Judgement OAK, J. : This is a defendant's appeal arising out of a suit for damages Firm Gordhan Das Anant Ram and Company, Muzaffarnagar is the plaintiff Messrs Sugar Agents Limited, Muzaffarnagar are the defendant. The parties are firms dealing in sugar. 2. The plaintiff filed the suit on 29-9-1951 on these allegations. On 9-7-1961 there was an agreement between the parties that the defendant should supply to the plaintiff at Bombay one thousand bags of sugar of Hasanpur Mills of quality D-28 at the rate of Rs. 63 per maund. The plaintiff paid the defendant Rs. 10,000 in advance. On 20-7-1961 the plaintiff placed with the defendant another order for 980 bags of sugar of the same quality. The rate settled was Rs. 62/8 per maund. The plaintiff paid another sum of Rs. 9,800 as advance. In this way by 20-7-51 there was an agreement between the parties for supplying 1,980 bags of sugar at different places. The total amount paid as advance was Rs. 19,800. Towards the end of July 1951 the defendant arranged to despatch to Bombay 700 bags of sugar in two instalments of 200 hags and 600 bags. The plaintiff instructed its agent at Bombay to issue Hundis to cover this consignment Acting on those instructions, the plaintiff's agent at Bombay deposited a sum of Rs. 1,14,281-11-0 with the Imperial Bank of India, Bombay and obtained Railway Receipts and Bills. The bills indicated that the sugar despatched was of D-27 qualify, and not of D-28 quality. This information was conveyed by the agent to the plaintiff. The plaintiff sent a telegram to the defendant protesting that the plaintiff was not prepared to accept sugar of D-27 quality. The plaintiff charged the defendant for breach of contract, and rescinded the contract. The defendant gave no reply to the plaintiff's telegram. Another consignment of 100 bags of sugar was sent to Navlakhi. That consignment was also for sugar of inferior quality. The defendant was asked to remove these bags of sugar lying at Bombay at Navlakhi. But the defendant paid no attention to this advice. The plaintiff advised its agents to arrange for resale of the sugar to reduce loss. Resale of sugar at Bombay resulted in a loss amounting to Rs. 14,971-8-0; while resale of sugar depatched to Navlakhi resulted in a loss of Rs. 2,591-13-9. But the defendant paid no attention to this advice. The plaintiff advised its agents to arrange for resale of the sugar to reduce loss. Resale of sugar at Bombay resulted in a loss amounting to Rs. 14,971-8-0; while resale of sugar depatched to Navlakhi resulted in a loss of Rs. 2,591-13-9. Some sugar bags were depatched by the defendant to Surendra Nagar. But the plaintiff refused to take delivery of those sugar bags. The plaintiff filed the suit to reimburse himself for the loss incurred by it on account of resale of sugar despatched by the defendant to Bombay and Navlabhi. The plaintiff also claimed refund of Rs. 19,800 paid by it as earnest money. The plaintiff also claimed interest on these amounts at the rate of 6 per cent per annum. In all, the plaintiff claimed from the defendant a sum of Rs. 38,387-9-0 as damages. 3. The defendant admitted that there was an agreement between the parties for supplying sugar at different places. According to the defendant, it was clearly understood that the defendant would supply to the plaintiff sugar of D-28 quality or of D-27 quality as might be available at the Mills In case sugar of D-27 quality was supplied, rebate would be allowed. The defendant further pleaded that the plaintiff having accepted goods, the objection as regards particular quality of sugar must be deemed to have been waived by the plaintiff. The plaintiff's right to reject goods or rescind the contract was lost due to acceptance of a part of the goods. The defendant further complained that, on account of the plaintiff's refusal to accept other consignments, the defendant buffered a loss to the extent of Rs. 24,745-9-6. The defendant denied that it was liable to pay to plaintiff any amount as damages. On the contrary, the defendant is entitled to recover damages from the plaintiff. The defendant has filed a separate suit against the plaintiff to recover damages. 4. The suit was tried by the learned Addition Civil Judge of Muzaffarnagar. He accepted the plaintiff's case that under the contract the defendant was bound to supply sugar of D-28 quality. But sugar actually supplied by the defendant to the plaintiff at different places was of D-26 quality. It was, therefore, held that the defendant was bound to compensate the plaintiff for the losses incurred by it in the resale of sugar. He accepted the plaintiff's case that under the contract the defendant was bound to supply sugar of D-28 quality. But sugar actually supplied by the defendant to the plaintiff at different places was of D-26 quality. It was, therefore, held that the defendant was bound to compensate the plaintiff for the losses incurred by it in the resale of sugar. The Court also held that the defendant must refund the money paid to it as advance. The claim for interest was also accepted. The learned Civil Judge, therefore passed in plaintiff's favour a decree for Rs. 38,387-9-0 with costs and future interest at 8 per cent per annum. The defendant, therefore, appeals. 