JUDGMENT

Asutosh Mookerjee, J. - This is an appeal by the plaintiff in a suit for damages for breath of contract. On the 30th July 1917 the plaintiff agreed to purchase and the defendant firm agreed to sell 15 tons aluminium ingots at Rs. 200 per owt. On the 6th August 1919 Anderson and Macrae, who purported to act as brokers, passed a Bought Note in the following terms :

We have this day bought by your order and for your account from Metharam Naval rai, 117 Corporation Street, the following:

15 tons (fifteen) Aluminium ingots, 93 per cent purity, at rupees two hundred only exgodown. The Aluminium may be tested by the buyer prior to delivery within a week from date. Delivery to be taken within 45 days from date of contract from seller's godown. After the expiry of the above period, the goods will remain at buyer's risk and account, and a rental of rupees ten only per day will be charged. Twenty-four hours' notice to be given before delivery is taken.

2. Tarms and conditions of this contract, Cash on delivery which is to be given and taken as follows:

Delivery--From seller's godown within 45 days from date of contract (viz. 30th July 1917).

3. Payment in full within 30 days from date of contract (viz. 30th July 1917).

4. Interest at 1 per cent, per annum above Bank rate on total amount for 30 days credit from 30th July 1917, being the date on which the previous contract was passed."

5. On the face of this contract, payment in full was to be made by the buyer to the sellers within 30 days from the 30th July 1917, that is, on or before the 29th August 1917, It is not disputed that payment was not so made, and on the 31st August 1917, the Solicitors for the sellers gave notice to the buyer that the contract was cancelled, as the time for payment had expired on the 29th August and a bill sent by them on the 30th August had not been paid. The plaintiff thereupon instituted the present suit on the 5th February 1918 for recovery of Rs. 24,000 as damages for wrongful breach of contract by the defendants.

6. The case for the plaintiff, as set out in the plaint, was that it had been arranged between him and the defendants, through the brokers, that the contract was to be considered as binding, only when confirmed by both the contracting parties; that although the plaintiff confirmed the contract on the 7th August 1917, the defendants delayed confirmation on their part; that on the insistence of the plaintiff, the parties ultimately agreed that the time for delivery and payment would be extended so as to run from date of confirmation; and that it was only on the 17th August that the defendants confirmed the contract. The contention of the plaintiff, consequently, is. that under the contract, as modified, he was entitled to make the payment within 30 days from the 17th August 1917, that is, on or before the 16th September 1917, and, that, consequently, the defendants without justification cancelled the contract before there had been default on this part. At the trial, the plaintiff gave evidence in support of the case set out in the plaint; but he also set up an alternative case, namely, that on the evening of the 30th August, there was a verbal agreement between him and Ladharam, the manager of the defendant firm, by which the time for payment and for delivery was. extended till the 3rd September. It will be observed that the two alternative cases are not easy to reconcile, because if on or about the 14th, 15th or 17th August 1917, the time for payment was extended until 30 days after confirmation, that is, until the 16th September 1917, it is difficult to appreciate why on the 30th August another verbal agreement should be made for extension of time till only the 3rd September 1917. Both these allegations obviously cannot be true; and we are not surprised to find that when the first and third issues were framed, the former in respect of alleged extension of time till 30 days after confirmation and the latter in respect of alleged extension till