1. This is a second appeal from the decree in A.S. No. 282 of 1921, on the file of the Subordinate Judge of Chittor, 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. A Chetti 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. If cancelling the contract because the supply had been irregular. The Chetti 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 Chittor. 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 Chettis that under the previous contract they were still bound to supply them with 11 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 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 26 L.T. 77 : 20 W.R. 471. There it is laid down at page 112 Page of (1872) 7 Ex.--[Ed.], that if one party to a contract repudiates 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 Chetti 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 Avould have it that the Chettis availed themselves of both alternatives. They sued upon the breach of the contract, and in the same breath kept it open, because in para, 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 : 26 L.T. 77 : 20 W.R. 471 is 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 Chetti firm closed the first portion of the contract, but re-opened a new contract by their 11th para. 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 11th para, as false (Ex. III, para. 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 para. 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 of Pearl Mill Co. v. Ivy Tannery Co. 24 Com. Cas. 169. 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's Laws of England, Vol. VII, para. 865.
6. For the above reasons the appeal is dismissed with costs.