Charles Arnold White, C.J.
1. I agree with the learned Judge that the plaintiff failed to prove the agreement with reference to commission on which he relied, but I find myself unable to agree with him with reference to the date on which the partnership must be deemed to have come to an end. The plaintiff's case is that the partnership came to an end in September 1908. The defendant's case is that it continued till May 1909. The learned Judge held that the partnership continued until May 1909 and directed that the partnership accounts should be taken up to that date. The partnership was admittedly a partnership-at-will and consequently Section 253 of the Indian Contract Act, which provides that any partner may retire from such a partnership at any time, is applicable. The Judge found that the defendant decided to retire from the partnership in September 1908. His finding is in these words: 'he'--that is the plaintiff--'has given evidence--uncontradicted evidence--which does point, no doubt, to the defendant having decided to retire from the partnership at the date which the plaintiff gives.' 'He'--that is the plaintiff--showed that a certain firm, dealing with the partnership after that, dealt with him'--that is the defendant--'personally and he'--that is the plaintiff--'has given the evidence also of one of the working partners that the partnership accounts were all made up to that date'--this, I take it, means that the partnership accounts were closed on that date, that date being September 1908. The learned Judge goes on: The book in which they were made up is not itself translated; still it seems to me that on the evidence as it stands he'--that is the plaintiff--'has failed, having regard to his own admission, to prove any dissolution of partnership at that date owing to the absence of notice'. The finding of the learned Judge is that by reason of the plaintiff having admitted that he did not receive notice of the defendant's intention to retire, he (the plaintiff) had failed to prove dissolution of partnership as from the earlier date. The learned Judge goes on: But the defendant's written statement says that the partnership was dissolved at a slightly later date and I think that must be taken as an admission and the dissolution must be taken to have taken place at the date mentioned in the written statement'. I do not quite understand how the statement in the written statement can be treated as an admission. It is a statement in his pleading by the defendant of the case on which he relies, namely, that, notwithstanding the fact that he had, as found, intended to retire in September 1908, the dissolution did not in fact take place until the later date. It seems to me that the plaintiff might well have relied on the non-receipt of any notice from the defendant for the purpose of enabling him to say: You sent me no notice of your retirement in September, 1908, therefore, I will not accept that date as the date of your retirement'. But I do not understand how the fact that the plaintiff did not receive notice of the defendant's retirement precludes him from setting up the case that the partnership came to an end when the defendant, as found by the Judge, intended to retire. In. other words, it seems to me that although the plaintiff would have been entitled to. rely on the absence of notice ha is not precluded from waiving notice and saying: Though I did not know at the time you intended to retire from the partnership, I know it now and I elect to treat the partnership as at an end from the time when you purported to determine it.' It was contended on behalf of the defendant that there was evidence that the partnership business was in fact carried on after September 1908. There is no evidence of any dealings by the firm with third parties. Certain post cards, however, written by the plaintiff, were relied on as showing that the partnership business was in fact carried on after September 1908. One of these post cards is dated January 1909 and would seem to have been written by the plaintiff from Madras to the firm at Vellore on the assumption that the firm was still carrying on the partnership business. The plaintiff in his evidence, however, explained that when he sent this post card he did not know that the partnership business had been stopped in September. I do not think there is any evidence that the business was carried on as a partnership business after September 1908. Accordingly I think the decree of the learned Judge should be amended by directing that the partnership do stand dissolved as from September 3rd, 1908, and not as from May 1909. I would make no order as to the costs of this appeal.
2. I concur.