Judgment :- 1. The appellants (The Malabar Products & Co.) and the respondent Krishna Iyer are merchants in Mattancherry, a town situated in the vicinity of the Cochin Harbour. The respondent is permanently residing at Trichur, a town 50 miles away, but has a local agent, Achutha Bhat. The offices of the parties are located within a furlong of each other with facility for easy and immediate communication. There is an Oil Merchants' Association at the place but both parties not having been its members at the relevant time, the rules of that body do not fall to be applied. 2. On the 28th June 1946, at about 4 p.m. the plaintiff agreed to sell and the defendants agreed to purchase 25 candies of 'clean' cocoanut oil at Rs. 560/- per candy. The transaction was put through by broker Viswam. There is no document to evidence the terms of the contract. 3. The plaintiff is not a stockist nor has he a godown. Adam Hajee Peer Mohammed Issac and Oosman Abdul Rahiman were under contracts to supply oil to him wherefrom the above 25 candies could be delivered. On 29th June 1946 the appellants wrote to the respondent as under: "Dear Sir, With reference to your sale to us thro' Broker Viswam, 25 candies ready clean C.N. oil on 28.6.46 at Rs. 560/- per candy and asked us to take delivery today from M/s. Adam Haji Peer Mohammed Issac. Upon your order through your agent we have sent our empty tins to their office and on request for the delivery they replied that their contract is to delivery on the 3rd July 1946 and not before. As we have bought this oil from you for our urgent need of shipment, and upon your failure of making arrangement of delivery, we are forced to cancel the same by this letter which please note. Yours faithfully, Sd/- K.P. Apte, For The Malabar Products & Co." The respondent's reply was as follows: "Cochin, 1.7.1946. M/s. The Malabar Products & Co. Cochin. Dear Sirs, I am in receipt of your letter of the 29th inst. and am surprised to note contents. Contracts once entered into cannot be cancelled. As soon as the sale was effected on 28th inst. M/s. The Malabar Products & Co. Cochin. Dear Sirs, I am in receipt of your letter of the 29th inst. and am surprised to note contents. Contracts once entered into cannot be cancelled. As soon as the sale was effected on 28th inst. you were asked to take delivery of the same from M/s. Adam Hajee Per Mohamed or M/s. Oosman & Abdurahim Co., at your option and it is none of our mistake. I have instructed M/s. Oosman Abdulrahiman & Co. to give you delivery. If you fail to take delivery of the said 25 candies before 4 p.m. 2nd July the same will be sold on your account and risk which please note. Yours faithfully, Sd/ For T.V. Krishna Iyer". On 3rd July 1946 the respondent wrote the following letter to the appellant enclosing a debit note for Rs. 250: "Dear Sirs, With further reference to my letter dated 1.7.46, as you have failed to take delivery of the said 25 cdys., I have sold the same on your a/c. to Sait Aboo Talib Momed Sidik @ Rs. 550/- per cdy. through Brokers Oosman Hasan & K.S. Viswanath. I enclose herewith the debit note for Rs. 250/- (Two hundred and fifty) which amount kindly remit to me without delay. Yours faithfully, Sd/ For T.V. Krishna Iyer". The buyer was the agents of Adam Hajee Peer Mohammed Issac. The appellants repudiated the respondent's claim, returned the debit note and wrote back thus: "Cochin, 3.7.1946. Dear Sir, We have received your letter of today's date enclosing your claim bill for Rs. 250/- and note the contents with surprise. In reply we call your attention to our letter of 29th ultimo in this matter. Your action contrary to the contents referred in our above letter will not affect us in any way and we are not liable to you to your loss in sales of your goods and to accept your Bill and pay the amount to you. We, therefore, call upon you, your further action in this matter will put you liable for our loss and difficulties incurred to us. We, therefore, return your claim Bill here enclosed as we are nor liable to accept your Bill sent contrary to our letter of 29th ultimo which please note. We, therefore, call upon you, your further action in this matter will put you liable for our loss and difficulties incurred to us. We, therefore, return your claim Bill here enclosed as we are nor liable to accept your Bill sent contrary to our letter of 29th ultimo which please note. Yours faithfully, Sd/- K.P. Apte, For The Malabar Products & Co." The relevant facts have to be gathered from and the rights of the parties determined by these documents which are admitted. No attempt to clarify their contents was made at the trial which proceeded in their absence, they having been tendered as evidence in this Court by the appellants at a prior hearing of the second appeal, when both parties agreed that they may be accepted as additional evidence. They were not, however, marked as Exhibits here because the appellants had only copies of the two letters sent to the respondent, the originals whereof the respondent agreed to produce. There having been need for a remand of the case to the trial court, that court was directed to accept the said four letters in original as evidence which was done accordingly and the letters marked as Exts. II to V, regardless of the sequence of events. It would have been better and more convenient had they been marked in their chronological order. A remand of the case to the trial court was necessitated for the purpose of further