5. In Para. 1 of the written statement it was slated that the defendant has no knowledge whether the plaintiff firm has been registered under the provisions of the Indian Partnership Act, or that it is entitled to maintain the suit. The trial Court did not frame any issue on this point. It will be noticed that the defendant did not make a definite allegation that the plaintiff firm was no. 1 registered. The defendant merely pleaded lack of knowledge on the point. Ex. 8 is the certificate of registration. The document shows that the plaintiff firm has been registered under the provisions of the Indian Partnership Act. It must, therefore, be held that the suit is maintainable. 6. The main question for decision in the appeal is whether there was in the contract a specific term that the sugar to be supplied by the defendant to the plaintiff should be of D-28 quality. The plaintiff examined two witnesses on this point. Shiva Narain (P.W. 2) is a resident of Muzaffarnagar. He works as an agent for selling sugar. He stated that he was present when the transaction was settled between the parties in July 1951. The transaction related to Hasanpur D-28. It was not settled that, if D-28 was not available. D-27 would be supplied. Shiva Narain was working as selling agent for the defendant. So, Shiva Narain's testimony is valuable. 7. Ram Narain (P.W. 5) is a partner in the plaintiff firm. He was present, when the transaction was settled. He deposed that the transaction was for Hasanpur D-28 There was no contract that D-27 could also be supplied. Towards the end of his examination-in-chief. So, Shiva Narain's testimony is valuable. 7. Ram Narain (P.W. 5) is a partner in the plaintiff firm. He was present, when the transaction was settled. He deposed that the transaction was for Hasanpur D-28 There was no contract that D-27 could also be supplied. Towards the end of his examination-in-chief. Ram Narain stated :- ''The contract which was between us and the defendant was written by Shiva Narain.. . . . In it all the terms were not written. Only this much was written that 1000 bags of D-28 were purchased by us at the rate of Rs. 68 per maund and that they would be despatched either to Wadi Bandar or to Carnac Bridge where there would be special freight. Whatever has been written is filed and is in the Court. This is the same memo, …" At this place the record does not refer to any exhibit number. It is possible that the witness was referring to Ex. 13/1 or Ex 14/1. In cross-examination Ram Narain said that the contract which was made verbally was also written. But it has not been filed. After a few sentences the witness referred to Ex. 13/1 Ram Narain's cross-examination concluded thus :- "All the terms of contract were written in Ex. 13/1 and the Challan. The terms in addition to them were also written in the account book relating to transaction, and they were not written at any other place. The account book relating to transaction is at the shop. We did not think it necessary to file it. But in case the defendant wants. I can bring it." 8. Madan Mohan (D.W. 1) is the defendant's Manager at Muzaffarnagar. He stated that when the transaction was settled, no question was raised as regards quality of sugar. The transaction related to thousands of rupees. It is difficult to believe Madan Mohan's statement that the transaction was settled without any reference to the quality of sugar. The learned Civil Judge has pointed out that Madan Mohan made a vacillating statement on this point. 9. Between the 9th and the 20th of July, 1951, the plain till wrote to the defendant a series of letters giving instructions about despatch of sugar to different places Ex. 13/1 and Exs. 14/1 to 14/5 are carbon copies of those communications Ex. 13/1 makes no reference to the quality of sugar Ex. 9. Between the 9th and the 20th of July, 1951, the plain till wrote to the defendant a series of letters giving instructions about despatch of sugar to different places Ex. 13/1 and Exs. 14/1 to 14/5 are carbon copies of those communications Ex. 13/1 makes no reference to the quality of sugar Ex. 14/1 refers to Hasanpur D-28. The rate quoted was Rs. 63. Thai was the rule for D-28 quality. Ex. 13/1 and Ex. 14/1 : are both dated 9-7-1951. Ex. 14/2 dated 12-7-1951 Exs. 14/3, 14/4 and 14/5 are all dated 20-7-1951. All the four documents refer to Hasanpur D-28. The rate mentioned in Ex. 14/3 and Ex. 14/4 was Rs. 62-8-0 per maund. That was the rate settled, when the plaintiff placed the second order for 980 bags of sugar. 