S.N.MODI, J. - (1.) THESE two civil regular first appeals arise out of two cross -suits which were consolidated and disposed of together by one common judgment of the learned Senior Civil Judge, Jaipur City, dated 29th September, 1958.
(2.) BRIEFLY put the facts relevant to the controversy which now remains between the parties, are that Ramdeo and others entered into contracts for the forward purchase of 600 bales of Bardana (gunny bags) of Mah Sudi Poonam delivery (waida) with the firm Messrs. Birdhichand Sumermal on different dates between Posh Badi 10 and Posh Sudi 1, Smt. 2000, at varying rates between Rs. 81/6/ - and Rs. 82/8/ -. One bale contained 500 bags and the price of 100 bags was quoted as the rate. Messrs. Birdh chand Sumermal did not deliver the bags to Ramdeo and: others who filed a suit on 4 -4 -1947 (subsequently registered as suit No. 45 of 1952) against the firm Messrs. Birdhichand Sumermal and its partners Gambhirmal and Tikamchand. It was alleged in para three of the plaint, as originally filed, that, according to the usage of the market at Sambhar, where the contract was entered into, the goods of Poonam delivery are delivered from, Badi 1 to Badi 5 of the succeeding month and the payment of the price of the goods is also made by Badi 5 of the succeeding month. The plaint was subsequently amended and it was also pleaded that the usage further was that in case the delivery of the contractual goods is not given or taken by Badi 5 of the succeeding month, the profit or loss is paid or received according to the highest market rate on Badi 5. Further, it was pleaded by Ramdeo and others that despite demands Messrs. Birdichand Sumermal did not deliver goods by Phagun Badi 5 or even subsequent to that date and thereby committed breach of contract on Phagun Badi 5 as that was the last date on which the delivery could be made as per usage. It was alleged that the highest rate on Phagun Badi 5 was Rs. 105/ -. Ramdeo and others therefore claimed in their suit damages amounting to Rs. 77,851/9/ -. Messrs. Birdhichand Sumermal and its partners contested the suit on various grounds, inter alia, that the delivery of the goods could be demanded under the contract only on Mah Sudi Poonam. that there was no usage of the market as pleaded and that it were the plaintiffs (Ramdeo and others) who committed breach of contract, as they did not demand delivery on Mah Sudi Poonam on payment of price.
(3.) MESSRS . Birdhichand Sumermal, then, filed a cross -suit on 18 -1 -49 (subsequently registered as No. 51 of 1952) against Ramdeo and others. In addition to the allegations made in the written statement of the earlier suit, Messrs Birdhichand Sumermal and its partnters alleged that they kept the goods which Ramdeo and others had contracted to purchase and when the latter did not take delivery despite repeated requests, they sold the goods at a loss. A sum of Rs. 73,751/ - was claimed as damages for breach of contract from Ramdeo and others.;