cross-examining the plaintiff's witness Viswam (broker) with reference to his book which was marked in his re-examination in respect of which therefore the appellants had not, as this Court thought they should have had, an opportunity to cross examine. This Court also framed a new issue as to "whether the plaintiff could insist upon the defendants not going to one of the two merchants mentioned by him in paragraph 1 of the plaint before the expiry of 3 days or any other period", and remitted it to the trial court for a finding. The finding on this issue recorded by the Munsiff was to the effect that "the plaintiff could insist upon the defendants to take delivery after 3 or 4 days from the date of the contact. This issue is therefore found in favour of the plaintiff." This finding was accepted by the plaintiff-respondent though it was objected to by the appellants. 4. This issue is therefore found in favour of the plaintiff." This finding was accepted by the plaintiff-respondent though it was objected to by the appellants. 4. The pleadings and the oral evidence adduced at the trial are at variance with the facts emerging from the above correspondence, the details of which, it is unnecessary to advert to. The controversy that attracted the attention of both the courts below before the remand was whether the delivery of the commodity sold was to be 'ready' as contended by the appellants or "deferred" as alleged by the respondent. The Munsiff found that point in favour of the respondent as a term of the contract as was alleged in the plaint. The District Judge reached the same conclusion but based upon trade custom about which there was neither allegation nor proof. Both the courts below having found that the delivery was to be within 3 or 4 days after the date of the contract though for different reasons, they concurred in holding that the appellants were not justified in cancelling the contract on the 29th June. As a consequence the Munsiff found that the appellants should have paid for and taken delivery of the oil on 2nd July which they defaulted to do rendering themselves liable to pay the respondent the difference between the contract price and the market price as on that date, though that was not the basis of the claim made in the plaint which was grounded only on loss alleged to have been sustained at a resale on the 3rd of July on which date, according to the Munsiff the market price was equal to the sale price and the respondent would have sustained no loss. 5. Achutha Bhat swore in the box that the resale was on the 2nd of July and there was none on the 3rd. The Munsiff however took the view that the plaintiff had no right of resale under law or contract and therefore the date of resale was irrelevant and discrepancy between the pleading and proof was immaterial. According to him the plaintiff's right was to get damages for breach of contract from the defendants, they having defaulted to take delivery on the 2nd of July when the market price was less than the contract price by Rs. 10/- per candy which was the rate at which loss on resale was claimed as sustained. According to him the plaintiff's right was to get damages for breach of contract from the defendants, they having defaulted to take delivery on the 2nd of July when the market price was less than the contract price by Rs. 10/- per candy which was the rate at which loss on resale was claimed as sustained. Thus the amount of Rs. 250/- claimed by the plaintiff in the action could, the Munsiff thought, be and was, decreed. The District Judge in appeal confirmed this conclusion. 6. In the further cross-examination, broker Viswam admitted that the contract was for "ready" delivery. He, however, introduced a refinement that the appellants did not demand immediate delivery. In his book wherein are recorded all transactions in cocoanut oil in the course of his brokery, there is a column for noting the time of delivery. An examination of the various entries made therein reveals that the division of deliveries is by dichatomy, that is, delivery specifying time, i.e., "forward", and delivery without specifying time, i.e., "ready". The recording of the variety of delivery is stated to be necessary only when both parties are members of the Oil Merchants' Association and that accounts for the absence of such an entry regarding the transaction in question. The column however was not left blank as it is seen filled up by the word 'clean'. The broker in his examination stated that transactions in clean cocoanut oil are usually for ready delivery. Though the word 'clean' ordinarily denotes quality, it has in the context to be taken to refer to time meaning ready delivery as otherwise the word would be out of place in that column. 