statement is a term of the contract or a mere representation. If the statement is an essential term of the contract it is a condition breach whereof allows the other party to repudiate the contract. Very often courts are confronted with the question whether a particular statement is a term of the contract or a mere representation. If the statement is an essential term of the contract it is a condition breach whereof allows the other party to repudiate the contract. If the representation or the statement though forming part of the contract is not vitally important to the subject matter of the contract but is merely collateral to the main performance of the contract it can be termed a warranty breach thereof may give the opposite party a right to an action in damages. If the representation does not from part of the contract that is if it is neither a condition or a warranty it amounts to an expression of opinion not intended to enter the bargain and its nonfulfilment does not give rise to Any right to a legal action. Thus if the parties considered the term as an essential feature of the contract it is a condition; if they regarded it as a subsidiary or collateral term of the contracts it is a warranty; but if they considered it neither it is a mere representation or expression of opinion not forming part of the contract nonfulfilment whereof is of no legal consequence whatsoever. Whether a stipulation in a contract is a condition or warranty or neither would naturally depend on the construction of the contract in each case. (See sec. 12 of the Sale of Goods Act 1930 hereinafter called the Act ). ( 4 ) WE are concerned with the sale of goods namely charcoal by auction. A contract of sale of goods is a contract whereby the seller transfers or agrees to transfer the property in goods to the buyer for a price. Such contract may be made in writing or by word of mouth or partly in writing and partly by word of mouth or may be implied from the conduct of the parties. The goods which form the subject-matter of a contract of sale may be either existing goods or future goods. Where the contract is for the sale of specific goods meaning thereby goods identified and agreed upon at the time the contract of sale is made the property in them is transferred to the buyer at such time as the parties to the contract intend it to be transferred. Where the contract is for the sale of specific goods meaning thereby goods identified and agreed upon at the time the contract of sale is made the property in them is transferred to the buyer at such time as the parties to the contract intend it to be transferred. Now it is the duty of the seller to deliver the goods and the buyer to accept the goods according to the terms of the contract. The two material provisions of the Act may now be set out as under:-"37 (1) Where the seller delivers to the buyer a quantity of goods less than he contracted to sell the buyer may reject them but if the buyer accepts the goods so delivered he shall pay for them at the contract rate. 64 In the case of a sale by auction:- (1) Where goods are put up for sale in lots each lot is prima facie deemed to be the subject of a separate contract of sale; (2) the sale is complete when the auctioneer announces its completion by the fall of the hammer or in other customary manner; and until such announcement is made any bidder may retract his bid; (3) a right to bid may be reserved expressly by or on behalf of the seller and where such right is expressly so reserved but not otherwise the seller or any one person on his behalf may subject to the provisions hereinafter contained bid at the auction. (4) where the sale is not notified to be subject to a right to bid on behalf of the seller it shall not be lawful for the seller to bid himself or to employ any person to bid at such sale or for the auctioneer knowingly to take any bid from the seller or any such person; and any sale contravening this rule may be treated as fraudulent by the buyer. (5) the sale may be notified to be subject to a reserved or upset price; (6) if the seller makes use of pretended bidding to raise the price the sale is avoidable at the option of the buyer". IT is plain that if the goods are sold in separate lots by auction each lot is prima facie the subject of a separate contract. The sale in respect of each lot becomes complete on the fall on the auctioneers hammer. IT is plain that if the goods are sold in separate lots by auction each lot is prima facie the subject of a separate contract. The sale in respect of each lot becomes complete on the fall on the auctioneers hammer. It is thus obvious that the display of the goods in lots and the auctioneers call to bid can amount to a mere invitation and each bid received would be the offer which would turn into a contract on its acceptance by the auctioneer as agent of the owner. (See A. V. Thomas and Co. Ltd. v. Deputy Commissioner of agricultural Income Tax and Sales Tax Trivandrum A. I. R. 1964 S. C. 569 at 571 ). ( 5 ) NOW therefore it is the duty of the seller to deliver to the buyer the quantity of goods stipulated in the contract. However a slight deficiency in the quantity will not title the buyer to reject the goods or claim damages on the principle