Murray Coutts Trotter, C.J.
1. This case is really governed by the decision of the House of Lords in British and Beningtons, Ltd. v. N.W. Cachar Tea Co., Ltd., and Ors. (1923) AC 48. As I understand that case, it lays down that a seller is not to he defeated merely by its being shown that alter repudiation by the buyer he had. not the goods to implement the contract actually in his physical possession. He can show that he could supply the goods contracted for either from the open market or from any other source and he would be entitled to maintain a suit for damages for wrongful repudiation.
2. In this case the contract was that the buyer should take the goods between the 20th and 30th of April, 1919., He did not do so and he set up a false defence that he sent two men to take delivery within the contract period. Those two men were called and gave evidence and the learned Judges refused to believe them. No Judge sitting as a jury would have believed them because the seller wrote on 28th April, 1919, reminding the buyer that the date of effluxion of the contract was drawing near and the buyer (plaintiff) did not answer that until as late as 6th May, 1919, when he set up this lying story about the two men having gone for the rice and being sent empty away. Now a point has been taken in this Court by Mr. Patanjali Sastri which is certainly ingenious, and it is this, that on the evidence before the Court which we have in the form of depositions it was never proved by the seller that the goods he had were goods which corresponded to the description of the goods to be sold, it: being common knowledge of course that there are different brands and different qualities of rice, and indeed different qualities were mentioned at the trial. Two witnesses were asked whether they knew what sort of rice it was that the defendant proved to the learned Judge that he had at Ellore, and they spoke of some rice in somebody's godown and of some more that he could have got delivery of against cash from the Bank. Of course the people who were asked those questions repliedthere is no doubt that the vakil knew that they would reply--that they did not know. But unfortunately there is not a trace of that suggestion as to the quality not being right having been put to the defendant himself, the seller, who knew all about it. We are not. to forget that the buyer's case at the trial was that he was entitled to have damages because he had asked for delivery and had not got it. In my opinion it would be quite wrong to act on a suggestion of this kind when it is clear that the defendant was never given a fair chance of explaining it at the trial.
3. The buyer's appeal (A.S. No 195 of 1923) will there-lore be dismissed with costs.
4. With regard to the seller's appeal (A.S. No 141 of 1923) he says first that, having got a deposit and there having been failure by the buyer to take delivery, he ought to keep the deposit. His own original suggestion was that he should return the. deposit less whatever he is entitled to by way of damages. I can content myself with saying that it is never the practice in mercantile contracts, to hold that whatever be the damage suffered or not suffered the seller is to be entitled to keep the deposit. Me is only entitled to such damages as the learned Judge sitting as a jury has suggested, namely, 1 2 annas a bag, and I do not think we ought to interfere in a matter which is eminently one for the Trial Judge.
5. With regard to interest, it sounds plausible to say as Mr. Varadachari has argued, that a person who is in default cannot possibly be heard to say that he is entitled to claim interest from the other side. The answer to it is the one that the learned Judge has given, namely, that the seller should have made calculation of the damage he has actually suffered and tendered the return of the balance to the buyer. No doubt it puts a man in a difficulty and if he goes ultimately into a Court of Law he might have to justify his fixing the figure as best he could. But I take it that almost any tribunal would have an indulgent eye on the arithmetic of a man who adopted that straightforward course. In the result the seller had the buyer's money in his hands for a good many years to the amount of the excess between what the Judge has allowed by way of damages and the amount of the deposit which was Rs. 4,001. 1 think here too the judgment of the learned Judge must be upheld, and this appeal also will be dismissed with costs.
6. I agree.