7. The Indian Sale of Goods Act was extended to this State by The Part B States (Laws) Act (Central Act, III of 1951) as from 1st April 1951. There was in the erstwhile State of Cochin, The Cochin Sale of Goods Act, XXV of 1112 amended by Act III of 1118, by which the present transaction is governed. The provisions in the Indian and Cochin Acts are similar and it would, therefore, be sufficient and convenient to refer to the sections of the Indian Act. The 35th Section of the Act provides that the seller of goods is not bound to deliver them until the buyer applies for delivery. Whether the buyer (appellants) in this case applied for delivery is not clear. The 35th Section of the Act provides that the seller of goods is not bound to deliver them until the buyer applies for delivery. Whether the buyer (appellants) in this case applied for delivery is not clear. They had an option of taking delivery from one of the two parties indicated by the seller. The appellants appear to have approached one of the said parties and demanded delivery which was not given as the date on which that party was due to delivery was the 3rd July, whereupon the appellants cancelled the contract. The question is whether they were right in having done so. If the option given to the buyer had been exercised and such exercise intimated to the seller, and had the seller issued an order for delivery which was dishonoured, it might be said that the seller broke the contract and the buyer might cancel it or treat it as cancelled. If a buyer or seller elects to exercise an option as to the mode of delivery it would have the same effect as if the opted mode was a term of the original contract. It was so held in Gath v. Leas (3 H. & C. 558). This decision was distinguished by Bramwell, L.J. in Borrowman v. Free (1878 (4) Q.B.D. 500) where the attempted exercise of the option was defective. 8. The appellants appear to take the stand that they elected to exercise their option and the result was to render the contract one for taking delivery from Adam Hajee Peer Mohammed Issac which therefore, their written statement said, was a term of the contract though no reference was made therein to their having had an option and its exercise by them. If the term of the original contract had been that the buyer should take delivery from Adam Hajee Peer Mohammad Isaac, or on account of the exercise of the buyer's option the same situation had arisen, the default of Adam to deliver on demand, might have amounted to a breach of contract by the seller as Adam in that event may be regarded as an agent of the seller. There is in this case no evidence as to there having been the exercise of an option by the buyer, its communication to the seller and the issue of an order for delivery. There is in this case no evidence as to there having been the exercise of an option by the buyer, its communication to the seller and the issue of an order for delivery. That may be the reason why the respondent replied denying responsibility for Adam's default to delivery. 9. Where the sellers had contracted to sell 140 cases of Australian skinned rabbits, Gaythorn brand, which the sellers deposited with a Cold Storage Company and on demand by the buyers for delivery of 25 cases thereout, a delivery order was issued and the Cold Storage Company on a misapprehension denied that they had that variety with them, which conduct was taken by the buyers to amount to a repudiation of the contract, who took action against the sellers on that basis, Singleton, L.J. said: "If an agent makes a mistake which can be corrected, and that mistake leads him to think that he has no such goods as those asked for, does his conduct show on behalf of the principal an intention not to be further bound by the Contract? That is a matter which must depend on the circumstances in each particular case. I do not think that it did in this case. I agree that there was a breach of contract in regard to the twenty-five cases which ought to have been delivered on March 14, 1952. There was no request for delivery of any more, and I am unable to see that the failure to delivery the twenty-five coupled with the warehouseman's statement: 'We have none', is sufficient to enable the buyers to say the sellers evinced an intention no longer to be bound by the contract". - Peter Dumenil v. James Ruddin,1953 A.E.L.R. 294 at 295. Jenkins, L.J. expressed himself thus: "No doubt, what the buyers believed, that is to say, the absence from the cold stores of any Australian skinned rabbits of the appropriate brand, suggested that the sellers might be intending not to carry out their contract, but I cannot think it goes any further than that the buyers might reasonably say to themselves: 'This looks as though the sellers have repudiated, or are intending to repudiate, the contract, unless there is some other explanation'. It seems to me one must make that reservation -'unless there is some other explanation'. It seems to me one must make that reservation -'unless there is some other explanation'. I think it is impossible to say that there might not have been some other explanation. Possibly the sellers still intending to honour their contract in every respect, might, for some reason or other, have removed the one hundred and forty cases of rabbits to some other store where they would be just as easily available. Perhaps the sellers might have made some other mistake, for example, they might have deposited the cases in one cold store and inadvertently given the buyers the address of another. If it be right to say that the most the buyers could properly infer was an intention on the part of the sellers to repudiate the contract unless there was some other explanation of the apparent absence from the stores of any rabbits of the appropriate brand, then it behaved them to take the simple and reasonable step, which any business man would take, of going to the sellers and saying: 'what has happened about our rabbits? We are told by the Crown Wharf Cold Stores that there are none there'." - p. 299. Morris, L.J. observed: "It seems to me that the buyers must have thought that there was some mistake and that there would be some simple explanation if they sought it. In my view, the