MADHO DAS Vs. GOKUL DAS

JUDGEMENT

(1.) THE plaintiff instituted a suit for the recovery of a sum of money which, he stated, he had paid in excess to the defendants. THE facts, as found by the Courts below, are that the plaintiff agreed to purchase 90 balss of cloth from the defendant; that he broke his contract to the extent that he refused to take delivery of 11 bales of cloth. He took delivery of 9 bales and refused to take delivery of the remainder. It is further found that the plaintiff paid Rs. 1,000 on one occasion, Rs. 1,000 on a second occasion before he received any sloth, and that he subsequently paid Rs. 4,950, Rs. 4,675 and Rs. 1,236. He thus paid Rs. 12,861 in all and took delivery of 9 bales of sloth which ware prised at IK 11,301- 15.0. Thin left a balance of Rs. 1,556-1-0 which the plaintiff has aued to recover from the defendants. THE lower Courts have dismissed his suit holding that he bad agreed to pay Rs. 2,000 earnest-money and that he had actually paid Rs. 2,000 earnest money and that, inasmuch as he bad broken the contract, he forfeited his earnest-money and was, therefore, not entitled to recover anything. THE learned Counsel for the plaintiff, who appeals before up, has scrupulously confined himself to the points of law which are open to him in second appeal. Ha does not contest, in addition, the findings of the Courts below in every particular. He admits the facts as we have stated them with the exception that he denies that Rs. 2,000 were paid as earnest money. He says that Rs. 1,000 only were paid as earnest money. Thus he has argued before un only in favour of a relief of Rs. 556-1 0 with interest. THE law in respect of what is and what is not earnest-money, in a contract of such a nature as the present, and the liability to forfeiture of such earnest-money in respect of a failure to perform the contract, is laid down in the lading ease if Bowe V/s. Smith (1884) 27 Ch. D. 89 : 53 L. J. Ch. 1065 : 50 L. T. 5738 32 W. Rule 802 : 48 J. P. 773. THEre the decision as to what was and what was not earnest-money, turns on the construction of the document which contained the contract, and it was stated by Bowen, L. J., at page 97, that in each case it is a question of construction. When, as is the ease here, there is no written contract, the point as to determination of what is and what is not earnest-money, must be decided according to the evidence on the record and become a point of fact. This being the case, the finding of the lower Appellate Court, which we can only interpret as a finding that Rs. 2,000 were paid as earnest-money, would conclude the matter. It has, however, been argued with skill by the learned Counsel for the appellant that, in view of the defendants own written statement, it was not open to the defendants to suggest that more than Rs. 1,000 had bean paid as earnest-money, and his plea at first sight finds support from the wording of the second paragraph of the written statement. THE wording of this paragraph is not, however, such as to exclude the legibility of the plea that Rs. 2,000 had been paid as earnest-money. Reading paragraphs 1 and 2 together, we understand the plea to be that Rs. 1,000 were paid as earnest-money, and it is perfectly clear from the proceedings that as soon as the suit came 11 "trial, the defendants urged that Rs. 2,000 had been paid as earnest-money and based practically the whole of their defence upon that plea, in these circumstances, we consider that it was open to the Courts below to decide as they have decided, that Rs. 2,000 were paid as earnest-money and we cannot interfere with that decision as it is a decision of fact. We, therefore, dismiss this appeal with costs.