10. Mr. Ashok Gupta, appearing for the defendant-appellant, contended that these documents (Exs. 13/1 to 14/5) are not admissible in evidence, as they are mere carbon copies. He contended that the original letters were not summoned from the defendant, and secondary evidence is not, therefore, admissible Section 65, Indian Evidence Act enumerates cases, in which secondary evidence is admissible. Clause (a) of S. 65 is :- "When the original is shown or appears to he in the possession or power of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to the process of the Court,….. And when, after the notice mentioned in S. 66. such person does not produce it." Section 66, Indian Evidence Act states :- "Secondary evidence of the documents referred to in S. 65, Cl. (a), shall not be given unless the party proposing to give such secondary evidence has previously given to the party in whose possession or power the document is …… .such notice to produce it. …. .: Provided that such notice shall not be required in order to render secondary evidence admissible in any of the following cases, or in any other case in which the Court thinks fit to dispense with it…. ." Clause (b) of S. 65, Indian Evidence Act is :- "When the existence, condition of contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest." 11. On the back of Ex. 13/1 and Exs. ." Clause (b) of S. 65, Indian Evidence Act is :- "When the existence, condition of contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest." 11. On the back of Ex. 13/1 and Exs. 14/1 to 14/5 we find the following endorsement :- "Received letter of these contents." Below that endorsement we find one signature. On comparing that signature with the signature at the foot of Madan Mohan's deposition. It appears that all those endorsements were signed by Madan Mohan (D.W. 1) as representative of the defendant. These endorsements on the back of the documents imply two admissions. Firstly, such letters reached Madan Mohan. Secondly, contents of those letters tallied with the carbon copies. Existence and contents of the original letters having been proved to be admitted in writing by Madan Mohan, one need not insist on the production of the original letters before the Court. Under Cls. (a) and (b) of S. 65, Indian Evidence Act, these six documents (Exs. 13/1 and 14/1 to 14/5) are admissible in evidence. 12. Mr. Ashok Gupta contended that, in view of Ram Narain's statement that the contract was reduced to writing, oral evidence to prove the terms of the contract is not admissible. The point would have had force, if one could be sure that the terms of the contract were reduced to writing. On the one hand. Ram Narain said that the contract was written. On the other hand. Madan Mohan (D.W. 1) deposed that the transaction was made verbally. Neither the plaint nor the written statement referred to any written contract A plaintiff may be bound by the statement contained in the plaint. But the plaintiff need not be bound by a statement made by a witness for the plaintiff. The true position seems to be that there was an oral agreement between the parties in the presence of Shiva Narain. Oral evidence to prove the terms of the contract is, therefore, admissible Several letters written by the plaintiff to the defendant in July 1951 referred to Hasanpur D-28. Shiva Narain definitely stated that the contract was for Hasanpur D-28. Shiva Narain's statement is supported by Exs. 14/1 to 14/5. It is thus proved that the contract between the parties provided for supply of sugar of D-28 quality. 13. Shiva Narain definitely stated that the contract was for Hasanpur D-28. Shiva Narain's statement is supported by Exs. 14/1 to 14/5. It is thus proved that the contract between the parties provided for supply of sugar of D-28 quality. 13. Seven hundred bags of sugar were sent to Bombay. Firm Sher Singh Das Banarsi Das is plaintiff's agent at Bombay. Rameshwar Das (P.W. 1) is a partner of Sher Singh Das Banarsi Das of Bombay. He described the circumstances under which the 700 bags were received at Bombay in two instalments of 200 bags and 500 bags. It is true that the bills received by Rameshwar Das mentioned D-27 quality. But this information was obtained by Rameshwar Das only after he had deposited Rs. 1,14,281-11-0 with the Imperial Bank of India, Bombay. 14. We have to ascertain the quality of sugar contained in those 700 bags. The defendant did not suggest that the sugar sent to Bombay was of D-28 quality. It was pleaded in Para. 8 of the written statement that the sugar sent to Bombay was of D-27 quality. In paragraph 13 of the plaint it was pleaded that the goods despatched to Bombay were not even D-27. So the question for consideration is whether that sugar was D-27 or of some inferior quality. [After discussing the evidence of both the parties his Lordship proceeded.] 