This is a Second Appeal from the decree in A. S. No. 282 of 1921 on the file of the Subordinate Judge of Chittoor preferred against the decree in O. S. No. 55 of 1920 on the file of the Court of the District Munsif of Sholinghur. Both the lower Courts have dismissed the suit and plaintiffs appeal.
2. A Chetty firm contracted with a Mudaly firm to supply the Mudaly firm with 25 bales of yarn, Ex. A and A1. On 24th October 1918, the Mudaly firm wrote Exhibit II cancelling the contract because the supply had been irregular. The Chetty firm not accepting this cancellation gave notice of suit and in due course filed original suit No. 27 of 1919 in the Court of the District Munsif of Chittoor. The matter was referred to arbitration and apparently settled by award but the award is not in evidence. On the 9th December 1919, the Mudaly firm wrote Exhibit. D to the Chettys that under the previous contract they were still bound to supply them with 11½ bales, and if these were not supplied within two days they would file a suit. Hence the present suit brought by the Mudaly firm, the plaintiffs and appellants.
3. The point taken in this appeal is that the contract was never cancelled and the appellants rely for this position upon Frost v. Knight(1), where there it is laid down at page 122, that if one party to a contract repudiate it, the promissee may treat the repudiation as inoperative, and at the end of the period of the contract, treat the other party as responsible for all the consequences of non-performance, thereby, keeping the contract alive, or on the other hand, he may treat the repudiation as a wrongful putting an end to the contract, and may at once bring his action as on a breach of it. The Chetty firm evidently adopted the latter alternative when it brought original suit No. 27 of 1919. But relying upon a passage in the plaint of that suit, the appellants would have it that the Chettys availed themselves of both alternatives. They sued upon the breach of the contract; and in the same breath kept it open, because, in paragraph 11 of their plaint, there is a statement that they were still entitled to deliver the rest of the bales. The short answer to this is that they had no right to make any such reservation. Frost v. Knight, is recognised authority prescribing the remedies open to a promissee and he cannot both sue upon the breach and also keep the contract open.
4. The appellants then proceed to argue that if so much must be conceded the Chetty firm closed the first portion of the contract, but reopened a new contract by their 11th paragraph. This plea can have no force unless the Mudaly firm can show its acceptance of this fresh tender, and so far from accepting it, that firm in its written statement utterly repudiated the 11th paragraph as false (Ex. III paragraph 11). Therefore, there was no fresh contract between the parties.
5. Apart from contesting this plea of the plaintiffs, the respondents have a good case as set forth in paragraph 8 of their written statement by way of waiver and estoppel. A party cannot repudiate a contract, wait a year and then suddenly insist upon its performance. The question turns upon whether his conduct gives rise to an implication of abandonment Cf. Pearl Mill Co. v. Ivry Tannery Co.. Delay coupled with repudiation does give rise to such an implication.
“Where one party by acts and conduct evinces an intention no longer to be bound by the contract, the other party will be justified in regarding himself to be emancipated.” Halsbury Laws of England Vol. VII Para 865.
6. For the above reasons the appeal is dismissed with costs.
C. K.Appeal dismissed.