1. In this case, the plaintiff brought the suit for damages for the refusal on the part of the defendant to deliver to him certain quantity of rape seed cake. The contract between the parties was as follows : The appellant was the buyer and the respondent was the seller. The contract was 300 tons of rape seed cake at a certain price per maund; terms cash on delivery-Delivery-January and February 1927.
2. Now, the first thing to observe is that it is now agreed on all hands that the meaning of the stipulation for delivery was that one-half of the goods, namely 150 tons, should be delivered in January and the balance in February. The defendant was ready and willing to deliver 150 tons in January, but the plaintiff was not ready and willing to take delivery or to make payment therefor. So far, therefore, as we are concerned with case, it is a case where at the end of January one-half of the contract was unperformed. Thereupon, the defendant wrote to say that 150 tons being ready for delivery and not being taken, the contract would stand cancelled. The plaintiff thereafter made a tender of the money and demanded the 150 tons that would be duo in February. The defendant persisted in treating the contract as at an end and the learned Judge in this case has applied the principle of Honck v. Midler  7 Q.B.D. 92 and has dismissed the suit.
3. Mr. S.N. Banerji for the appellant contends that Honck v. Mutter has been wrongly decided and that the principle upon which it proceeds is no longer the law. He has cited to us several cases; but he relies chiefly upon the case of the Mersey Steel & Iron Co. Ltd. v. Naylor, Benzon & Co.  9 A.C. 434 and he founds also upon the judgment of Blackburn, J., in the case of Simpson v. Crippin  42 L.J.Q.B. 28. He contends that Honck v. Muller  7 Q.B.D. 92 and Hoare v. Rennie  5 H. & N. 19 have in the view taken in the subsequent cases been slow to have proceeded upon grounds which are untenable.
4. It appears to me that the correct decision of this matter involves a construction of the contract and, in my opinion, this contract for 300 tons with an arrangement as regards delivery that the deliveries are to be in equal quantities in January and in February. I entirely decline to say that this particular contract is or is the equivalent of two separate contracts. In my judgment, the observations which the Lord Chancellor made in the case of The Mersey Steel and Iron Co. Ltd. v. Naylor Benzon & Co.  9 A.C. 434 with reference to the contract there under construction, apply to this case:
There are subsidiary terms in the contract as to the time of delivery and as to the time of payment, but that does not split up the contract into as many contracts as there shall be deliveries for the purpose of so many distinct quantities of iron.
5. That being so, what we find is that the buyer refused to take delivery within the stipulated time of no less than one-half of the total contract quantity. He claimed, therefore, being in that position, to be entitled to require the seller to deliver to him one-half only of what was originally the subject matter of the contract.
6. It appears to me that when one looks at the cases it is clear that the mere fact that the plaintiff committed a breach of term of the contract with reference to the first instalment would not in itself suffice as a ground for treating the defendant as entitled to refuse to carry out the contract as regards the second instalment. The contention that whenever there has been a breach or a breach in a material particular, the other party is entitled in a contract such as this to bring the contract to an end was negatived by the House of Lords which refused to accept Mr. Cohen's argument to that effect in the Mersey Steel and Iron Co. Ltd. v. Naylor Benzon & Co.  9 A.C. 434. But it appears tome to be equally clear that the House of Lords did affirm the proposition that, if the breach that had taken place was one which went to the root of the contract, the consequence was that the party who was in default could not insist upon the remainder of the contract being carried out.
7. Blackburn, J.'s observation on the case of Honck v. Muller  7 Q.B.D. 92 was that, if the true construction of the contract was in effect as stated by Lord Bramwell, then the Court had come to the right conclusion. In the case of Honrh v. Muller  7 Q.B.D. 92, Lord Bramwell stated that, in his opinion, the contract was to deliver and take 2000 tons of iron and that, inasmuch as it was to be by three instalments and the first was gone and there never could be more than two-thirds of the quantity deliverable the thing bargained for being the whole quantity of iron and no less, the defendant was not bound to deliver two-thirds when the plaintiff required the two-thirds only. Lord Bramwell in Honck v. Muller  7 Q.B.D. 92 pointed out that one-third was not a trifle; and it does seem to me that a case where the contract fails as regards one-half of the total quantity may very well be in a different position from the case where there has been a breach as regards the first instalment but a breach which is not of like importance having regard to the contract as a whole. So far as I can gather from the report in the case of Simpson v. Crippin  42 L.J.Q.B. 28 the breach as regards the first instalment consisted of a failure to send waggons to take some 350 tons out of 500 tons, the total amount of the contract quantity being 6000 to 8000 tons. In the case of Hoare v. Rennie  5 H. & N. 19, the breach was, comparatively speaking more substantial. But it does seem to me that in a case of this character, the argument of Lord Bram well is very difficult to meet. If a person has made a contract for 300 tons, it, seems prima facie, wrong that it should be converted against his will into a contract for 50 tons. If this were a case of a contract for supply of goods by a single delivery, it is quite clear that to bender a quantity that is short of the contract quantity would be to make a bad tender. But having regard to the amount of discussion upon this point that has taken place and the difference of opinion upon it, I can only say that I am not satisfied either that the decision in Honck v. Muller  7 Q.B.D. 92 as applied to such a contract as the present was wrong or that the decision in Hoare v. Bennie  5 H. & N. 19 has, in fact, been overruled in principle by the more recent cases. There may be dicta in Honck v. Muller  7 Q.B.D. 92 which were not necessary for the decision. But it seems to me that, if this contract be taken as a single contract for 300 tens with a subsidiary agreement as regards the dates of delivery and times of payment, the plaintiff having failed as regards no less than one-half at the outset of the contrast would be, in effect, putting upon the defendant a different contract if he were allowed to insist upon delivery of the second half of the goods stipulated for On the whole, I am not prepared to differ from the view taken by the learned Judge and this appeal should be dismissed with costs.
C.C. Ghose, J.
8. I agree