( 1 ) THIS is a plaintiffs appeal in a suit for damages. The lower Court decreed the plaintiffs suit for rs. 1,327-8-0. The plaintiff had, however, claimed as damages Rs. 11,872-7 0. This appeal is for the balance, i. e. Rs. 10,644 15-0 only. On 2nd December 1941 there was a contract between the plaintiff and the defendant by which the defendant agreed to purchase ten cases of katan silk, panchtara Brand No. 13. 15 at the rate of Rs. 30-6-6 per pound, the date of delivery being 18th december 1941. According to the custom of the market the buyer was entitled to two days grace.

( 2 ) THE case of the plaintiff is that on the due date he sent a wire to the defendant to take delivery of the ten cases but that the defendant put it off till the Amawasya Day which was the 20th of december. On 20th December, the plaintiff got from the Central Bank of India 14 cases, 8 half and 6 full, of katan silk for delivery to the defendant. Up to here the facts are not in dispute, The plaintiffs further story was that he had sent these cases to the defendant but that the defendant had refused to take them. This story has been disbelieved by the lower Court, and it has not been seriously pressed before us in appeal.

( 3 ) THE plaintiff thereafter gave notice to the defendant that he would sell the oases unless the defendant immediately took delivery and paid for the same. On 30th December 1941, the defendant sent to the plaintiff the following telegram :

"seen notice "aj" no notice received before, contents absolutely incorrect, no delivery contemplated nor offered within the transaction wagering no liability may sell at your own risk. Moolchand. "

On the same day, the plaintiff sold the oases and the sale proceeds amounted to Bs. 17,932-0-6, out of which, after giving credit for 5 per cent, commission to the auctioneer, the plaintiff received a sum of Rs. 17,035 7 0. At the price mentioned in the contract the amount payable by the defendant came to Rs. 28,801-13-3. The plaintiff, claimed the difference as damages. The lower Court was, however, of the opinion that, as the goods had not been appropriated to the purchaser defendant the seller was not entitled to re-sell the goods at the defendants risk, and that be was, therefore, entitled only to the difference between the contract price and the market price on the date of the breach.

( 4 ) THE point for decision in this appeal is whether the damages are to be computed at the rate prevailing on the date fixed for delivery or they are to be calculated at the difference between the contract price and the price realised at the re-sale Where the title to the goods has not passed and there is no clause in the agreement giving the seller a right to re-sell the goods and there is a breach of the contract, the plaintiff can only claim the difference between the contract rate and the rate prevailing on the date of the breach. If, however, the title to the goods us passed, the seller is entitled to claim the difference between the contract price and the price realised at the re-sale, provided he has sold the goods within a reasonable time and after due notice. The question in this case is whether the plaintiff is entitled to realise the difference between the contract price and the price realized at the re-sale as there was a clause in the contract giving the plaintiff the right to re-sell. The relevant clause in the contract is as follows:

"we shall take delivery on the due date. If we do not take delivery on the due date, you shall have power to sell the goods and we shall be liable to pay the loss which may have been incurred in respect thereof. "

It is not denied that the plaintiff firm had many more cases of katan silk Panchtara, in their possession on the date of the contract, and the contract, therefore, was of unascertained goods and by description. The law requires that where unascertained goods have been sold by description, then the title would pass only if the goods have been unconditiona