PREM SINGH HYANKI Vs. DEB SINGH BISHT

JUDGEMENT

(1.) This is an appeal from a judgment of the High Court of Judicature at Allahabad setting aside a judgment of the Subordinate Judge of Almora and dismissing with costs the suit of the appellants for the balance of the price of wool sold and delivered.

(2.) On 14 April 1931 a contract was entered into between appellant 1 and one Deb Singh, of part 1 and the respondents of part 2. The terms of the contract were as follows : "We (1) Prem Singh Deb Singh, residents of patti Chaundas, have kept 1085 maunds, 25 seers and 4 chhatacks of new wool which has been weighed, at Tanakpur at the shop of Ram Lal Munna Lal commission agents, 372 maunds and 12 chhatacks, 995? 'phanchas' (bundles) of wool of last year at Tanakpur, at the commission agency shop and 717 maunds, 9 seers and 1 chhatack, 1857 bundles at Haldwani at the shop of Hardeo Das Mohar Singh. We (1) Prem Singh, Deb Singh have sold the entire wool mentioned above, i. e., 1085 maunds, 25 seers and 4 chhatacks of new wool and 1089 maunds, 13 seers and 9 chhatacks of wool of the last year to you, (2) Thakur Deb Singh, Dan Singh Bisht the new wool at the rate of Rs. 21 per maund and the wool of the last year at the rate of Rs. 19 per maund. Prem Singh Deb Singh (No. 1) shall have to give the entire wool aforesaid in possession of Thakur Deb Singh Dan Singh (No. 2) within five days. We, Prem Singh Deb Singh (No. 1), have for making payments to Ram Lal Munna Lal, commission agents, and for expenses received half pieces of currency notes of Rs. 30,000 at Tanakpur, on 14 April 1931 from you Thakur Deb Singh Dan Singh Bisht, by way of earnest money in respect of the wool aforesaid and we, Prem Singh Deb Singh (No. 1) have given separate receipt in respect of the said amount to Thakur Deb Singh Dan Singh Bisht (No. 2). If on account of any act on the part of Prem Singh Deb Singh (No. 1) the wool aforesaid is not transferred to the possession of Deb Singh Dan Singh (No. 2) within the time then Thakur Deb Singh, Dan Singh Bisht (No. 2) shall have the right to take damages from us, Prem Singh Deb Singh (No. 1), at the rate of Rs. 5 per maund from Prem Singh Deb Singh (No. 1) and when the entire wool is given in possession of party No. 2, they (party No. 2) should remit the entire remaining amount in full payment at the rate which has been agreed upon, under insured cover to Prem Singh Deb Singh (No. 1) at Chaundas, post office Khela. The party No. 1 shall take damages from party No. 2, in case they (party No. 2) do not take the wool), at the rate of Rs. 5 per maund, in the same way as they (party No. 2) would take damages from party No. 1, if they (party No. 1) do not give the wool. The wool which belongs to us is not moist, mixed with earth and is not worm eaten. If it is found to be rotten in any way, then party No. 2 shall have every right to take out of it after making choice. Dated 14 April 1931. (Signed) PREM SING. (Signed) DEB SINGH HYANKI."

(3.) Thakur Deb Singh, party of part 1, died in the year 1931 and was thereafter represented, in the matters out of which this appeal arises, by his widow, appellant 2.