L. J. Leach And Company Ltd vs Jardine Skinner And Co on 22 January, 1957

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Civil Appeal No. 219 of 1953

Decision Date: 22 January 1957

Coram: Natwarlal H. Bhagwati, Bhuvneshwar P. Sinha, S.K. Das

In the case entitled L. J. Leach And Company Ltd versus Jardine Skinner And Co, the judgment was delivered on 22 January 1957 by the Supreme Court of India, with the bench consisting of Justice Natwarlal H. Bhagwati, Justice Bhuvneshwar P. Sinha and Justice S. K. Das, and the record also indicates the presence of Justice T. L. Venkatarama on the same bench. The petitioner in the proceedings was L. J. Leach And Company Ltd and the respondent was Jardine Skinner And Co, and the judgment is reported at the citations 1957 AIR 357 and 1957 SCR 438. The principal issue before the Court concerned an application for amendment of the plaint, specifically the addition of an alternative ground of claim, and whether the necessary allegations for that alternative claim were already present in the original plaint, whether a fresh suit on the amended claim would be barred by limitation and whether the amendment should be allowed, as well as the circumstances under which an action in trover could be maintained. The headnote records that the appellants had originally instituted a suit for damages for conversion, alleging that the respondents acted as agents, that the appellants had placed orders for certain goods with the respondents, and that the respondents had imported those goods but subsequently refused to deliver them to the appellants. The trial court dismissed the suit on the finding that the parties stood in the relationship of seller and purchaser rather than agent and principal, and it held that title to the goods could pass to the appellants only when the respondents appropriated the goods to the appellants’ contracts. On appeal to the Supreme Court the appellants sought to amend the plaint by alternatively claiming damages for breach of contract for non‑delivery of the goods, and the Court observed that all the essential allegations necessary to sustain a claim for breach of contract were already contained in the original plaint; the only missing element was a specific allegation that the appellants were, in the alternative, entitled to claim damages for the non‑delivery. The Court noted, however, that a fresh suit on the amended claim would be barred by limitation at the date of the application, but nevertheless held that this circumstance was a factor to be considered in the exercise of discretion and did not deprive the Court of the power to allow the amendment where justice required. The Court followed the authorities in Charan Das v. Amir Khan, L.R. 47 I.A. 225 and Kisan Das v. Rachappa, (1909) I.L.R. 33 Bombay 644. Regarding an action in trover, the Court explained that the plaintiffs must establish that they possessed title to the goods and were entitled to possession when they demanded delivery, and if the parties were sellers and purchasers, the plaintiffs must show that title passed in accordance with the provisions of the Sale of Goods Act; alternate considerations arise if the defendants acted as agents of the plaintiffs.

If the defendants had brought the goods into the country acting as agents of the plaintiffs, the legal ownership of those goods would clearly remain with the plaintiffs. The only remaining question would then be whether the defendants were entitled to keep possession of the goods. Such entitlement would arise only if the defendants had paid the purchase price on behalf of the principals and had not yet been repaid for that amount.

The matter before the Court was an appeal numbered 219 of 1953 filed under the civil appellate jurisdiction. The appeal challenged a judgment and decree dated 26 June 1952 rendered by the Bombay High Court in appeal number 20 of 1952, which itself arose from a judgment and decree dated 17 December 1951 in the same High Court exercising its ordinary original civil jurisdiction in suit number 1623 of 1948. The appellants were represented by counsel for the Solicitor‑General of India and two additional lawyers, while the respondents were represented by a team of five advocates. The appeal was heard on 22 January 1957, and the judgment was delivered by Justice Venkatarama Ayyar. The appellant’s case originated in a suit brought before the Bombay High Court seeking damages for conversion assessed at Rs. 4,71,670‑15‑0. That suit had been decreed by Justice Shah sitting as a judge of the original side, but his decision was subsequently reversed on appeal by Chief Justice Chagla and Justice Gajendragadkar. Dissatisfied with the reversal, the plaintiffs filed the present appeal on a certificate issued under Article 133(1)(a) of the Constitution.