15-26. According to the contract between the parties, the defendant had to supply sugar of D-28 grade. That was not done. Sugar supplied at Bombay and Navalakhi was of D-26 grade. There was breach of contract on the part of the defendant. It is, therefore, liable to pay damages. 27. Admittedly, there was a contract of sale. The question remains whether goods were accepted by the plaintiff, and whether there was a complete transaction of sale. The term 'sale' has been defined in S. 4 of the Sale of Goods Act. According to Sub-Section (3) of S. 4 of the Act, "where under a contract of sale the property in the goods is transferred from the seller to the buyer, the contract is called a sale . It is, therefore, necessary to ascertain whether in the present case goods were transferred from the defendant to the plaintiff. Mr. Ashok Gupta urged that, on obtaining Railway Receipts from the Bank, the title to the goods vested in the plaintiff. It is, therefore, necessary to ascertain whether in the present case goods were transferred from the defendant to the plaintiff. Mr. Ashok Gupta urged that, on obtaining Railway Receipts from the Bank, the title to the goods vested in the plaintiff. It is true that the Railway Receipts empowered the plaintiff to collect the goods from the railway authorities. But it was open to the plaintiff to reject the goods even after paving the price and obtaining Railway Receipts. Admittedly, goods were delivered to the plaintiff's agents at Bombay and Navalakhi. Delivery of goods is an indication of acceptance by the buyer. But delivery is not conclusive evidence of acceptance. Delivery may take place without acceptance. The question whether the plaintiff accepted the goods or not will have to be decided in the light of the conduct of the parties between 7-8-1951 and 3-9-1951. 28. Rameshwar Das (P.W. 1) received the sugar bags at Bombay on plaintiff's behalf. The price was paid on 7-8-1951. On that day bills and Railway Receipts were obtained from the Bank. On finding that the bills mentioned D-27 grade. Rameshwar Das sent a telephonic message to the plaintiff at Muzaffarnagar. On 11-8-1951 the plaintiff sent the telegram (Ex. 1) to the defendant. The telegram ran thus : "Retired Biltles 700 bags sugar Hasanpur Mills by our Bombay party but quality billed D-27. …. As such made a breach of contract and hence we reserve the right to rescind stop now exercising our above right we hereby rescind our contract for Wadibundar despatches stop return our deposit money immediately and arrange to take Bilties for 700 bags sugar already retired against payment which are lying in our account with our Bombay party." On 18-8-1951 the plaintiff sent two telegrams (Exs. 3 and 17) Telegram (Ex. 3) ran thus :- "Reference despatch of 700 bags of sugar Hasanpur to Wadibunder - wet, damaged and brown colour goods lying on your risk and responsibilities. Arrange to take delivery from our Bombay party immediately stop Contract D-28 you allege sending D-27…………" Telegram (Ex. 17) thus :- "Received your seventeenth Not responsible stop Bombay goods arrived Take delivery from our godown within seven days otherwise reselling your account on your risk and responsibility.' On 22-8-1951 the plaintiff sent to the defendant telegram (Ex 4). Which ran thus :- "Reference Navlakhi Bilty. Our representative informs goods arrived grade very low . 17) thus :- "Received your seventeenth Not responsible stop Bombay goods arrived Take delivery from our godown within seven days otherwise reselling your account on your risk and responsibility.' On 22-8-1951 the plaintiff sent to the defendant telegram (Ex 4). Which ran thus :- "Reference Navlakhi Bilty. Our representative informs goods arrived grade very low . .. .. .. Our bargain for D-28 stop Not accepting this sugar stop Arrange to take back goods from our godown there within seven days otherwise reselling your account on your risk you responsible all losses" On 29-8-1961 the plaintiff sent telegram (Ex. 5). Which runs thus :- "Regarding despatch of Bombay and Navlakhi of Hasanpur sugar you failed to take back sugar stop Reselling your account on your risk Note." On 6-9-1951 the plaintiff sent to the defendant telegram (Ex 6), which ran thus :- "You failed to take delivery of seven hundred bags Hasanpur sugar from our party at Bombay in spite our repeated request Sold Hasanpur.. .. ., . . .." In spite of all these communications, the defendant did not take any steps to collect the sugar bags lying at Bombay and at Navlakhi. The plaintiff, therefore, sold the sugar on 3-9-1951. 