appropriate question to ask is whether the sellers made plain an intention not to perform the contract. It seems to me there was nothing to suggest that the sellers were not proposing to perform the contract, except this rather surprising statement, due to a misapprehension, made by the Crown Wharf Cold Stores. A reasonable thing for the buyers to have done would have been to seek an explanation which could so readily have been forthcoming". - p. 300. In this case the representation stated to have been made to the appellants by Adam must have been a surprise to the respondent. The reasonable thing for the appellants to have done was, as observed by Jenkins, L.J. and Morris, L.J. in the above extracts, to approach the seller and inform him what happened. The seller might have been under a misapprehension as to the due date of delivery. The reasonable thing for the appellants to have done was, as observed by Jenkins, L.J. and Morris, L.J. in the above extracts, to approach the seller and inform him what happened. The seller might have been under a misapprehension as to the due date of delivery. The seller could then have arranged for delivery from Oosman or any other person as he in fact did as soon as he was told about the non-delivery by Adam. The appellants were not, under the circumstances, entitled to cancel the contract as they did by their letter of 29th June. When the buyer wrongly rescinded the contract, two course were open to the seller either (1) to take the contract as broken by the buyer on account of his wrongful rescission or (2) to ignore the rescission and deem the contract as subsisting. The Respondent pursued the latter course and by his letter of 1st July intimated the appellants to take delivery from Oosman. On electing the latter course, in the words of Cockburn, C.J. in Frost v. Knight (1870 L.R. 7 Ext. 111): "He keeps the contract alive for the benefit of the other party as well as his own; he remains subject to all his own obligations and liabilities under it and enables the other party not only to complete the contract if so advised, notwithstanding his previous repudiation of it, but also to take advantage of any supervening circumstance which would justify him in declining to compete it". The respondent was right in not accepting the cancellation of the contract by the appellants and keeping it alive. The question is whether he was right also in intimating the appellants that on default of their taking delivery by 4 p.m. on the 2nd July the oil will be resold at their risk. 10. Cl. The respondent was right in not accepting the cancellation of the contract by the appellants and keeping it alive. The question is whether he was right also in intimating the appellants that on default of their taking delivery by 4 p.m. on the 2nd July the oil will be resold at their risk. 10. Cl. (c) of the first sub-section of the 46th Section of the Sale of Goods Act confers upon an unpaid seller "a right of resale as limited by this Act" and the 54th Section in the 2nd clause provides: "(2) Where the goods are of a perishable nature, or where the unpaid seller who has exercised his right of lien or stoppage in transit gives notice to the buyer of his intention to resell, the unpaid seller may, if the buyer does not within a reasonable time pay or tender the price, resell the goods within a reasonable time and recover from the original buyer damages for any loss occasioned by his breach of contract, but the buyer shall not be entitled to any profit which may occur on the resale. If such notice is not given, the unpaid seller shall not be entitled to recover such damages and the buyer shall be entitled to the profit, if any, on the resale". On the facts it is obvious that no question of exercise of his right of lien under the 47th Section or of stoppage in transit under the 50th Section arises in this case. Are the goods here of a perishable nature? Goods like fresh fish or fruits which are subject to natural decay clearly come within the connotation of the expression "perishable". In view of the definition of "goods" in the Act so as to include such things as stocks and shares, whether the term cannot be construed as comprising goods "commercially perishable" as well, is an aspect worth consideration. Best, C.J. said in Maclean v. Duna (4 Bing 722 at 728; 29 R.R. 714): "Then, with regard to the resale, it seems clear to me, that it did not rescind the contract. It is admitted that perishable articles may be resold. It is difficult to say what may be esteemed perishable articles, and what not; but if articles are not perishable, price is, and may alter in a few days, or a few hours. It is admitted that perishable articles may be resold. It is difficult to say what may be esteemed perishable articles, and what not; but if articles are not perishable, price is, and may alter in a few days, or a few hours. In that respect there is no difference between one commodity and another. It is a practice, therefore, founded on good sense, to make a resale of a disputed article, and to hold the original contractor responsible for the difference. The practice itself affords some evidence of the law, and we ought not to oppose it, except on the authority of decided cases. Those which have been cited do not apply. Where a man, in an action for goods sold and delivered, insists on having from the vendee the price at which he contracted to dispose of his goods, he cannot, perhaps, consistently with such a demand, dispose of them to