1. This is an appeal from the decree of the learned District Judge of Madura on a suit brought for the recovery of an advance paid by the plaintiff to the defendants in respect of a yarn contract in August 1918. The plaintiffs contracted to purchase yarn from the defendants 25 bales which was to be delivered and taken up on intimation by the defendants that these bales were ready for delivery. As to one bale there is no question. The defendants sent a letter of intimation under the contract and the plaintiffs accepted the bale and paid for it. The question has ranged round the matter of 4 bales. The defendants contended that they gave intimation of the arrival and readiness for delivery of 4 bales to the plaintiffs, whereas the plaintiffs denied that any such intimation had ever been received by them. The first Court found that the intimation had been received but was invalid. The learned District Judge found that the intimation was perfectly in order and that the plaintiffs were in default in not having taken up the 4 bales in pursuance of the intimation which the District Judge held had been duly received.
2. It is argued in appeal that defendant could not keep the 4 bales and their price as we'll, but the real question argued was on the respondent's memo of objections to the effect that the plaintiffs' suit should under the circumstances be dismissed.
3. Now the first question in this appeal is whether I can treat the refusal to take these 4 bales as going to the root of the contract, that is to say, was the defendant entitled to consider the contract as at an end after the plaintiffs had refused to take delivery of these 4 bales or must he go on tendering delivery of the 4 bales or of any other number of bales up to 24 under the contract? Now the plaintiffs came into Court with an allegation of breach on the part of the defendants, stating that
The defendant has not either within a reasonable time of two months or subsequent thereto up to this date given any intimation to the plaintiffs as to the arrival of bales for the contract.
According to the contract he claims the entire sum, namely Rs. 3,312, the balance, after deducting Rs. 138 due for one bale out of the advance of Rs. 3,450 paid by the plaintiffs, with interest on the advance paid to the defendants in pursuance of the contract, Ex. A. Now it seems to me that the plaint treats the contract as absolutely at an end. It does not complain that the defendants did not continue to tender. The default and the only default complied of is that no intimation of the arrival of the remaining bales has up to this date been given to the plaintiffs and I think therefore it is necessary to decide this point and the reason why I say that, will appear in a moment that the plaintiffs regarded the contract as at an end because the defendant did not give any intimation of the arrival of the bales.
4. Now it is rather curious that there seems to be very little direct authority as to whether under the circumstances of this sort the advance or deposit can be recovered either in whole or in part. Admittedly the Contract Act says nothing about it and therefore we are driven to other sources of authority. Mr. K.V. Krishnaswami Aiyar has found an authority which I think I must follow. In Fitt v. Cassanet (1842) 4 Man & G 899, Tindal, C.J., said:
It is difficult to see how an action for money had and received could be maintained by the plaintiff unless they were in a situation to recover upon the original contract.
5. Now it is obvioue from the findings of the learned District Judge which, we all agree is binding as a finding of fact, that the breach is on the plaintiffs in this case so that they are not in a position to recover upon the original contract. Mr. Justice Maule in the same case says:
In order to entitle the plaintiffs to maintain any action against the defendant it is necessary that he should be in the wrong. It is incumbent on the plaintiffs to show that.
6. There is also authority in this country in Bishan Chand v. Radha Kishan Das ILR (1897) A. 489 which does not seem to have been questioned up to the present time where the learned Judges held that the plaintiff having broken his contract had no right to the return of the deposit. And in quoting Howe v. Smith (1884) L.R. 27 Ch.D.89 the Judge says
that a deposit, although to be taken as part payment if the contract was completed, was also a guarantee for the performance of the contract and that the plaintiff having failed to perform the contract within a reasonable time had no right to a return of the deposit.
7. It therefore seems to me that in view of the two authorities and none has been quoted contraI must hold that on the findings of the learned District Judge the plaintiffs' suit must be dismissed. The learned District Judge allowed the plaintiffs a return of so much of the amount of the advance as remains over after deducting the value of the 4 bales at the contract price. But holding as I do that this is wrong in law I must reverse his decree and dismiss the plaintiffs' suit with costs throughout. The second appeal is therefore dismissed and the memorandum of objections allowed.