de minimis non curat lex because some flexibility in such contracts of sale of goods in bulk is unavoidable and trivial shortfall in quantity must be over looked. If the difference is however substantial as noted in the present case the buyer would be justified in resorting to sec. 37 (1) of the Act. The said provision is however subject to any usage of trade special agreement or course of dealing between the parties. Of course in order to press this provision into service the buyer must show that the term regarding quantity is a condition or warranty and not a mere innocuous representation. To introduce elasticity in regard to the term as to the quantity expressions of approximation such as about more or less approximately etc. are employed to accord to the seller an approximative or reasonable latitude in that behalf. As to when use of such expressions would amount to a warranty would depend on the construction of the contract in each case. ( 6 ) SEVERAL decisions were cited on the question whether term No. 3 read out by the auctioneer before the offers were invited was intended to convey a warranty or a mere estimate of the quantity of goods put up for sale. ( 6 ) SEVERAL decisions were cited on the question whether term No. 3 read out by the auctioneer before the offers were invited was intended to convey a warranty or a mere estimate of the quantity of goods put up for sale. ( 7 ) IN Behn v. Burness 3 B. and S. 175 at 755 Williams J. delivering the judgment of the Exchequer Chamber said:- With respect to statements in a contract descriptive of the subject-matter of it or of some material incident thereof the true doctrine established by principle as well as by authority appears to be generally speaking that if such descriptive statement was intended to be a sustantive part of the contract it is to be regarded as a warranty. ( 8 ) IN De Lassale v. Guildform ( 1901 ) 2 K. B. 215 the plaintiff and the defendant negotiated for the lease of a house by the latter to the former. The terms were arranged but the plaintiff refused to hand over the counter part that he had signed unless he received an assurance that the drains were in order. The defendant verbally represented that they were in order to the plaintiffs wife and daughter whereupon the counterpart was handed over to him. The document of ease did not contain any reference to the drains in respect of which there was the aforesaid oral representation. Subsequently it was found that the drains were not in order and an action was brought to recover damages for breach of warranty. Dealing with the question whether the defendants representation amounted to a warranty Lord. A. L. Smith Master of Rolls stated the test thus at page 221:-"now what constitutes a warranty in law or a mere representation ? To create a warranty no special form of words is necessary. It must be a collateral undertaking forming part of the contract by agreement of the parties express or implied and must be given during the course of the dealing which leads to the bargain and should then enter into the bargain as part of it". IT was therefore held that the said verbal representation about the drains being in good order was clearly a warranty for the breach whereof an action in damages was maintainable. IT was therefore held that the said verbal representation about the drains being in good order was clearly a warranty for the breach whereof an action in damages was maintainable. ( 9 ) IN Krell v. Henry (1903) 2 K. B. 740 the defendant agreed to hire from the plaintiff a flat in Pall Mall for June 26th and 27th on which days it was announced that the coronation processions would take place and pass along Pall Mall. The contract contained no express reference to the coronation processions or to any other purpose for which the flat was taken. A deposit was paid when the contract was entered into. As the processions did not take place on the days originally fixed the defendant declined to pay the balance of the agreed rent. An action was brought to recover the same. Darling J. held that there was an implied condition in the contract that the procession should take place and gave judgment for the defendant. The plaintiff filed an appeal and the Court of Appeal affirmed the said decision holding that the inference that could be drawn from surrounding circumstances was that file taking place of the processions on the days originally fixed along the proclaimed route was regarded by both the parties as the foundation of the contract though the contract did not contain any express reference to the coronation processions. The fact that the coronation processions were to pass along Pall Mall on the fixed days gave the premises a special character and the subsequent change in the programme robbed it of that character and rendered the premises of little value. It was therefore held that since the premises had become unfit for the purpose for which they were taken the bargain was clearly off. ( 10 ) THE aforesaid authorities clearly go to show that if a representation forms the basis of the contractor an important limb of the contract notwithstanding the fact that in the subsequently drawn up contract no reference is made to the said representation a breach