B.B. Ghose, J.
1. In this case the plaintiff is the appellant. The appeal arises out of a suit for the refund of the money deposited by the plaintiff with the defendants for the purpose of purchasing bricks which the defendants undertook to make for the plaintiff and to sell him at a certain rate. The agreement was that the plaintiff was to take delivery of the bricks at the brick-field of the defendants. It was stipulated that the bricks would be supplied within a certain date. The plaintiff complained in his plaint that the defendants had failed to perform their part of the contract and asked for the refund of the money deposited and for interest. The defendants pleaded that it was the plaintiff who was guilty of the breach of the contract as they had actually prepared the bricks and were always ready to give delivery to the plaintiff. They also pleaded that they called upon the plaintiff to accept the delivery but that the plaintiff bailed to do so, because the price of bricks had gone down. The defendants stated that they had suffered loss on account of the plaintiff's breach of contract for which they were entitled to get damages in excess of what the plaintiff claimed to the extent of Rs. 585 after setting off the claim of the plaintiff to the extent of Rs. 761. The trial Court held that the plaintiff was entitled to get his money with interest to the extent of Es 761 and the defendants' claim by way of set off was dismissed with costs. The defendants' appealed against that decision and the learned Judge accepted the story of the defendants and held that it was the plaintiff who was guilty of breach of contract and not the defendants. The learned Judge also held that neither party produced any independent testimony as to the fluctuation of the price of the bricks and, therefore, lie was unable to find that the fall in the price of bricks was the cause of the plaintiff's backing out of the contract. He gave certain other reasons for which the plaintiff might have committed the breach. In the end he dismissed the plaintiff's suit on the finding that it was the plaintiff who broke the contract and he observed that as the suit was one for damages for breach of contract by the defendants, the suit failed.
2. From this judgment the plaintiff appeals and on his behalf the learned advocate has urged that the learned Judge below was wrong in holding that the suit was for damages for breach of contract. His argument is that the suit was not for damages for breach of contract but for the recovery of the deposit or the advance made by the plaintiff to the defendants for the performance of the contract. Although it has been found that the plaintiff broke the contract, the defendants were only entitled to damages under Section 73, Contract Act, and as the learned Judge has found that there was no evidence to assess the actual damages suffered by the defendants, the plaintiff a suit for the refund of money ought not to have been dismissed. The question then resolves itself into this: whether a plaintiff, who has entered into a contract for the purchase of goods and has made a deposit by way of earnest money, and then refuses to purchase is entitled to recover the earnest money. There have been several cases in various High Courts on this question and apparently the decisions have been to the effect that the plaintiff is not so entitled this has been held following the principle laid down in the cases relating to specific performance of contract both in England as well as in this country. All these cases have been discussed and followed in Mangobinda v. Baisogmaff A.I.R. 1922 Cal. 164 where the learned Judges held that the plaintiff under such circumstances must forfeit the deposit, although the defendant has not been able to establish that he has suffered any loss. With this decision we agree. The appeal must, therefore, be dismissed with costs.
3. I agree.