another; but if he sues for damages in consequence of the vendee's refusing to complete his contract, it is not necessary that he should retain dominion over the goods; he merely alleges that a contract was entered into for the purchase of certain articles, that it has not been fulfilled, and that he has sustained damage in consequence. There is nothing in this which requires that the property should be in his hands when he commences the suit; and it is required neither by justice, nor by the practice of the mercantile world". I do not think it necessary to express my view of the point because the statutory right of resale arises only when property passes to the buyer which is not the case here and no case of reservation of a right of resale in the contract is set up in which event resale may be permissible even before property passes to the buyer. Indeed the resale was not sought to be justified by respondent's counsel. 11. The appellants stood firm in the stand that they took in cancelling the contract on Adam's default to deliver. In that they were wrong. It was their obligation as buyer to have demanded delivery of the seller whether the sale be of 'ready' goods or of 'forward' goods that is to say, whether the delivery be 'ready' or 'deferred'. 11. The appellants stood firm in the stand that they took in cancelling the contract on Adam's default to deliver. In that they were wrong. It was their obligation as buyer to have demanded delivery of the seller whether the sale be of 'ready' goods or of 'forward' goods that is to say, whether the delivery be 'ready' or 'deferred'. Even in a case of ready delivery where no time is fixed, delivery will be proper if made within a reasonable time after demand. There is no obligation on the part of the seller to offer to deliver, it being the buyer's duty to demand delivery. The respondents even offered delivery to the appellants giving them some time to pay the price and take delivery from Oosman though he was not right in having said that if the appellants did not get delivery from Adam, it was on account of their mistake, if he means that if they exercised their option they were doing so at their risk. That, however, does not appear to be the meaning intended to be conveyed by the letter which would rather suggest that the approach to Adam was not proper, that is to say, was without authority formally given by the respondent-seller. Even if the respondent had no stock under his control at the time of contract that would not matter because, as Bramwell, L.J. observed in Borrowman's case (1878 (4) Q.B.D. 500): "It is quite competent for a man to sell what does not belong to him; before the time for performance he may have bought it or procured the assignment of it, and be ready to fulfil his contract." (p. 502). 12. Did the respondent resell? and if so, when and at what price? The action is laid as one for loss sustained at a resale. That is its only foundation. The plaint averred the resale as having taken place on the 3rd of July. The plaintiff's agent Achutha Bhat who have evidence on behalf of the plaintiff was positive that there was no resale on the 3rd of July and that the resale was on the 2nd, which was to Adam, the very person who defaulted to deliver to the appellants. The plaintiff's agent Achutha Bhat who have evidence on behalf of the plaintiff was positive that there was no resale on the 3rd of July and that the resale was on the 2nd, which was to Adam, the very person who defaulted to deliver to the appellants. It is admitted that there are papers in the shape of books or accounts maintained both by Adam as also by the respondent, which will reveal the time and other particulars of the resale. None such is before court. In their absence and in the absence of an application for leave to amend the plaint or an explanation why the 3rd July happened to be mentioned in the plaint as the date of resale, it is not possible to award any relief to the respondent for loss sustained by him on a resale assuming he had a right to resell. The time of the resale is a pure question of fact and being the foundation of the action, must be averred in the plaint and if disputed, proved. The appellants suggest that the alleged resale is unreal as what might have happened, if at all, would have been only a covering of the contract between the respondent and Adam. If the resale on the 2nd of July had been alleged and sought to be proved, it would have been open to the appellants to contest that case and seek even to disprove it. Had the resale been on the 3rd July as alleged in the plaint, the respondent would not have sustained any loss because, on that day, the price rose to Rs. 560 per candy which was the contract price. 13. As observed by His Lordship Bose, J. in Kadar Lal Seal v. Hari Lal Seal (1952 S.C.J. 37 at 45): "I would be slow to throw out a claim on a mere technicality of pleading when the substance of the thing is there and no prejudice is caused to the other side, however clumsily or inartistically the plaint may be worded. In any event it is always open to a court to give a plaintiff such general or other relief as it deems just to the same extent as if it had been asked for, provided that occasions no prejudice to the other side beyond what can be compensated for in costs". In any event it is always open to a court to give a plaintiff such general or other relief as it deems just to the same extent as if it had been asked for, provided that occasions no prejudice to the other side beyond what can be compensated for in costs". In the words of Macleod, C.J. and Shah, J. in Narsinggiri Co. v. Budansaheb (A.I.R. 1924 Bom. 390 at 391): "It is going too far to hold that when a plaintiff has made a mistake in demanding damages on a wrong basis, the court must refuse to set right the mistake by directing the damages to be calculated in the proper way unless the plaint is amended". 