of the representation would give the opposite party a right to damages or a right to repudiate the contract depending on whether the representation amounts to a warranty or a condition. It becomes obvious from Lord Smiths test extracted above that an affirmation made at the time of sale becomes a warranty if it appears on evidence to have been intended by the parties to enter the bargain. In determining whether it was so intended the decisive test is whether the seller assumes to assert a fact of which the buyer is ignorant or merely states an opinion upon a matter of which the seller has no special knowledge and on which the buyer may be expected also to have an opinion and to exercise his own judgment. In the former case it amounts to a warranty in the latter it is a mere representation not amounting to a warranty ( 11 ) MR. Zaveri however vehemently contended that the use of the words about more or less approximately and the like in the terms of the contract in regard to the quantity agreed to be sold lend clear indication that they are words of approximation only not amounting to warranty and in support of this submission he relied on a number of authorities which may now be considered. ( 12 ) IN Goldsbrough Mort and Co Ltd. v. Carter ( 1914 ) is Commonwealth Law Reports 429 the defendant sold under a contract dt. 26th June 1912 the undermentioned stock more or less namely about 1600 Canonbar bred ewes six years off shears 1912 about 2400 Canonbar bred ewes seven years off shears 1912 now depasturing on Canonbar Station being the stock recently inspected for the purchaser by self at 5 S; 6 d. per head for the six year old ewes and 5 s. per head for the seven year old ewes. The vendors undertook to deliver and the purchaser to count and take delivery of the whole of the above mentioned stock at Canonbar on a date in September or October 1912 to be mutually arranged with five per cent (5 per cent) rejection allowed. The estimate of the number of sheep was taken from the Book Muster which disclosed how many sheep were shorn how many disposed of how many were known to have died and so on. The result would be a mere estimate more or less accurate subject to climatic conditions which may have increased or reduced the natural death rate. The estimate of the number of sheep was taken from the Book Muster which disclosed how many sheep were shorn how many disposed of how many were known to have died and so on. The result would be a mere estimate more or less accurate subject to climatic conditions which may have increased or reduced the natural death rate. It appeared that in June shortly before the date of the contract the drought was succeeded by cold winter rains. Both during the drought and after its breaking up the rate of mortality was very large especially amongst sheep of the class in question. Before the end of the drought many of the sheep were known to have died and many more were dying in July and August. On the mutually arranged date of delivery 25 October only 932 sheep could be found in existence of which the purchaser rejected 42 leaving a balance of 890. Then action was brought to recover damages for the deficiency. It was held that as the contract was for the sale of specific sheep comprising the two lots described in the contract the existence of cattle at the date of the contract was an implied condition governing the contract i. e. the sheep which were in existence on that date could only be the subject matter of the contract between the parties. Griffith C. J. while dealing with the question whether a warranty could be spelt out made the following observations:-"the test for determining whether a term is to be implied in a contract is whether it must have been in the contemplation of both parties to the transaction that the asserted obligation should be undertaken". After pointing out the circumstances relevant for the application of the said test the learned Chief Justice proceeded to make the following pertinent observations:-"a statement of a number with words about or more or less or both may in my opinion in some cases operate as a warranty especially if the price is a lump sum". After pointing out the circumstances relevant for the application of the said test the learned Chief Justice proceeded to make the following pertinent observations:-"a statement of a number with words about or more or less or both may in my opinion in some cases operate as a warranty especially if the price is a lump sum". POINTING out that the sheep were roaming on the Canonbar Station covering 200 0 to 300 0 acres and did not constitute an isolated flock or flocks but they mingled with scores of thousands of other sheep it was said that on the date of the contract the parties must be aware that the number stated was a mere estimate made by the vendors upon such material as was then available. It was in the backdrop of the aforesaid facts that the court came to the conclusion that the words more or less in the contract did not form part of the contract but were merely words of estimation based on the entry in the station book maintained on the Station. The decision therefore turns on its peculiar facts. ( 13 ) BRADLEY J. of the American Supreme Court in Daniel F. Brawley