Messrs. Maitland Craig Lubricants Ltd. was an American corporation engaged in the manufacture and sale of lubricants. The company maintained a head office in Calcutta and operated a branch in Bombay. The second plaintiff, H. J. Leach, was employed by the Bombay branch of the company from 1933 until 1935. After his employment ended, the company closed its Bombay branch and subsequently wound up its Calcutta office. The business of the company was first taken over by Ewing and Company and later by the present defendants. Following his departure from Maitland Craig Lubricants Ltd., Mr. Leach began to work independently as a seller of lubricants and arranged to import the products through the defendants. On 6 June 1941 the parties executed an agreement, marked as Exhibit A, which granted Mr. Leach an exclusive right to sell lubricants bearing the Maitland Craig Lubricants Ltd. mark within the Bombay Presidency, the Central Provinces, Rajputana, and those parts of Central India and Hyderabad that the defendants might later designate. The agreement was intended to remain in force for a period of five years, unless it was terminated earlier in accordance with the provisions contained therein. Clause 14 of the agreement provided that, notwithstanding any earlier provisions, either party could terminate the contract by giving the other party three calendar months’ prior written notice, with the termination taking effect at any time thereafter but without prejudice to any rights or liabilities that had accrued before termination. Clause 16 further stipulated that the agreement was personal to the selling agent and could not be assigned or attempted to be assigned without the prior written consent of the defendants.

The agreement expressly provided that the selling agent could not assign or attempt to assign any of his rights under the contract unless he first obtained the defendants’ written consent. Both parties agreed that their commercial dealings continued to be governed by this agreement throughout the relevant period. On 18 March 1944 the first plaintiff, a joint‑stock company, was incorporated under the Indian Companies Act, and on 30 March 1944 the second plaintiff transferred his business to that newly formed company. On 13 June 1945 the defendants sent a notice to the second plaintiff stating that they were terminating the agency created by the agreement dated 6 June 1941 because he had assigned the agency to the first plaintiff without securing the written consent required by the contract. Prior to that notice, however, the defendants had placed orders in the United States for certain goods that the plaintiffs had required; those goods were actually delivered to the defendants after the agency had been cancelled. The plaintiffs then demanded that the defendants turn over the goods to them, but the defendants refused. Consequently, the plaintiffs instituted the present suit alleging conversion and seeking damages, contending that the goods were due to them under Government quotas numbered P.L. 1004 to 1007 and that the defendants, who had ordered the goods on the plaintiffs’ behalf, possessed no title to them. The plaintiffs further asserted that the defendants had acted as their agents in importing the goods. The defendants rejected these allegations, maintaining that they, not the plaintiffs, were the principals and that the second plaintiff was their agent; they asserted that title to the goods remained with the defendants and that a conversion claim could not be sustained. The trial judge, Shah J, held that the plaintiffs were not agents of the defendants, that the goods had been imported by the defendants on behalf of the plaintiffs, and that the defendants’ refusal to deliver the goods constituted conversion. He therefore entered a decree and referred the matter to the Commissioner for assessment of damages. On appeal, Chief Justice Chagla and Justice Gajendragadkar held that, according to the terms of the 6 June 1941 agreement, title to the imported goods vested in the defendants and would only pass to the plaintiffs upon the defendants’ endorsement of the shipping documents in the plaintiffs’ favour, which had not occurred. Accordingly, they concluded that the conversion claim was untenable, allowed the appeal and dismissed the suit. The appellants now argue that, based on the proven facts, they were entitled to damages for conversion. The law on this point is undisputed: before a plaintiff can maintain an action in trover, the plaintiff must demonstrate that it possessed title to the goods in question and that it was entitled to possession at the time it demanded delivery from the defendants.

