Lord Atkinson. -

This is an appeal from decrees of the High Court of Judicature at Lahore dated 5th January 1925, which reversed the decree of the Senior Subordinate Judge of Delhi, dated 14th January 1924, and dismissed the suit of the plaintiff with costs.

The suit out of which this appeal has arisen was one claiming damages for the non delivery by the respondents of certain goods which the latter had agreed to sell and the appellants had agreed to purchase.

The principal question for decision in the appeal is whether under the circumstances proved in the case the plaintiffs are entitled to recover damages from the respondents for the alleged breach of their contract for the sale and delivery of the aforesaid goods.

In the order of Court of the Subordinate Judge of Delhi, dated 9th August 1921, it is stated that the respondents (the defendants) had presented for the second time an application to be at liberty to add a plea that the plaintiffs were not ready or willing to perform their part of the contract entered into between the parties, and apropos of this application the Court said :

The real question in dispute is whether, in face of the correspondence, could the plaintiff claim damages and could ho consider the contract as subsisting. These points ace covered by the issues already framed by me. If I find that the contract was cancelled and the plaintiff could not claim damages, the point as to readiness and willingness would not arise.

If it is held by me that the contract subsisted, the question, as to readiness and willingness, would not crop up. We have got letters sent by the defendant that he considered the contract as cancelled, and if I hold that he was not justified in considering the contract as cancelled, had no locus standi to raise the plea as to the want of readiness and willingness on the part of the plaintiff.

The material parts of the aforesaid contract, which was dated 29th November 1916, and is very lengthy, ran as follows :

We had purchased one hundred and fifty (150) cases of white shirting marked D-1 May to November i. e., seven shipments, of the office of R. J. Wood, at 20s. 2d. We have sold the same to you at a net profit of Re. 0-4-0 per piece. The patterns and the invoices of the goods will be given to you on receipt. You shall have to take delivery of the goods on payment of their price to the bank. You shall have to remove the goods on compliance with the condition of the office of B. J. Wood. You shall have to pay interest and godown rent according to the terms of the office of R. J. Wood. Besides, you shall have to bear all the expenses incurred. The goods shall be fresh.

Contract made on Mangsir Sudi 5, Sambat 1973, through Moti Ram-Ram Kishan, Brokers, (Sd.) Mul Chand Ram Bhagat.

Contract in respect of 140 (one hundred and forty) cases confirmed.

It is common ground that a case marked "D-1" means a tin-lined case containing 50 pieces of Messrs. R. J. Wood and Co.'s shirting, manufactured in England, and the goods, the subject of the said contract, were sold by Messrs. R. J. Wood and Co. to the respondents, and were to be as so packed for export.

The plaint is verified by the appellants. In its sixteenth paragraph it is alleged, and apparently not disputed by the respondents, that the shipment of the portion of the goods which should have arrived in India in the months of May and June 1917 did not arrive till the month of March 1918. The shipments which should have been made in July and August 1917 did not arrive till June 1918 and those of September, October and November 1917 did not arrive till July 1918.

On 24th April 1917 (i. e., after the date of the said contract, but before the first shipment thereunder), an Order in Council was issued in London prohibiting the export of cotton goods in tin and wooden cases to India, and this was followed by a similar prohibition by the Government of India.

On 28th April 1917 the importers, Messrs. R. J. Wood and Co., wrote to the respondents as follows :

As the British Government prohibited the use of wood and tin cases, kindly note that all your goods on order will come out packed in bales instead of cases until such prohibition is withdrawn; if we do not hear from you within three days we shall understand you agree to this. If not kindly instruct us how to send the goods out.

On the same day the respondents wrote to the appellants a letter to the following effect:

Dear Sirs,

As the British Government have prohibited the use of wood and tin oases, kindly note that all your goods on order will come out packed in bales in place of cases unless such prohibition is withdrawn. If we do not hear from you within three days we shall understand you agree to this. If not, kindly instruct us how to send the goods out.

