Henry Richards, C.J. and Pramada Charan Banerji, J.
1. This appeal arises out of a suit, in which the plaintiffs claimed money from the defendants as payable to them in connection with the sale of the contents of a grain pit. The plaintiffs in their plaint alleged that they were commission agents and were employed by the defendants to purchase the grain pit, that they did purchase it on behalf of the defendants, but that subsequently, the defendants being unwilling or unable to pay the balance of the purchase money or to give security, the grain pit was re-sold at a loss, and their claim is made up of their commission and the difference between the price at which the pit was purchased and re-sold. The defence was that the transaction was a gambling transaction, and further that the pit was re-sold without the authority of the defendants. The court of first instance granted a decree to the plaintiffs holding that the transaction was not in the nature of an agreement by way of wager, within Section 30 of the Indian Contract Act. The lower appellate court held that the transaction was a gambling transaction and that the money could not be recovered. Hence the present appeal.
2. In our opinion the actual facts have been ascertained by the court of first instance and the lower appellate court has not in any way dissented from such findings of facts. No doubt it has drawn certain legal inferences from those facts. The facts are as follows. The grain pit in question with its contents did in fact exist. It originally was purchased by the plaintiff. It was sold to various persons, and eventually was purchased by the plaintiff as commission agents on behalf of the defendants. It is contended on behalf of the respondents that all these sales were mere paper transactions and that the plaintiffs themselves were all along the owners of the grain pit. This clearly is not so; and is not the finding of either of the courts below. The defendants by their written statement admitted that the plaintiffs were commission agents. They also admitted that the grain pit in question was purchased on their behalf by the plaintiffs as their commission agents. We have looked into the evidence of the principal defendant, Parmanand, and we find that what the learned Subordinate Judge says at page 11 about the transaction is quite justified. It may be assumed for the purposes of the present case that there was very small probability of the defendants ever clearing the grain pit and that the probabilities were that they would resell the contents of the grain pit through the plaintiffs as commission agents, getting the benefit of any rise in prices or suffering any fall. It may also be assumed that the plaintiffs were aware that this was the intention of the defendants. Parmanand in his evidence admits that there were a number of other transactions of a similar nature and that upon one occasion he actually took delivery of grain and cleared the pit. The question that we have to decide is whether under these circumstances the plaintiffs are prevented by the provisions of Section 30 A of the Indian Contract Act from recovering the moneys which they had to pay to the vendor of the grain pit. In our opinion they are not. On the facts stated above the case is very similar to the case of Forget v. Ostigny (1895) A. O. 318 and also to the case of Jagat Narain v. Sri Kishan Das (1910) I. L. R. 39 All. 319. On the principle of these cases it cannot be said that the claim of the plaintiffs is based on an ' agreement by way of wager.'
3. It is contended that the grain pit was sold unlawfully and without the authority of the defendants. We have looked into the contract, and we find that there was an express provision that, if there was any question as to the solvency of the purchaser and if he failed to pay the balance of the purchase money or to give security, the contents of the pit might be resold. The learned Subordinate Judge; says: ' Parmanand admits that the plaintiffs made demands and that he had no money to pay, and was offering to make itminan. His partner Jwala Prasad made promises of payment but did not or could not keep them. ' Under these circumstances and having regard to the terms of the contract, it is quite clear that the contents of the grain pit were liable to be resold and accordingly the defence on this ground cannot be sustained.
4. The result is that we allow the appeal, set aside the decree of the lower appellate court, and restore the decree of the court of first instance with costs.