29. Mr. Ashok Gupta pointed out that in the plaint the transaction of 3-9-1951 has been described as re-sale The term 're-sale' implies a prior sale. It was, therefore, urged for the appellant that, if the transaction of 3-9 1951 amounted to re-sale, the transaction at Bombay and Navlakhi of August 1951 must have constituted sales We must remember that the plaintiff's agents paid up the price for goods sent to Bombay and Navlakhi Delivery of goods was taken. It was, therefore, possible to treat these transactions of August 1951 as sales in a loose sense. The expressions 'sales' and 're-sale appear to have been used in the plaint in the popular sense, and not in the technical sense. Ex. 19 the notice published by Rameshwar Das (P.W. 1) announcing an auction of 700 bags of sugar. The notice (Ex. 19) ran thus :- "The public in general is hereby informed that under the directions of our traders Gobardahan Das Anant Ram and Company, Muzaffarnagar we are going to make auction sale of 700 bags of sugar crystle. Mr. Ex. 19 the notice published by Rameshwar Das (P.W. 1) announcing an auction of 700 bags of sugar. The notice (Ex. 19) ran thus :- "The public in general is hereby informed that under the directions of our traders Gobardahan Das Anant Ram and Company, Muzaffarnagar we are going to make auction sale of 700 bags of sugar crystle. Mr. Ashok Gupta pointed out that the notice did not give any indication to the prospective purchasers that the sugar belonged to the defendant. Now, the defendant is a firm of Muzaffarnagar. Goods were lying at Bombay. The agent al Bombay was acting under plaintiff's instructions. The prospective purchasers were hardly interested in the question whether the sugar belonged to the plaintiff or to the defendant. Omission to mention the defendant in the notice does not imply that the goods had been accepted by the plaintiff. It is true that sugar bags were delivered to the plaintiff's agent at Bombay and Navlakhi. But in She various telegrams sent to the defendant 'he plaintiff made it clear that, (a) the plaintiff was rescinding the contract, (b) that the plaintiff was holding the goods on a temporary basis, and © that the plaintiff proposed to sell the goods on defendant's behalf. 30. According to S. 43 of Sale of Goods Act, the buyer is not bound to return rejected goods. Section 42 of the Act deals with acceptance. Section 42. Sale of Goods Act states :- "The buyer is deemed to have accepted the goods when he intimates to the seller that he has accepted them, or when the goods have been delivered to him and he does any act in relation to them which is inconsistent with the ownership of the seller, or when, after the lapse of a reasonable time, he retains the goods without intimating to the seller that he has rejected them." 31. Section 42 of the Act deals with three different situations. The first part of S. 42 deals with a case where the buyer intimates to the seller that the has accepted the goods. In the present case the plaintiff never intimated to the defendant that the plaintiff has accepted the goods. Section 42 of the Act deals with three different situations. The first part of S. 42 deals with a case where the buyer intimates to the seller that the has accepted the goods. In the present case the plaintiff never intimated to the defendant that the plaintiff has accepted the goods. On the contrary, the plaintiff was complaining that the goods were not of the quality stipulated The second part of S. 42 deals with a case, where goods have been delivered to the buyer and he does any act in relation to them which is inconsistent with the ownership of the seller in the instant case the goods were delivered to the plaintiff's agents under instructions from the plaintiff, the goods were sold. But it was made clear in the telegrams sent to the defendant that the sugar was being sold on defendant's, behalf Delivery of sugar to the plaintiff's agents and the sale on 3-9-1951 are consistent with the ownership of the defendant. The third part of S. 42 deals with a case, where the buyer retains the goods without intimating to the seller that the buyer has rejected them in the present case the buyer did not retain the goods permanently. The sugar bags were with the plaintiff's agents for about two weeks. The sugar was sold away on 8-9-1961 after giving an opportunity to the defendant to arrange for its sale. The defendant was told that the goods were not acceptable to the plaintiff. Thus the present case is not covered by any part of S. 42 of Sale of Goods Act. The plaintiff's conduct shows that the sugar bags sent to Bombay and Navlakhi were not accepted by it. There was no complete transaction of sale. 32. The next question for consideration is whether the plaintiff was competent to sell goods belonging to the defendant. The learned Advocate General, appearing for the plaintiff respondent, contended that, as defendant's agent, the plaintiff had the authority to sell the goods. Mr. Ashok Gupta pointed out that, agency was not pleaded by the plaintiff'. The defendant never issued any authority to the plaintiff to sell the goods. It is true that there was no express appointment as an agent. But the plaintiff was holding goods belonging to the defendant. So, plaintiff's position was analogous to that of an agent. 