Viscount Finlay :- This action was brought in the Chief Court of Lower Burma by Maung Ba Dun and his wife, Ma Thet, against the Moola Rice Mill Company to recover a balance said to be due in respect of the supply of paddy by the plaintiffs to the Company under an agreement between them. The plaintiffs reside at Kyauktan and the Company carry on business at Rangoon. The case for the plaintiffs is that it was in May, 1911, arranged between them and the Company that they should supply to the Company in Rangoon paddy to be purchased by them as instructed by the Company, and that the Company should pay for the paddy at the current market rate prevailing in Rangoon at the date of delivery plus a commission of 2 per cent.; but this last term as to commission was in contest between the parties, and is the subject of the first question on this appeal. The Company were to make advances to the plaintiffs to put them in funds to pay for the paddy as purchased. Paddy was purchased and supplied to the Company under the agreement made in May. Disputes arose as to the amount due, and it was alleged by the plaintiffs that a settlement was arrived at early in July 1911, one of the terms of which was that the plaintiffs should have an option to fix on any day during the period of the next three months the price of that day as the price to be paid for paddy which should have been delivered during that period. This alleged variation of the terms was contested by the Company, and is the second of the points to be decided on this appeal. Another question on which the parties are at issue relates to the following items in the plaintiffs' claim for paddy supplied by them :- 25th August ....... 2,949 baskets. 2nd September ...... 8,099 " 3rd September ....... 7,433 " 4th to 26th September ...... 33,623 " The Company had in its employment one Maung Po Su as head broker, who was remunerated by salary and commission. Po Su's wife, Ma May, was a sister of Maung Ba Dun, the 1st plaintiff. 2,949 baskets. 2nd September ...... 8,099 " 3rd September ....... 7,433 " 4th to 26th September ...... 33,623 " The Company had in its employment one Maung Po Su as head broker, who was remunerated by salary and commission. Po Su's wife, Ma May, was a sister of Maung Ba Dun, the 1st plaintiff. For the convenience of transaction of business under the agreement between the plaintiffs and the Company, Maung Po Su was by letters of the 5th and 6th June, 1911, constituted the plaintiffs' agent to see to the delivery of the paddy to the Company on its arrival at Rangoon, and to receive any money due from the Company for the plaintiffs. The Company alleged that the paddy to which these items related had been supplied, not by the plaintiffs, but by Po Su and his wife, Ma May. The Chief Court, however, decided that this paddy had been supplied by the plaintiffs, and there is no appeal against this decision; but a question arises with reference to payments alleged to have been made by the Company to Po Su in respect of this paddy. The Company claim that they are entitled to credit for these payments as against the plaintiffs' claim for the price. This is the 3rd question falling to be decided on this appeal. The case was tried by Robinson, J. who defined the main questions as being- (a) What were the terms on which the paddy was supplied to the Company according to the original agreement and according to the variation alleged by the plaintiffs? and (b) Was the paddy comprised in the four items in August and September, 1911 (above mentioned in this judgment), supplied to the Company by the plaintiffs, and, if so, could the defendants claim credit for payments made to Po Su in respect thereof? Robinson, J. held that by one of the terms of the agreement of May, 1911, the plaintiffs were entitled to a commission of 2 per cent. but on this point he was reversed by the Court of Appeal. Robinson, J. held that by one of the terms of the agreement of May, 1911, the plaintiffs were entitled to a commission of 2 per cent. but on this point he was reversed by the Court of Appeal. Robinson, J., further held that under the subsequent variation made in July, 1911, the plaintiffs were entitled to an option giving them right to fix the price for all paddy supplied on or after the 7th July up to the 13th September, and that by the exercise of this option the price had been fixed at Rs. 195 per hundred baskets for all such paddy. His finding on this point was varied by the Appeal Court, in which it was held that the option applied only to the paddy delivered between the 4th and 9th July, 1911. With regard to the paddy delivered in August and September, Robinson, J., held that the plaintiffs had not established that they were the vendors, and further held that if they were the vendors they would have to give credit for any sums paid in respect thereof to Po Su by the Company. The Appeal Court held that the plaintiffs were the vendors, but agreed with Robinson, J., in holding that credit must be given for any sums paid by the Company to Po Su in respect of this paddy. This appeal has been brought by the plaintiffs, and there is no cross-appeal. The questions that now arise for decision are three :- I. Are the plaintiffs entitled to 2 per cent. commission? II. To what paddy is the rate of Rs. 195 per hundred baskets fixed under the option applicable. III. Is the Company entitled to credit for payments to Po Su in respect of the paddy delivered from the 25th August to the 26th September, 1911? [After dealing with questions I and II which are pure questions of fact, the judgment proceeded :-] III. The only remaining question is whether the Company, as against the price of the paddy supplied by Ma May in August and September, are entitled to credit for the payments which they made to Po Su, their head broker. It is admitted that as regards all other paddy supplied by Ma May during the period to which the suit relates, it was supplied by her as agent for or partner with the plaintiffs. It is admitted that as regards all other paddy supplied by Ma May during the period to which the suit relates, it was supplied by her as agent for or partner with the plaintiffs. The Company, however, resisted the plaintiffs' claim in respect of these lots of paddy on the ground that they were sent to them by Ma May, not on account of the plaintiffs but on account of herself and her husband, Po Su. The Trial Judge held that the plaintiffs had failed to establish that the paddy was supplied on their account. The Appeal Court, on the other hand, held that the plaintiffs had established that they were the vendors of this paddy. But both the Trial Judge and the Appeal Court held that, even if the paddy did belong to the plaintiff, the Company were entitled to be given credit for the sums paid in respect of this paddy to Po Su. The point is rather assumed than argued in the judgments, and is not without difficulty. The Counsel for the appellant in this ex parte appeal rested his argument entirely on Section 108 of the Indian Contract Act. This has, in their Lordships' judgment, no application, as Po Su never had possession of these goods with the consent of the owners and plaintiffs. The extent of his agency was that he should see to the delivery of goods sold by the plaintiffs to the Company on their arrival at Rangoon, and should receive the price for the plaintiffs. Had Po Su been an agent for sale, it would have been a case where Section 108 might have applied. But the title of the defendants to the paddy in no way flowed from Po Su. That depends on the original contract with the plaintiffs. It may be that the objection might have been raised to the allowance of these payments as against the plaintiffs, on the ground that they were made to Po Su on his own account as alleged principal, and therefore could not be treated as payments to the plaintiffs. This point is not adverted to in either of the judgments in the Courts below. Its decision would involve questions of importance and difficulty the solution of which might to some extent depend upon consideration of facts. This point is not adverted to in either of the judgments in the Courts below. Its decision would involve questions of importance and difficulty the solution of which might to some extent depend upon consideration of facts. Under these circumstances, their Lordships are not prepared to overrule the conclusion arrived at in both the Courts below that these payments should be allowed in account as against the plaintiffs. Their Lordships will humbly advise His Majesty that the order of the Chief Court, Appellate Side, of the 20th August, 1915, should be varied in paragraph 2 by striking out the words "between the 5th and the 9th of July, 1911," and substituting for them the following: "between the 5th July and the 12th September, 1911," and in paragraph 4 by striking out the word "not" and inserting the words "at the rate of 2 per cent." after the word "commission." The appellants should have the costs of this appeal. There should be no costs of the appeal to the Appellate Side of the Chief Court. Order varied.