1. 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 their suit and plaintiffs appeal.
2. AChetty firm contracted with a Mudali firm to supply the Mudali firm with twenty-five bales of yarn (Exs. 'A and A-1). On 24th October, 1918, the Mudali firm wrote Ex. 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 O.S. 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. Then on 9th December, 1919, the Mudali firm wrote Ex. D to the Chetty's firm that under the previous contract they were still bound to supply them with 111/2. bales, and if these were not supplied within two days, they would file a suit. Hence the present suit brought by the Mudali firm, the plaintiffs-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 (1873) 7 Ex in. There it is laid down, at page 112, that if one party to a contract repudiate it, the promisee 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 O.S. No. 27 of 1919. But relying upon a passage in the plaint of that suit the appellants would have it that the Chetties 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 (1872) 7 EX 111 is a recognised authority prescribing the remedies open to a promisee, 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 re-opened a new contract by their nth paragraph. This plea can have no force unless the Mudali firm can show its acceptance of this fresh tender, and so far from accepting it, that firm in its written statement utterly repudiated the nth paragraph as false (Ex. III, paragraph II). 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 Company v. Ivory Tannery Company (1919) 1 KB 78. 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 he justified in regarding himself to be emancipated. ' Halsbury's Laws of England, Vol. VII, paragraph 865.
6. For the above reasons the appeal is dismissed with costs.