Atkinson, J.

1. This is an appeal from decrees of the High Court of, Judicature at Lahore, dated the 5th January, 1925. which reversed the decree of the Senior Subordinate Judge of Delhi, dated the 14th January. 1924, and dismissed the suit of the plaintiffs with costs.

2. The suit out of which this appeal has arisen was one claiming damages for the non delivery by the respondents of certain goods which the latter had agreed to sell and the appellants had agreed to purchase.

3. The principal question for decision in the appeal is whether under the circumstances proved in the case the plaintiffs are entitled to recover damages from the respondents for the alleged breach of their contract for the sale and delivery of the aforesaid goods.

4. In the order of Court of the Subordinate Judge of Delhi, dated the 9th of August, 1921, it is stated that the respondents (the defendants) had presented for the second time an application to be at liberty to add a plea that the plaintiffs were not ready or willing to perform their part of the contract entered into between the parties, and apropos of this application the Court said:-



The real question in dispute is whether in face of the correspondence, could the plaintiff claim damages and could he consider the contract as subsisting. These points are covered by the issues already framed by me. If I find that the contract was cancelled and the plaintiff could not claim damages, the point as to readiness and willingness would not arise.

If it is held by me that the contract subsisted, the question, as to readiness and willingness, would not crop up. We have got letters sent by the defendant that he considered the contract as cancelled and if I hold that he was not justified in considering the contract as cancelled, he had no locus standi to raise the plea as to the want of readiness and willingness on the part of the plaintiff.

5. The material parts of the aforesaid contract, which was dated the 29th November, 1916, and is very lengthy, ran as follows:-



We had purchased one hundred and fifty (150) cases of white shirting marked D.-1 May to November, i.e. seven shipments, of the office of R.J. Wood, at 20s. 2d. We have sold the same to you at a net profit of Re. 0-4-0 per piece. The patterns and the invoices of the goods will be given to you: on receipt. You shall have to take delivery of the goods on payment of their price to the Bank, You shall have to remove the, goods on compliance with the condition of the office of R. J. Wood. You shall have to pay interest and godown rent according to the terms of the office of R. J. Wood. Besides, you shall have to bear all the expenses incurred. The goods shall be fresh.

Contract made on Mangsir Sudi 5, Sambat 1973, through Moti Ram, Ram Kishan, Brokers.

(Sd.) Mul Chand-Ram Bhagat.

Contract in respect of 140 (one hundred and forty) cases confirmed.

6. It is common ground that a case marked "D.-1" means a tin-lined case containing 50 pieces of Messrs. R. J. Wood & Co.s shirting, manufactured in England, and the goods the subject of the said contract were sold by Messrs. R. J. Wood & Co. to the respondents, and were to be as so packed for export.

7. The plaint is verified by the appellants. In its sixteenth paragraph it is alleged, and apparently not disputed by the respondents, that the shipment of the portion of the goods which should have arrived in India in the months of May and June, 1917, did not arrive in India in the month of March, 1918. The shipments which should have been made in July and August, 1917, did not arrive till June, 1918, and those of September, October and November, 1917, did not arrive till July, 1918.

8. On the 24th April, 1917 (i.e., after the date of the said contract, but before the first shipment thereunder), an Order in Council was issued in London prohibiting the export of cotton goods in tin and wooden cases to India, and this was followed by a similar prohibition by the Government of India.

9. On the 28th April, 1917, the importers, Messrs. R. J. Wood & Co., wrote to the respondents as follows:-



As the British Government prohibited the use of wood and tin cases, kindly note that all your goods on order will come out packed in bales instead of cases until such prohibition is withdrawn; if we do not hear from you within three days we shall understand you agree to this, if not, kindly instruct us how to send the goods out.

10. On the same day the respondents wrote to the appellants a letter to the following effect:-



Dear Sirs,

As the British Government have prohibited the use of wood and tin cases, kindly note that all your goods on order will come out packed in bales in place of cases unless such prohibition is withdrawn. If we do not hear from you within three days we shall understand you agree to this. If not, kindly instruct us how to send the goods out.

11. On the 1st of May, 1927, the respondents wrote to, the appellants a letter in the following terms:-



We are in receipt of your favour of date, and in reply have to say that, having sold Messrs. R.J. Woods goods to different parties, we cannot confirm the letter by sending it to you. If you are so very anxious to see the letter, you are quite welcome to come and see it at our shop. We have already sent you a copy of this letter, and if you will not come to our shop to satisfy yourself, please note we shall not be responsible. Please further note that if we will not hear from you definitely in the matter within the allotted time, you will be responsible for all con-sequences.

12. In reply to this letter the appellants on the same day wrote to the respondents a letter running thus:-



Dear Sirs,

With reference to your letter, we beg to inform you that we do not agree to take the goods sold by you to us in bales instead of cases. Hence we cancel the goods, which please note.

13. Cancel the goods is not an accurate expression, and in this connection must mean cancel the contract entitling us to receive the goods.