v. United States 96 U. S. 168 was dealing with a contract for the sale of ascertained goods wherein the quantity was named with the qualification more or less. The contract was for the delivery of 880 cords of wood at a government post more or less as shall be determined to be necessary by the post commander; the quantity designated was to be regarded merely as an estimate. The quantity named in the contract (880 cords) was hauled to a distance of 360 miles but only 40 cords were received and accepted by the Post Commander for which payment was made. The quantity named in the contract (880 cords) was hauled to a distance of 360 miles but only 40 cords were received and accepted by the Post Commander for which payment was made. In an action brought for breach of warranty the following test was applied:-"where a contract is made to sell or furnish certain goods identified by reference to independent circumstances such as an entire lot deposited in a certain warehouse or all that may be manufactured by the vendor in a certain establishment or that may be shipped by his agent or correspondent in certain vessels and the quantity as named with the qualification of about or more or less or words of like import the contract applies to the specific lot; and the naming of the quantity is not regarded as in the nature of a warranty; but only as an estimate of the probable amount in reference to which good faith is all that is required of the party making it. In such cases the governing rule is somewhat analogous to that which is applied in the description of lands where natural boundaries and monuments control courses and distances and estimates of quantity. BUT when no such independent circumstances are referred to and the engagement is to furnish goods of a certain quality or character to a certain amount the quantity specified is material and governs the contract The addition of the qualifying words about more or less and the like in such cases is only for the purpose of providing against accidental variations arising from slight and unimportant excesses or deficiencies in number measure or weight. IF however the qualifying words are supplemented by other stipulations or conditions which give them a broader scope or a more extensive significancy. then the contract is to be governed by such added stipulations or conditions". FINDING that the contract was not for the delivery of any particular lot or any particular quantity but to deliver such quantity as shall be determined to be necessary by the post commander the Court held that the substantial engagement was to deliver what was determined to be necessary and the words 880 cords of wood more or less were merely words of estimation. It was therefore found that the determinative words of the contract clearly indicated the scope and significance thereof and rendered the words as to quantity mere words of estimation. It was therefore found that the determinative words of the contract clearly indicated the scope and significance thereof and rendered the words as to quantity mere words of estimation. The third test was therefore applied to the facts of that case. ( 14 ) THE Court of Appeal in A. Louis Dryfus Et Cie v. P. Parnaso Cia Naviera S. A. 1960 (1) All England Reports 759 was dealing with a charter party agreement which provided that the vessel shall proceed to La Pallice and there load a full and complete cargo of not more than 10 450 tons and not less than 8 550 tons wheat in bulk quantity in owners option to be declared by the master in writing on commencement of loading At La Pallice the master gave notice purporting to be a declaration that the approximative cargo to the holds will be. . . total 10 400 tons. The charterers accepted the notice without demur. The vessel was down to her winter marks when she had loaded 10 69 tons i. e. a quantity that was 331 tons or 3. 18 per cent less than 10 400 tons. The charterers claimed to be entitled to damages in respect of expense incurred by them by reason of the failure to ship the 331 tons which they had kept ready. It was held that the ship owners had not committed any breach of contract because firstly the masters notice was a declaration which sufficiently defined the quantity for the purposes of the option and substituted it for the maximum and minimum limits stated in the contract and secondly in view of the word approximative some latitude greater than a de minimis variation was allowed thereby in the quantity to be loaded and in the absence of trade usage a variation of some three percent was reasonable and within the tolerance allowed. ( 15 ) TWO Indian cases were cited at the hearing; one which has been relied upon by both the courts below and another of the Kerala High Court in M. Alavi and Another v. State A. I. R. 1960 Kerala 91 That was a case in which the District Forest Officer had called for sealed tenders for the purchase of the right to cut and remove 1269 enumerated standing trees in coupe No. 5 of Edacode Block in Nilambur reserve forest and having an estimated volume of 44 500 cubic feet. Tenderers were directed to quote an amount exceeding Rs. 40 700 exclusive of salestax for all the timber that was so offered. The plaintiff firms tender for Rs. 49 