The plaintiffs were required to demonstrate that they possessed the right to take possession of the goods at the moment they demanded delivery from the defendants. When the parties are regarded as seller and buyer with respect to the transactions, the plaintiffs must establish that ownership of the goods, which initially rested with the defendants, transferred to them in accordance with the provisions governing sale of goods. Conversely, if the defendants had imported the goods acting as agents for the plaintiffs, ownership would clearly belong to the plaintiffs, and the only issue would be whether the defendants were justified in retaining possession because they had paid the purchase price on the principal’s behalf and had not yet been reimbursed. That particular issue did not arise in the present case, because the defendants denied that the plaintiffs held title to the goods and the plaintiffs did not refuse to pay the price. Consequently, the essential question for the Court to resolve was the nature of the relationship between the parties concerning the transactions that gave rise to the suit. Both sides admitted that the governing instrument was the agreement identified as Exhibit A, and that the terms of that agreement must be examined to determine the true character of the parties’ relationship. It had already been noted that, under the agreement, Mr Leach was appointed as the selling agent of the defendants for certain territories specified therein. Exhibit A further required that the second plaintiff could not sell the goods below a stipulated minimum price and that the goods had to bear the mark “Maitland Craig Lubricants Ltd.” The usual practice under the agreement was that the second plaintiff would inform the defendants of his requirements; the defendants would then purchase the goods in their own names from the United States on a cost‑plus‑insurance‑freight basis. After the goods were imported, the defendants would set a selling price, endorse the shipping documents in favour of the second plaintiff, and allow the second plaintiff to clear the cargo at the port on payment of eighty per cent of the price, with the remaining twenty per cent due when the second plaintiff delivered the goods to his own customers. Sales made by the second plaintiff to his customers within the designated area were matters that concerned solely the second plaintiff and his purchasers, and the defendants had no involvement in those sales. Clause 6 of the agreement required the second plaintiff to keep the value of his stock fully insured against fire risk at all times. Clause 13 stated that “the relationship between parties hereto shall be that of principal and principal only and the selling agent shall have no authority whatsoever except such as may be conferred upon him in writing by the firm to transact any business in the name of the firm or to bind the firm by any contract, agreement or undertaking with or to any third party.” In contrast with these provisions, there was another clause that addressed a different aspect of the parties’ arrangement.

The Court explained that clause 4 of the agreement stipulated that the defendants themselves would supply all of the lubricants required by the Indian Stores Department within the area assigned to the second plaintiff, with the second plaintiff acting as their agent in clearing the goods and delivering them to the authorities, and that the second plaintiff would receive a commission for performing those functions. Accordingly, when the entire agreement was read as a whole, it was apparent that the contract comprised two separate matters. With respect to clause 4, the second plaintiff’s role was that of a mere agent of the defendants. By contrast, the remaining clauses, particularly clause 13, established a different relationship: the second plaintiff was to be regarded as a purchaser of the goods from the defendants. The stipulations concerning a minimum selling price and the requirement that the goods be marked with the name of Maitland Craig Lubricants Ltd. were intended solely to protect the commercial interests of the parties, and once the defendants endorsed the shipping documents in favour of the second plaintiff, ownership of the goods passed to the second plaintiff. The purpose of the insurance clause was clearly to protect the defendants’ interests with regard to the balance of the price that remained payable by the second plaintiff. The Court noted that the present dispute did not involve any goods consigned by the defendants for supply to the Government under clause 4; rather, it concerned goods imported by the defendants to satisfy the requirements of the plaintiffs. In respect of those goods, if the agreement governed their relationship, the parties were not agents of one another; the defendants were the sellers and the plaintiffs were the buyers. Consequently, title to the goods would have transferred to the plaintiffs only when the defendants effectuated that transfer, for example by endorsing the shipping documents, which they had not done. Therefore, a claim for damages on the basis of conversion was misplaced. The learned Solicitor‑General, appearing for the appellants, did not dispute the factual position set out in Exhibit A, but argued that the seller‑buyer relationship created by the agreement was altered when the Government introduced the licence system. That system, introduced in August and September 1941 during the war, was designed to regulate and control imports. Under the system, every importer was required to submit a statement of the extent of his import business in the preceding years, and on the basis of that statement a licence was issued allowing importation up to a specified limit. On 26 September 1941 the second plaintiff applied to the Controller for a licence to import lubricants, stating that he had been engaged in that business for seven years and providing details of his volume of trade. In November of that year the Government granted a licence to the second plaintiff. The defendants also applied for, and obtained, a licence to import lubricants based on the volume of their own business.

The licence that the defendants obtained did not cover the quantity of goods that they later sold to the second plaintiff, so the two licences could not be used together. Under that licence Mr Leach himself could have imported the goods directly from America, but he elected to continue importing through the defendants because the agreement referred to as Exhibit A required him to pay only eighty per cent of the price when the goods were cleared. A change in the nature of the transaction occurred with the introduction of the licence system. Earlier, before licences were required, the defendants purchased the goods from American companies on a cost‑insurance‑freight basis and then resold them to the second plaintiff at a price they fixed themselves. After the licence system was introduced, the amount payable to the defendants consisted only of the price they themselves had to pay the American sellers, to which a commission was added on the transaction.