14. To this letter the respondents on the 2nd of May replied in the following



Dear Sirs,

We are in receipt of your letter dated 1st May, 1917, and in reply have to say that we sold you goods as per Messrs. R. J. Woods terms, and as that office is going to ship goods in bales instead of cases, you are bound to abide with these term and accept goods in bales. Please note that you are not bound to cancel the goods, and you will have to accept goods in bales as required by Messrs. R. J. Wood.

15. On the 4th of May, 1917, the appellants again wrote to the respondents thus:-



Dear Sirs,

In reply to your letter of the 1st of May, we beg to tell you that we...have cancelled the goods, and we again inform you. Please note.

16. On the 4th of May the appellants replied in the following terms to the respondents letter of the 2nd of May (which they must have received on the 3rd of that month. Their letter runs thus:-



In reply to your letter of the 3rd of May, we cannot accept the goods in bales instead of cases and tins. Please consider them as cancelled, Please note, once for all, as our dealers do not agree, we cannot accept.

17. On the 8th of May the appellants again wrote to the respondents a letter in the following terms:-



Dear Sire,

Re our previous correspondence, we beg to tell you that we have cancelled all goods ordered through you, and we will not take any stake, and also note we have reason and authority to cancel, and hence we will not at all be responsible for the delivery, which please note,

18. The appellants could not have beep more emphatic in repudiating any obligation to accept bales and in refusing to be bound by or to perform it. If delivery of the shirting, packed in bales, was in conformity with the contract, the appellants clearly declared that they would not accept them, and this was acquiesced in by the respondents.

19. No evidence was given establishing that the goods purchased by the appellants could not have been safely shipped and carried to their destination, though packed in bales instead of in wooden boxes lined with tin. The lower Court was of opinion that packing in these cases was not part of description of the goods sold. The High Court, on the contrary, expressed the opinion, grounded on the authority of the case of Bowes v. Shand (1877) 2 A. O. 455; 46 L. J. Q. B. 561; 36 L. T. 857: 25 W. R. 730 and the case of Moore & Co. v. Landover & Co. (1921) 2 K. B. 519: 90 L. J. K. B. 731; 125 L.T. 372; 26 Com. Cas. 267; 37 T. L. R. 452 that the packing of the goods in such cases was part of the description of them. Having regard to the conclusion at which their Lordships have arrived on other portions of the case, it is unnecessary to deal with this point at length or to express any definite opinion upon it.

20. Section 39 of the Indian Contract Act runs thus:-



When a party to an agreement enforceable by law has refused to perform or disabled himself from performing an accepted proposal in its entirety, the person accepting the proposal may put an end to the agreement enforceable by law unless he bas signified by words or conduct his acquiescence in its continuance.

21. Section 63 runs thus:-



Every person who accepts a proposal may dispense with or remit wholly or inpart the performance of the proposal made to him which he has accepted, or he may extend the time for such performance or may accept instead of it any satisfaction which he thinks fit1.

22. The contentions raised on these sections were as follows. The respondents, relying on Sections 39 and 63, said that the appellants had put an end to the agreement and had expressly dispensed them from delivery at all. The appellants contend-ed that Section 63 applied only where there was an agreement to dispense or a con-tract, supported by consideration, to do so, and that in any case it could only operate, when the party dispensing had performed his part of the contract and only something remained to be performed on the other side, unless dispensed with Abaji Sitaram Modok v. Trimbak Municipality 28 B. 66; 5 Bom. L. R. 689. They further said that, if they had been wrong in refusing in advance to accept bales, this repudiation had not been accepted by the respondents, and, therefore, the contract remained alive and ought to have been performed. It is evident that the alleged dispensation under Section 63 is by itself a complete answer, unless the absence of contract or consideration is fatal, for the appellants again and again dispensed with the performance by the respondents of their promise to deliver the goods contracted for and they cannot recover damages for the breach of a promise touching the performance of a thing they wholly dispense with.

23. In Abaji Sitaram Modok v. Trimbak Municipality 28 B. 66; 5 Bom. L. R. 689 Chief Justice Jenkins deals with Section 63, and holds that the promisee mentioned in Section 63, can, only do the acts he is by that section empowered to do, if there be an agreement (as defined by 2 (e)) amongst the parties to that effect. At page 722 of the reportof this case the learned Judge is reported to have expressed himself thus:-



Therefore we hold that assuming there was a legal resolution and that it was communicated as alleged, still inasmuch as a dispensation or remission under Section 63 requires an agreement or contract, the resolution was of no legal effect since the provisions of s. 30 of Bombay Act II of 1884 have not been observed.

24. With this their Lordships are unable to agree The language of the section does not refer to any such agreement and ought not to be enlarged by any implication of English doctrines. On this they agree with the learned Judges of the High Court.

25. They are, therefore, of opinion that the appeal fails and should be dismissed with costs. They will humbly advise His Majesty accordingly.

1It will be observed that their Lordships, in setting out these two sections (Sections 39 and 63) have amplified them by recourse to the interpretation clause (vide SECTION 2 of the Contract Act).

2 Page of 28 B.