751 was ultimately accepted by the concerned authority. The plaintiff firm did not inspect the coupe and submitted the tender accepting the particulars of the number and volume in the tender notice as correct. It was however found on the extraction of the 1269 standing trees that the total volume was 21948 cubic feet as against the 44500 cubic feet mentioned in the tender notice as the estimated volume from the coupe area. It was found on facts established in evidence that the estimate given in the notice was only an anticipative one and was not a term of the contract and could not therefore be regarded as a warranty. The court answered the contention thus in paragraph 10 of its judgment:-"in such cases if the quantity is named with the qualifications of about or more or less or words of like import and the contract applies to a specific lot the naming of the quantity is not regarded as in the nature of a warranty but only an estimate of the probable amount in reference to which good faith is all that is required of the party making it:- vide Harnarain Ramchandra v. Firm Radhakisan Narayandas A. I. R. 1949 Nag 178 178"lastly we may refer to the decision in Hurnarains case which has been relied upon by not the courts below. In that case the plaintiff sold to the firm Radhakisan Narayandas bidi leaves which were stocked in his godowns at Mauzas Umaria and Baghraji for a sum of Rs. 1500/and the purchasers had paid Rs. 100/as part of the price on the same day. In that case the plaintiff sold to the firm Radhakisan Narayandas bidi leaves which were stocked in his godowns at Mauzas Umaria and Baghraji for a sum of Rs. 1500/and the purchasers had paid Rs. 100/as part of the price on the same day. An agreement was executed on 5th February 1937 which read as fallows :-"your bidi leaves which are stored in five kothas (rooms) at mauza Umaria (and which number about 2 35 0 two lacs and thirtyfive thousand are contained in 850 eight hundred and fifty bags. Out of this about 20 (twenty) thousand leaves and stored at Mauza Baghraji. All these leaves excepting bardana (bags) have been purchased in while lot from you for Rs. 1500/fifteen hundred rupees. On account of earnest money thereof you have been given a cheque for Rs. 100/one hundred rupees on the Allahabad Bank. Remaining leaves in 20 twenty days (we) will remove the entire goods (We) will pay the remaining amount". THE courts below found the stock in the two places was fairly below the quantity mentioned in the contract. The High Court came to the conclusion that the defendants had contracted to purchase the specific goods and could avoid the contract if there was a breach of condition of sec. 37 of the Act. Relying on the observations of Griffith C. J. in Goldsbrouch Mort and Co. Ltd. (supra) the court came to the conclusion that the price was fixed in lump sum and the ultimate quantity must have played an important part in the price offered by the purchaser in the stock stored in the godown of the sellers which had not been inspected by the purchasers. Referring to sec. 37 (1) of Act it held that the buyer was entitled to reject the goods but if the buyer accepts the goods so delivered he must pay for them at the contractual rate. It was on the said facts and in the said circumstances that the court cams to the conclusion that a breach of warranty in the matter of quantity had clearly taken place and dismissed he appeal. ( 16 ) FROM the above discussion it becomes obvious that whether a particular term is a warranty or not must be decided on the facts of each case. ( 16 ) FROM the above discussion it becomes obvious that whether a particular term is a warranty or not must be decided on the facts of each case. The facts of the present case reveal that before the bidders were invited to make their offers certain terms contained in a printed leaflet Ex. 47 were read over to the bidders and term Nm 3 extracted above informed the bidders that the quantity in each lot as indicated by the vendors may be accepted as a substantially true estimate and ballots may be submitted on the basis thereof. As pointed out earlier in lot No. 9 quantity mentioned was 567 standard boras while in lot No. 10 the quantity mentioned was 886 boras. The bidders were required to make a lumpsum offer for each lot and accordingly the ballots were submitted by the bidders. It transpires from the ballot note Ex. 26 of the highest bidder of lot No. 9 that he made certain calculations before making the offer on the basis of the number of boras in lot No. 9. After working out a figure on that basis he made his offer which came to be accepted by the auctioneer acting as the agent of the owners. The question then is whether term No. 3 of Ex. 47 can be said to be a warranty as held by the two courts below? Is it not the buyers say that I offer to purchase that heap of coal which you say is approximately so many boras for rupees so many? Was he not justified in taking the estimate as substantially true on the language of term No. 3 of Ex. 47? Can it be said that while working the amount to be offered for the purchase of that heap he was not influenced by the estimate of quantity as disclosed by the seller or his agent? I have no doubt in my mind that before making