The appellants argued that, because the defendants were the parties entitled to import the goods under the licence granted to them, the defendants acted on the appellants’ behalf when they imported the goods at the appellants’ request, and that the relationship established by Exhibit A had therefore changed from seller‑purchaser to agent‑principal. In response, Mr Banaji, counsel for the respondents, presented a two‑part answer. First, he maintained that when the second plaintiff applied for and obtained the licence in his own name, he was acting merely as an agent of the defendants. Second, he contended that this issue had not been raised in the plaint, and therefore the appellants could not rely on it.

To support his first point, counsel referred to the correspondence exchanged between the parties during the relevant period. On 5 September 1941 the defendants wrote to the second plaintiff asking him to provide details of certain shipments consigned to him so that those shipments could be included in the defendants’ licence application. A further letter dated 11 September 1941 instructed the second plaintiff that those particular goods were not to be included in his licence application. Nevertheless, the second plaintiff did not accept this instruction and incorporated the same shipments in his own licence application filed on 26 September 1941. The defendants did not contest this action further; instead, on 10 December 1941 they wrote to the second plaintiff to inform him of the number and date of his import licence and continued to import goods for him on the basis of that licence.

Respondents also relied on a letter dated 11 December 1941 in which the defendants advised the second plaintiff to join a group of oil merchants that was to be formed in Bombay, describing the advice as that given to a customer. The Court found this evidence to be inconclusive and too sparse to establish that the second plaintiff had obtained the licence as an agent of the defendants. Conversely, if the true position was that the second plaintiff was a purchaser of the goods, then the licence issued to him was in his own right and not as an agent of the defendants, a view that aligns with the earlier finding of Shah J. and has not been overturned on appeal.

In the case, the evidence identified a document labeled Ex A which established that the plaintiff was a purchaser of the goods in question. Consequently, the sales made by the plaintiff were treated as transactions of an owner, and the licence that had been issued to the plaintiff on the basis of those sales was therefore granted to him in his own capacity rather than in the capacity of an agent of the defendants. The Court noted that this finding concurred with the earlier observation of Shah J., a finding that had not been overturned on appeal, and the Court expressed agreement with that earlier decision. The respondents then argued that the whole plaint was premised on the assumption that the parties’ rights were governed by Ex A, that the plaint made no claim that the agreement captured in Ex A had ever been cancelled or altered, and that no new agreement had been substituted after the licence system was introduced. They further pointed to the testimony of Mr Leach, placed in the evidence box, which indicated that Ex A remained in force throughout the relevant period. From those submissions the respondents concluded that the appellants could not now claim that the relationship of seller and purchaser described in Ex A had been transformed into an agency relationship of principal and agent.

The Court accepted that the plaint indeed proceeded on the basis that Ex A was still operative and that the plaint contained no allegation that the agreement had been modified. Nevertheless, the Court observed that Ex A had not been wholly set aside; it continued to govern certain aspects of the parties’ relationship, for example the terms relating to the delivery of goods upon payment of eighty percent of the price. The plaint also made reference to the introduction of the licence system, and the Court recognised that the defendants were fully aware of the factual situation that arose under that system, just as the plaintiffs were, so that there could be no claim of surprise on the part of the defendants. In view of these circumstances, the Court stated that even if the parties’ rights were to be determined according to the licence system, it would have been reluctant to dismiss the appellants merely because the effect of that system had not been expressly articulated in the plaint.

Subsequently, the licence system itself ceased to operate in the months of March and April 1942 and was replaced by a programme known as the “Lease and Lend” scheme. The Court explained that the goods forming the subject‑matter of the present litigation had been imported under that scheme, and therefore it was necessary to assess the parties’ rights by reference both to the provisions of the Lease and Lend scheme and to the continuing operation of Ex A, which the appellants had admitted remained in force. The Lease and Lend scheme had been introduced by the Government of India as a wartime measure intended to facilitate the import of essential commodities and to conserve them for the effective prosecution of the war. Among the items controlled by the scheme were oil and lubricants. The scheme prohibited the direct import of oil and lubricants from America through private agencies, whether individuals, firms or companies, and placed the responsibility for importing the required quantities on the Government itself. In order to coordinate the importation process, an association of importers and dealers in Calcutta called the Central Lubricants Advisory Committee (C.L.A.C.) was formed, and importers were instructed to submit their requirements to this committee.

