Stuart, J.:— The facts of the suit out of which this appeal has arisen are these:— The defendant's firm are proved to have contracted to purchase from the plaintiffs' firm 22 maunds, 14 seers and 13 chatacks of Balchar on the 27th of February, 1920, at a price which was fixed at Rs. 815-1-3.
2. The lower appellate Court has believed the evidence of the witnesses produced by the plaintiff upon this point.
3. According to the evidence the defendants' firm agreed to take these goods as ascertained but requested the plaintiffs' firm to postpone delivery until it was convenient for the defendants' firm to take delivery. In these circumstances the provisions of the latter part of section 78, Act IX of 1872 come into operation. The parties had agreed that the delivery should be postponed. The property in the Balchar, therefore, passed to the defendants' firm on the 27th February, 1920, as soon as the proposal for sale was accepted. Such being the case, the plaintiff's suit, which was a suit for the price of goods sold, was regular and in proper form.
4. We, therefore, allow this appeal and pass the following decree. A decree will be given to the plaintiffs for Rs. 824-8-6 with interest pendente lite and future interest till the date of realization at 6 per cent per annum from 1st of May 1920, up to the date of realization. The defendants' firm will pay their own costs and those of the plaintiffs' firm in all Courts. These costs will include in this Court fees on the higher scale. This decree will not be put into execution until the plaintiffs' firm deliver the 22 maunds 14 Seers and 13 Chataks of Balchar to the defendants of the quality agreed upon or make it available for the defendants' firm to take delivery.