On 1st May 1917, the respondents wrote to the appellants a letter in the following terms:

We are in receipt of your favour of date, and in reply have to say that, having sold Messrs. R. J, Wood's goods to different parties, we cannot confirm the letter by sending it to you. If you are so very anxious to see the letter, you are quite welcome to come and see it at our shop. We have already sent you a copy of this letter, and if you will not come to our shop to satisfy yourself, please note we shall not be responsible. Please further note that, if we will not hear from you definitely in the matter within the allotted time, you will be responsible for all consequences.

In reply to this letter the appellants on the same day wrote to the respondents a letter running thus:

Dear Sirs,

With reference to your letter, we beg to inform you that we do not agree to take the goods sold by you to us in bales instead of cases. Hence we cancel the goods which please note.

"Cancel the goods" is not an accurate expression, and in this connexion must mean cancel the contract entitling us to receive the goods.

To this letter the respondents on 2nd May replied in the following terms:

Dear Sirs,

We are in receipt of your letter dated 1st May 1917, and in reply have to say that we sold you goods as per Messrs. H. J. Wood's terms, and as that office is going to ship goods in bales instead of cases, you are bound to abide with these terms and accept goods in bales. Please note that you are not bound to cancel the goods, and you will have to accept goods in bales as required by Messrs. R. J. Wood.

On 4th May 1917, the appellants again wrote to the respondents thus:

Dear Sirs,

In reply to your letter of the 1st May, we beg to tell you that we.....have cancelled the goods, and we again inform you. Please note.

On 4th May the appellants replied in the following terms to the respondents' letter of 2nd May (which they must have received on the 3rd of that month). Their letter runs thus:

In reply to your letter of 3rd May, we cannot accept the goods in bales instead of cases and tins. Please consider them as cancelled. Please note, once for all, as our dealers do not agree, we cannot accept.

On 8th May the appellants again wrote to the respondents a letter in the following terms:

Dear Sirs,

Re our previous correspondence, we beg to tell you that we have cancelled all goods ordered through you, and we will not take at any stake, and also note we have reason and authority to cancel, and hence we will not at all be responsible for the delivery, which please note.

The appellants could not have been more emphatic in repudiating any obligation to accept bales and refusing to be bound by or to perform it. If delivery of the shirting, packed in bales, was in conformity with the contract, the appellants clearly declared that they would not accept them, and this was acquiesced in by the respondents.

No evidence was given establishing that the goods purchased by the appellants could not have been safely shipped and carried to their destination, though packed in bales instead of in wooden boxes lined with tin. The lower Court was of opinion that packing in these cases was not part of the description of the goods sold. The High Court, on the contrary, expressed the opinion, grounded on the authority of the cases of Bower v. Shand [1877] 2 A. C. 455 and the case of In re Moore and Co. v. Landauer and Co. [1921] 2 K. B. 519, that the packing of the goods in such cases was part of the description of them. Having regard to the conclusion at which their Lordships have arrived on other portions of the case, it is unnecessary to deal with this point at length or to express any definite opinion upon it.

Section 39, Contract Act, runs thus:

When a party to an agreement enforceable by law has refused to perform or disabled himself from performing an accepted proposal in its entirety, the person accepting the proposal may put an end to the agreement enforceable by law unless he has signified by words or conduct his acquiescence in its continuance.

Section 63 runs thus :

Every person who accepts a proposal may dispense with or remit wholly or in part the performance of the proposal made to him which he has accepted, or he may extend the time for such performance or may accept instead of it any satisfaction which he thinks fit.

The contentions raised on these sections were as follows: The respondents, relying on Ss. 39 and 63, said that the appellants had put an end to the agreement and had expressly dispensed them from delivery at all. The appellants contended that S. 63 applied only where there was an agreement to dispense or a contract, supported by consideration, to do so, and that in any case it could only operate, when the party dispensing had performed his part of the contract and only something remained to be performed on the other side unless dispensed with: Abaci Sitar am Modal v. Tribal Municipality [1904] 28 Boom. 66 : 5 Boom. L.R. 689. They further said that, if they had been wrong in refusing in advance to accept bales, this repudiation had not been accepted by the respondents, and therefore the contract remained alive and ought to have been performed. It is evident that the alleged dispensation under S. 63 is by itself a complete answer, unless the absence of contract or consideration is fatal, for the appellants again and again dispensed with the performance by the respondents of their promise to deliver the goods contracted for, and they cannot recover damages for the breach of a promise touching the performance of a thing they wholly dispense with.