In the scheme that had been introduced, importers were required to inform a private body called the Central Lubricants Advisory Committee of the quantity of oil and lubricants they needed. This Committee acted only as an intermediary, passing the importers’ requirements to the Government, which then arranged for purchase and shipment of the goods from America. A similar body, the Bombay Lubricants Advisory Committee, performed the same function for dealers in Bombay. Under the procedure, after the Committee transmitted the needs to the Government, the Government’s authorities instructed the dealers to make cash deposits covering the price of the goods to be imported. The Government’s purchasing agent in America bought the required quantities and organised their trans‑shipment to the specific Indian destinations named by the dealers. Shipping documents were issued in the name of the Government; once the Government received payment of the bills, it endorsed those documents to the importer for clearance at the harbour. Consequently, the Government was the legal importer, and the dealers obtained title to the goods only when the Government endorsed the documents to them.

With respect to the plaintiffs, the factual record shows that they did not make any cash deposits with the Government, nor were they listed among the traders for whom the Government imported goods. Their only dealings were directly with the defendants. The defendants, in their applications to the Government, included both their own requirements and those of the plaintiffs and made the necessary deposits on behalf of all of the goods. However, the Government recognised only the defendants as the importers and therefore issued the shipping documents in the defendants’ names. Title to the goods could pass to the plaintiffs only if the defendants subsequently endorsed the documents to them. The plaintiff‑turner, Mr Leach, testified that such endorsement had not taken place for the consignments that formed the subject of the suit. He stated that the goods were shipped to the order of the Government of India, that separate documents were prepared for each trader based on the requirements submitted, and that the traders who submitted requirements cleared the goods by paying the bills. He further declared that the Government made no allocation of the goods to him; he relied entirely on the defendants to obtain his requirements from the Government and that he made no cash deposit as required of a dealer. The entire deposit for his required quantity was made by the defendants, who purportedly endorsed the documents in his favour, but he could produce only the admitted portions; the documents for the remaining parcels (P.L. 1004 to 1007) were never handed over or endorsed to him, except where goods had actually been delivered.

The evidence presented by Sir John Burder on behalf of the defendants confirmed that the shipping documents for the consignments in question had been received in the name of the defendants. Therefore, it was clearly established that, regarding the goods covered by P.L. 1004 to 1007, the shipping documents were not made out in the plaintiffs’ names, nor had the defendants, in whose names the documents were issued, endorsed them to the plaintiffs. Consequently, unless the plaintiffs could demonstrate that the defendants acted as their agents in importing the goods, the plaintiffs had not obtained title to the shipments.

In the testimony, the dealer stated that he had made no deposit with the Government for the quantity he required, and that the whole deposit for his needs had been paid by the defendants. He further affirmed that the defendants had endorsed the shipping documents in his favour for the goods that were intended for him. However, with the exception of the portions that were admitted, the documents relating to the remaining parts of purchase orders numbered 1004 to 1007 had neither been handed over to him nor endorsed in his favour, except to the extent that the goods had actually been delivered. The evidence presented by Sir John Burder on behalf of the defendants indicated that the shipping documents had been received in the name of the defendants. Consequently, it was clearly established that, concerning the goods covered by purchase orders 1004 to 1007 – the very subject‑matter of the suit – the shipping documents had not been made out in the name of the plaintiffs, nor had the defendants, whose names appeared on those documents, endorsed them to the plaintiffs. Since the plaintiffs had not demonstrated that the defendants were acting as their agents in importing the goods, the plaintiffs did not acquire title to those goods, and the claim for damages on the basis of conversion could not succeed. The appellants relied on certain letters written by the defendants to argue that the defendants recognised the plaintiffs as having title to the goods. One such letter, dated 12 August 1944, stated: “We confirm that the consignment is for you.” Another, dated 24 March 1945, declared: “We enclose herewith a statement showing quantities and grades that have been ordered by Government on your account against order P.L. 1006/10.” Nonetheless, these statements were consistent with a situation in which the defendants were sellers who had ordered the goods at the request of the plaintiffs, and they did not imply that title to the goods had passed to the plaintiffs – a transfer that could occur only after the goods came into existence and were appropriated. That transfer never happened, and the shipping documents remained in the name of the defendants. Accordingly, the Court agreed with the learned judges that, based on the pleadings and the evidence, the conversion claim must fail, warranting the dismissal of the appeal. The plaintiffs subsequently applied to the Court for permission to amend the plaint, alternatively seeking damages for breach of contract due to non‑delivery of the goods. The respondents opposed the amendment, arguing that it introduced a new cause of action that might now be barred by limitation, that the plaintiffs had ample opportunity to amend earlier but failed to do so, and that the passage of time would cause serious prejudice to the defendants if the new claim were allowed. While the objections were noted as having considerable force, after giving them due weight the Court expressed the opinion that this is

