( 1 ) THIS is an appeal by the plaintiff from the judgment and decree of the learned civil Judge I, Indore dismissing no suit for the refund of an advance payment made to the defendant in course of a transaction following an oral agreement to buy a quantity of stone chips for building purposes, A small quantity has been delivered and accepted, the price of which the plaintiff had deducted from his claim, me rest of the agreed quantity was rejected by the plaintiff for reasons which the defendant considered unsatisfactory; Accordingly, the plaintiff demanded the refund, which being refused, he brought the suit, the Court found that the plaintiff was guilty of the breach; and at the same time that the amount given to the defendant was not earnest money properly so called guaranteeing performance of the contract, out only part of the price paid in advance, sun a decided that he was not entitled to a refund, and accordingly dismissed the suit.

( 2 ) THE questions that arose, are, ore the facts firstly, which of the parties was guilty of the breach; secondly, whether the total amount paid was Rs. 5400/- as averred by the plaintiff or only Rs. 5000/- as admitted by we defend