In Abaci Sitar am Modal v. Tribal Municipality [1904] 28 Boom. 66 : 5 Boom. L.R. 689, Chief Justice Jenkins deals with S. 63, and holds that the promise mentioned in S. 63 can only do the acts he is by that section empowered to do, if there be an agreement [as defined by 2 (e) ] amongst the parties to that effect. At p. 72 of the report of this case the learned Judge is reported to have expressed himself thus:

Therefore we hold that, assuming that there was a legal resolution, and that it was communicated as alleged, still, inasmuch as a dispensation or remission under S. 68 requires an agreement or contract, the resolution was of no legal effect since the provisions of S. 30, Bombay Act 2, 1884, have not been observed.

With this their Lordships are unable to agree. The language of the section does not refer to any such agreement and ought not to be enlarged by any implication of English doctrines. On this they agree with the learned Judges of the High Court.

They are, therefore, of opinion that the appeal fails and should be dismissed with costs. They will humbly advise His Majesty accordingly. *

* The relevant portion of the judgment of the Lahore High Court in F. A. 621 of 1924, decided on 5th January 1925 by Harrison and Campbell, JJ., is as follows : "The third defence is that the plaintiff had dispensed with and remitted the performance of the promise, and for this reason also the defendant was absolved from delivering the goods. The position is similar, but not the same as that taken up under S. 39, for whereas S. 39 is an enabling section which entitles the promise to take action on an anticipatory breach, S. 63 creates a defence for him as defendant if the other side, after remitting the performance, subsequently tries to enforce it. Counsel urges that in spite of the fact that this section comes under the heading of ''contracts which need not be performed,'' it has no applicability to any case of contract where there are reciprocal promise. He defines his position by saying that the section applies only to unilateral promises enforceable under the Contract Act without any obligation on the other side but can give no instance of such a unilateral promise except a debt as described in Ills. (b) (c) (d) and (e) and he can give no reason for supposing that these debts were without consideration, nor explain how they would be enforceable at all under the contract or any other act if they were. He contends that 111, (a) refers to a case where there was no sort of contract and no consideration. He ignores the wording of this illustration which is "A premises to paint a picture for B" and not "A promises to paint a picture of B" and states that before such a remission can have any effect it must be definitely accepted by the other side, relying on the view taken in Abaci Sitaram Module v. Tribal Municipality [1904] 28 Boom. 66 : 5 Boom. L.R. 689. With all respects to the learned Judges who gave that decision, we find ourselves wholly unable to accept the view therein expressed.

The section is a clear departure from the English law on the subject and if we may say so, a very wise departure and specially suited to the conditions of this country. It is clear that the section is not to be used by a plaintiff as creating a cause of action and that it does not entitle the remitter to improve his own position and to enlarge time or to make a remission to the detriment of the other eider, but whether the remission be accepted in so many words or not, it creates a plea which a defendant can always urge to meet an action. It does not contradict or vary the provisions of S. 39 by dispensing with action by the other side before the institution of a suit. The remittance can never, by itself, entitle a party to sue, but it does afford a protective plea and enables a defendant to meet a suit instituted by the remitter. Many authorities have been quoted to us, but these all deal with the converse proposition when a man tries to take advantage of a remittance or extension of time given by himself to improve his position and to prove that this unilateral act has borne fruit to his advantage. This of course can never be allowed, but the section does empower a defendant to take advantage of a concession made by the plaintiff and to plead that he could not be expected to do what he had been definitely told he need not do, and that he is absolved. He need not prove consideration for the absolution and this is, in our opinion, made as clear as day by the wording of the illustrations. * * *

Suit dismissed.

Appeal dismissed.