Venkatasubba Rao, J.
1. These cases raise a question as regards what is known as ' an anticipatory breach of contract' but what may be more accurately described as repudiation by an anticipatory refusal to perform it. The suits relate to two contracts, which were originally entered into by the defendants with one Rajayya by which they agreed to deliver to him a certain number of groundnut bags. Under the first contract, the delivery was to be on 28th February 1931 and under the second on 31st March 1931. These contracts were assigned by Rajayya to the plaintiff, who gave intimation of that fact to the defendants by his letter dated 14th February 1931. (Ex. E). The defendants on 23rd February sent a reply (Ex. F) stating that the contracts had been terminated by virtue of certain arrangements which they had entered into with Rajayya. The lower Court has found that this-allegation of the defendants is false and the correctness of this finding has not been attacked. The result then is that the letter of 23rd amounts to a repudiation of the contracts by the defendants There being thus a repudiation by the defendants by an anticipatory refusal to perform the contracts before the time for performance arrived, two courses were open to the plaintiff under Section 60, Sales of Goods Act, 1930, namely, either to treat the contracts as subsisting or to treat them as rescinded. The plaintiff elected to treat the repudiation as inoperative and treat the contracts as still in force. In such a case it has been held that the promisee keeps the contract alive for the benefit of the other party as well as his own; in other words, he keeps the contract alive for all purposes. Forst v. Knight (1872) 7 Ex 111. 'He remains subject' as Cockburn, C.J., observes in the case just cited:
to all his own obligations and liabilities under it and enables the other party not only to complete the contract, if so advised, notwithstanding his previous repudiation of it, but also to take advantage of any supervening circumstance, which would justify him in declining to accept it.
2. To the same effect is the observation of Lord Wright who delivered the judgment of the Judicial Committee in Florrie Edridge v. V. Rustomji Dhanjibhoy Sethram 1933 PC 233.
A wrongful repudiation of a contract by one-party does not of itself absolve the other party if he sues on the contract from establishing his-right to recover by proving performance by him of conditions precedent.
3. The plaintiff is therefore bound to show that he has fulfilled the condition precedent which was binding upon him; if he is unable to show that the defendants will be discharged. That leads me to a consideration of the terms of the contract. There is a term which,, judging by the language used by the-parties, they regarded as important, and it is to the following effect: the buyer should mention to the seller at least six. days before the date fixed for the deli-' very the name of that particular firm (out of certain firms named in the contract) to whom the goods were to be delivered; this is described in the contracts as sending 'transfer froms for delivery.'
4. That this term constitutes a condition precedent, there can be no question; the only point being: Did the plaintiff perform that condition? The lower Court taking a wrong view of the law, has held, that the repudiation by the defendants has released the plaintiff from his own obligations under the contracts. In that view, it has not properly dealt with the question whether or not the plaintiff fulfilled the condition precedent binding upon him although it was disposed to think that the plaintiff did not fulfil that condition, As the learned Judge took a view on the question of law favourable to the plaintiff, he evidently did not think it necessary to discuss the question of fact. I have therefore gone through the evidence carefully with a view to determine whether or not there was a performance by the plaintiff of the condition precedent.
5. The evidence of P.W. 3 that he on behalf of the plaintiff tendered the transfer form to the defendants on 21st February, receives support from two documents, namely, Ex. G-1 (the plaintiffs telegram dated 25th February) and Ex. J his letter dated 28th February). I therefore find on the evidence that the plaintiff performed the condition precedent binding upon him. It follows that so far as the first contract is concerned, the plaintiff has made out his right to recover damages. The lower Court's decision in S.C.S. No. 128 of 1931 is accordingly upheld. and the Civil Revision Petition No. 246 of 1932 is dismissed with costs. A3 regards the second contract, on the plaintiff's admission that no transfer form was tendered, I must hold that, as he has failed to perform the condition precedent, he cannot recover damages. There is no question of waiver raised in the case and I cannot allow Mr. Somayya for the plaintiff to raise it for the first time now. In the result, I must, setting aside the lower Court's decree dismiss the plaintiffs suit and allow Civil Revision Petition No. 245 of 1932; but the defendants having put forward a false defence, I deprive them of costs throughout.