In this case the Court observed that the amendment sought by the plaintiffs ought to be permitted. The plaintiffs do not rely on any claim for damages arising from the alleged wrongful termination of the agreement referred to as Exhibit A by the notice dated June 13, 1945. Their claim is limited to damages for the non‑delivery of goods that were ordered by the plaintiffs and accepted by the defendants before that notice terminated the agreement. Clause 14 of the agreement expressly preserves to the plaintiffs the right to claim such damages. Because the suit is founded on Exhibit A, a claim based on Clause 14 cannot be said to fall outside the scope of the suit. Schedule E annexed to the plaint lists the various indents for which the defendants had defaulted by refusing to deliver the goods, and the same schedule sets out the damages claimed. By amending the plaint the plaintiffs seek only to claim damages for those particular consignments. The prayer in the original plaint is already expressed in general terms as a claim for damages, and therefore all the essential allegations required to sustain a claim for breach of contract are already present. What is missing is merely an alternative allegation that the plaintiffs are entitled, under Clause 14, to recover damages for the defendants’ failure to deliver the goods. It is true that courts as a rule decline to allow amendments when the amended claim would be barred by the limitation period as of the date of the application. However, that consideration is only one factor in the discretion to grant amendment and does not deprive the court of the power to order it when justice so requires. The Privy Council in Charan Das v. Amir Khan (1) observed that the power to amend cannot be disputed and, although it should not ordinarily be exercised where it would remove a legal right that has accrued to a defendant by lapse of time, there are cases where special circumstances outweigh that consideration. The decision also refers to Kisan Das v. Rachappa. In the present matter, besides the contents already set out in the plaint, the record shows that the defendants cancelled the contract without strictly complying with the terms of Clause 14. Their alleged ground for repudiation was that the second plaintiff had assigned his interests to the first plaintiff; yet subsequent transactions indicate that the defendants continued to conduct business with both plaintiffs, suggesting that the cancellation was a mere device to deprive the plaintiffs of the benefits of the orders they had placed. Accordingly the Court is of the opinion that the interests of justice demand that the amendment be granted, and the plaintiffs will be permitted to amend the plaint as proposed.

The Court noted that the plaintiffs sought to amend the plaint in the alternative and without prejudice to a claim based on conversion, asserting that the facts disclosed established a contract whereby the defendants had undertaken to supply and deliver to the plaintiffs, or to either of them, the goods ordered by the Government on the plaintiffs’ account and included in quotas PL 1004‑PL 1007. The Court recorded that the goods arrived in Bombay, but the defendants failed and neglected to deliver them despite repeated demands and, in fact, repudiated their obligation to deliver. The plaintiffs affirmed that they were always ready and willing to pay for and to take delivery of the goods. The Court further observed that the defendants, at all material times, were fully aware that the plaintiffs had purchased the goods for resale and for the performance of their own contracts of sale and supply. Accordingly, the plaintiffs claimed damages as detailed in the particulars.

The Court held that the appeal must be allowed and that the decree under appeal be set aside. The suit was to be remanded for rehearing before the trial court. The defendants were directed to file their written statement to the amended claim, and the suit was to be tried and disposed of in accordance with law. Concerning costs, the Court ruled that, because the plaintiffs were receiving an indulgence, they should pay the defendants’ costs both in the suit and in the appeal to the Bombay High Court. Regarding the costs of this appeal, since the defendants had persisted in contending that the plaintiffs acted solely as their agents—a contention that, if upheld, would have provided a conclusive answer to the amended claim—the Court directed each party to bear its own costs in this Court. The appeal was allowed and the case remanded.