14. If the plaint be regarded not as one for any loss sustained at a resale on which basis, as above stated, the respondent cannot succeed, but as one for damages for breach of contract by the buyer (appellants) in having refused to take delivery as it has been regarded by the Munsiff as also by the District Judge, the question arises as to the time at which they should have taken delivery. Even in a case of a contract for 'ready' delivery, it need be taken only within a reasonable time. What time is reasonable is a question of fact depending upon the circumstances of each case with reference to the commodity, the quantity, the place etc. etc. (A.I.R. 1948 Bom.1). From the respondent's own case, the parties contemplated completion of the transaction in 3 or 4 days, which may, therefore, be regarded as a reasonable time for tendering or taking delivery. The evidence shows that the business hours are between 8 a.m. and 5 p.m. The contract was made on the 28th June towards the close of the day's business. That was why the appellants approached Adam the next day. 30th June was a Sunday when no business was transacted. On the 1st of July the respondent addressed the appellants asking them to pay and take delivery by 4 p.m. on the 2nd. The appellants did not respond to it. If the appellants can be considered to have committed a breach of the contract in not having taken delivery at the hour appointed by the respondent on the 2nd July, then the respondent's claim would be well founded. The appellants did not respond to it. If the appellants can be considered to have committed a breach of the contract in not having taken delivery at the hour appointed by the respondent on the 2nd July, then the respondent's claim would be well founded. If, on the other hand, the respondent was not, in law, justified in fixing that hour or day for taking delivery, then the appellant's omission would not be a default. What hour is reasonable is again a question of fact under the 4th clause of the 36th Section of the Act depending upon the circumstances of each case. No evidence specifically directed to showing whether 4 p.m. would be reasonable hour in this case has been adduced. There is evidence that the business closes by 5 p.m. The respondent's learned counsel suggested a further remit of the case to the trial court to take evidence upon this question. I do not consider it proper or necessary to accede to that request because, in my view, assuming the hour fixed on the 2nd July was reasonable, fixation of the 2nd July as the last day for taking delivery repudiating liability to deliver beyond that date is unjustified. The respondent having kept the contract open for performance on their side by non-acceptance of the cancellation made by the appellants, could, in law, have demanded of the appellants, payment of the money offering delivery of the goods sold. If the demand for payment be not complied with, payment could have been enforced even without delivery on the continued readiness of the seller to deliver. It was beyond the competence of the respondent to deprive the buyer (appellants) of their right to the goods purchased by them. On delay to take delivery the seller can charge the buyer with godown rent or other expenses for keeping the goods. In this case, the respondent's position as clarified before this Court in Second Appeal is indicated by the fresh issue formed. The finding recorded by the trial court is that a minimum period of 4 days should elapse before the appellants could demand delivery. That minimum period exists for the advantage or detriment of both parties, that is to say, that period must be regarded as reasonable time for the buyer demanding delivery and the seller insisting upon payment being made and/or delivery being taken. That minimum period exists for the advantage or detriment of both parties, that is to say, that period must be regarded as reasonable time for the buyer demanding delivery and the seller insisting upon payment being made and/or delivery being taken. The 3rd of July was, therefore, a day on which the appellants could have demanded delivery and the respondent-plaintiff acted wrongly in repudiating liability to deliver on that date, which he clearly did by his letter of that date. The appellants, therefore, did not commit breach of the contract in not complying with the demand of the respondent-seller to take delivery on the 2nd July and on the 3rd the market price was the same as the contract price. If so, the respondent sustained no damage and is not entitled to recover any amount from the appellants. 15. In the result the second appeal is allowed and the suit dismissed. 16. In view of the fact that neither party revealed the whole truth nor cared to place relevant materials before court and that even production of the correspondence which is the sole repository of the events connected with the transaction was delayed till the stage of second appeal, I consider it proper to direct both parties to pay themselves their respective costs here and in both the courts below. Allowed.