Oldfield and Brodhurst, JJ.
1. The facts are these. The plaintiff Amir Zama has instituted this suit against the defendant Nathu Mal to recover money due as wages, alleging that the defendant engaged him to sell cloth on his account at a fixed monthly salary.
2. It appears that the defendant has previously sued the plaintiff to recover Rs. 91-9-9 as due to him for the price of cloth sold and delivered by the defendant to the plaintiff. In that suit the plaintiff (then defendant) pleaded that there was no sale to him of any cloth, but the cloth had been delivered to him on commission-sale. The suit was dismissed on the ground that there was no proof of a sale of cloth, and the question whether any sum was due for cloth sold on commission-sale was not gone into. Now the defendant claims a set-off of Rs. 91-9-9 against the plaintiff’s claim, on the ground that out of it Rs. 87-5-0 are due to him as the price of cloth which the plaintiff had sold on his Account on commission–the rest due for cloth which the plaintiff purchased. In our opinion, under the circumstances stated, the answers to the reference should be (i) that the defendant is entitled, under Section Ill, Civil Procedure Code, to set-off this sum of Rs. 87-5-0 claimed as due for cloth sold on commission against the plaintiff’s demand, as it is an ascertained sum claimed to be due with reference to the same contract under which the plaintiff’s demand arises; (ii) that the claim for the set-off of Rs. 87-5-0 is not barred under the provisions of Section 13, Civil Procedure Code The former suit was brought by the defendant for the price of goods sold and delivered by the defendant to the plaintiff, whereas the defendant’s present claim is for money payable by the plaintiff to him for money received by the plaintiff for his (defendant’s) use, and as the price of cloth belonging to defendant and sold on his account by plaintiff.
2. The two claims are founded on different titles, and the issue raised by the latter was not in issue in the former suit, and was not heard and decided. The set-off as to Rs. 4-4-0, price of cloth alleged to have been sold to plaintiff, is not entertainable. Our reply to the remaining question is, that the Court-fee payable on the claim for set-off should be the same as for a plaint in a suit.