33. Mr. Ashok Gupta pointed out that, agency was not pleaded by the plaintiff'. The defendant never issued any authority to the plaintiff to sell the goods. It is true that there was no express appointment as an agent. But the plaintiff was holding goods belonging to the defendant. So, plaintiff's position was analogous to that of an agent. 33. In Ellis Clerk v. Chinnock, (1835) 7 Car and P 169 : 173 ER 74, the plaintiff rejected a horse on the ground that it was not sound. The defendant refused to take it back. The plaintiff sought to recover expenses incurred by the plaintiff in maintaining the horse. Coleridge, J. observed :- "With respect to the keep of the horse. I am of opinion that, if a person has bought a horse with a warranty, which has been broken, and he tenders the horse to the seller, and the seller refuses to receive it back, the buyer is entitled to keep it a reasonable time till he can sell it, and for that time he may, against the seller, recover the expenses of keeping it; but he must not keep it as long as he chooses. All that he is allowed to do is to keep it for a reasonable time till he can fairly sell it." 34. In Chapman v. Morton, (1843) 11 M and W 534 : 152 ER 917 Lord Abinger, C B.. Observed on page 920 :- "If the defendant intended to renounce the contract, he ought to have given the plaintiffs distinct notice at once that he repudiated the goods, and that on such a day he should sell them by such a person, for the benefit of the plaintiffs. The plaintiffs could then have called upon the auctioneer for the proceeds of the sale." 35. These decisions are authorities for the view that a buyer, who has rejected goods, may sell them on behalf of the seller. In the present case the sugar bags were rejected by the plaintiff. The material was lying in the custody of the plaintiff's agents at Bombay and Navlakhi. The plaintiff invited the defendant to take back the goods The defendant was warned that the plaintiff would be obliged to sell the sugar on behalf of the defendant. The defendant took no steps to recover the sugar. Under the circumstances, sale of the sugar by the plaintiff was justified. The plaintiff invited the defendant to take back the goods The defendant was warned that the plaintiff would be obliged to sell the sugar on behalf of the defendant. The defendant took no steps to recover the sugar. Under the circumstances, sale of the sugar by the plaintiff was justified. The sugar supplied to the plaintiff was of inferior quality. It was rainy season. There was risk that the material might deteriorate. The plaintiff was justified in arranging for the sale of the article in order to reduce losses. 36. Lastly, we have to devise a suitable method for assessing damages. In Halsbury's Laws of England, Third Edition, Volume 34, it is stated on page 97 under paragraph 144 thus :- "Where the seller delivers to the buyer a quality of goods less than he contracted to sell, the buyer may reject them, but if the buyer accepts the goods so delivered, he must pay for them at the contract rate." In Jones v. Just, (1868) 3 QB 197 the plaintiff at Liverpool entered into a contract with the defendant for the purchase of Manilla hemp to arrive from Singapore by ships. The hemp received was not merchantable. The plaintiff sold the hemp by auction, and realized 75 per cent of the price which similar hemp would have fetched if undamaged. It was held that the plaintiff were entitled, as damages, to the difference between what the hemp was worth when it arrived and what the same hemp would have realized had it been shipped in a state in which it ought to have been shipped. 37. In Nagardas v. Velmahomed, AIR 1930 Bom 249 it was held that, if a buyer orders goods of a certain description and the seller delivers goods of a different description it is open to the buyer to reject them. But if he does not reject them but keeps the goods, be is debarred from rejecting the goods thereafter. He can only fall back upon a claim for damages, as upon a breach of warranty. 38. In Sumer Chand v. Ardeshir, (1907) 4 All LJ 245 it was held that, if goods are sold by sample and the goods delivered do not answer to the contract, the buyer may reject them. But he is not bound to do so. He can only fall back upon a claim for damages, as upon a breach of warranty. 