the bid or offer the buyer must have calculated the price on the basis of the sellers estimate accepting it as substantially true as the seller had personal knowledge about the quantity of charcoal in both the heaps. I have no doubt in my mind that before making the bid or offer the buyer must have calculated the price on the basis of the sellers estimate accepting it as substantially true as the seller had personal knowledge about the quantity of charcoal in both the heaps. If it is subsequently found that the estimate was wholly misleading would it be open to the seller to bind the buyer to the full price offered by him the fact that the quantity of charcoal actually sold was far less than what was represented notwithstanding ? True it indeed is that both the heaps were displayed at the site and were in full view of the bidders who must have examined them before they made their offers but at the same time it can hardly be overlooked that the bidders were given to understand that the sellers estimate of the quantity was substantially true. As the bids were made on this representation as to quantity it must have influenced the bidders in making their offers The price being a lump sum for each heap the observations of Griffith C. J. in Goldsbrough Mort and Co. Ltd. (supra) would apply and the case would be covered by the second test evolved by Bradley J. in Daniels case (supra ). I therefore hold that the said representation amounts to a warranty. ( 17 ) MR. Zaveri next submitted that the representation as to the estimated quantity of the boras was made in good faith on the basis of the charcoal brought to the depot in boras from the different parts of the jungles for sale. In this connection he invited my attention to the evidence of the depot clerk Chandrasing Bachubhai Ex. 67 who has stated as under:-"the commodity is brought from the forest in a cart or truck to the depot in big boras. Some boras are half; some are full. All boras are equal in size". FROM this statement found in the evidence of this witness it was stated by Mr. Zaveri that when the estimate regarding the total number of boras for each lot was given it was on the basis of the boras received from the jungles some of which were full and others half full. All boras are equal in size". FROM this statement found in the evidence of this witness it was stated by Mr. Zaveri that when the estimate regarding the total number of boras for each lot was given it was on the basis of the boras received from the jungles some of which were full and others half full. In this connection he also invited my attention to the deposition of the Range Forest Officer who too has stated that the boras brought from the jungles are not always full. He states that in respect of lot No. 9 184 boras were brought from Chhapri 189 boras were brought from Handi and 194 boras were brought from Baroda making a total of 567 boras. In respect of lot No. 10 525 boras were brought from Chhapri 90 boras were brought from Handi and 391 boras were brought from Baroda making a total of 886 boras. What was sought to be emphasised by Mr. Zaveri from this evidence was that the boras which were brought from different areas to Piplod depot were mentioned at the lime when the auction terms were read out to the bidders and the estimate thus given was a faithful estimate. If the sellers knew that the boras which were brought from different parts to Piplod depot were more often than not half filled they ought to have taken care while giving the quantity of the heaps in boras to mention that the estimate was based on boras brought from jungles which are often half empty. If the seller gives an estimate on the basis of half filled boras the buyer who acts on such representation or assurance cannot be made to pay the full amount when the quantity delivered is almost 30 to 35 per cent less than that assured at the time of auction sale. Cl. (3) of the printed terms Ex. 47 clearly conveys that the estimate may be taken as substantially true by the bidders while offering their bids. At that time the bidders were not informed that the estimate was on the basis of the boras received from jungles which were only half filled i. e. the bidders were not informed that the quantity may be almost half the quantity mentioned by the seller. At that time the bidders were not informed that the estimate was on the basis of the boras received from jungles which were only half filled i. e. the bidders were not informed that the quantity may be almost half the quantity mentioned by the seller. in these circumstances it cannot be said that the estimate was a faithful estimate because the vendor knew while giving the estimate that half Empty boras were being received from the jungles while the purchasers who had no special Acknowledge acted on the estimate taking it to be substantially true. In the instant case the deficiency is to the extent of almost 35% which clearly exceeds the reasonable latitude on the principle of de minimis. . . . . . . . . . . . . . . . ( 18 ) THESE were all the contentions which were urged before me Mr. Zaveri in this Second Appeal. As I do not find any merit in the contentions the Second Appeal fails and is dismissed with costs. Appeal dismissed. .