38. In Sumer Chand v. Ardeshir, (1907) 4 All LJ 245 it was held that, if goods are sold by sample and the goods delivered do not answer to the contract, the buyer may reject them. But he is not bound to do so. But if, in order to recoup himself for the price paid in advance, he sells a portion of the goods, he exercises such dominion over the goods as precludes him from setting up the defence in a suit, for the balance of price, that he is not liable to pay. 39. These cases would have considerably assisted the appellant, had the plaintiff accepted I he good's and sold them to reduce its own loss. But that is not the situation here. In the present case the goods were rejected by the plaintiff. They were sold on behalf of the defendant. So the principle underlying those cases will not apply to the present case. 40. Section 73 of the Contract Act provides for compensation for loss or damage caused by breach of contract, and runs thus :- "When a contract has been broken, the party who suffers by such breach is entitled to receive, from the party who has broken the contract, compensation for any loss or damage caused to him thereby, which naturally arose in the usual course of things from such breach, or which the parties knew, when they made the contract, to be likely to result from the breach of it. . . . . . ." 41. In the present case there was a contract between the parties for supply of sugar. The plaintiff hoped to get sugar of D-28 grade, two sums were paid as advance. The goods received were not of the quality stipulated. They were, therefore, rejected. The article was sold to reduce losses. In such a case the plaintiff should recover money under the following heads : (i) Money paid as advance; (ii) loss incurred in the sale of the article : and (iii) interest on money wrongly retained by the seller. Mr. Ashok Gupta pointed out that a total sum of Rs. 8,000 was set off by the defendant against the advance in the various hills submitted to the plaintiff. It was, therefore, urged that this amount of Rs. Mr. Ashok Gupta pointed out that a total sum of Rs. 8,000 was set off by the defendant against the advance in the various hills submitted to the plaintiff. It was, therefore, urged that this amount of Rs. 8,000 should be deducted from the sum of Rs 19,800 received by the defendant as advance. Such adjustment could no doubt be made, if the plaintiff had to pay the price of goods purchased by it. But in this case there was no complete transaction of sale. The goods were rejected by the plaintiff. Since the plaintiff is not liable to pay the price of the sugar, it is not possible to adjust the sum of Rs. 8,000 against the amount paid to the defendant as advance. 42. The plaintiff claimed damages under six separate heads. The first two heads relate to the two sums of Rs. 10,000 and Rs. 9,800 as advance. Admittedly, these two sums were received by the defendant. As explained above, it is not possible to adjust Rs. 8,000 or any part of it against this advance of Rs. 19,800. The defendant must refund the earnest money in full. 43. The third item of Rs. 14,971-80 is claimed by the plaintiff on account of loss incurred by it in dealing with the 700 bags of sugar at Bombay. Rameshwar Das (P.W. 1) received the 700 bags at Bombay, and arranged for their sale on 39-1951. According to the extracts of account (Exs. 28 and 12). the plaintiff sustained a loss amounting to Rs. 14,971-8-0. 44. The fourth item claimed by the plaintiff is for Rs. 2,519-13-9 on account of loss incurred in dealing with 100 bags despatched to Navlakhi, Amarsi (P.W.) arranged for the sale of those 100 bags of sugar under instructions from the plaintiff. According to the extract (Ex. 12), the transaction resulted in a loss of Rs 2,519-13-9. 45. The fifth and the sixth item relate to interest up to 29-9-1951 (the date of filing the suit). Paragraph 18 of the plaint ran thus :- "That the mercantile market rate of interest on one's money in the New Mandi, Muzaffarnagar is Rs. 6 p.c. per annum, and hence the defendant is liable to pay the amount along with this rate of interest to the plaintiff." This position was no! disputed in the written statement. Paragraph 18 of the plaint ran thus :- "That the mercantile market rate of interest on one's money in the New Mandi, Muzaffarnagar is Rs. 6 p.c. per annum, and hence the defendant is liable to pay the amount along with this rate of interest to the plaintiff." This position was no! disputed in the written statement. The defendant is, therefore, liable to pay interest on the first four items up to 29-9-1951. The plaintiff succeeded in proving all the six items detailed at the foot of the plaint. The plaintiff's claim was rightly decreed by the learned Additional Civil Judge. 46. The appeal is dismissed with costs. Appeal dismissed.