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TMI Blog1927 (2) TMI 8X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 August 9, 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 frame ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 140 (one hundred and forty) cases confirmed. 6. It is common ground that a case marked D.-l 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. K.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 till the month of March, 1918. The shipments which should have been made in July and August, 1917, did not arrive till June, 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... parties, we cannot :on- firm the letter by sending it to you. If you are so very anxious to see the 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 not(c) we shall not be responsible. Please further note that, if Atkinson we will not item from definitely in the matter within the allotted time you will be responsible for all consequences. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , and we will not take at 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 been 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 hi conformity with the contract, the appellants clearly deckled 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 Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3 applied only where there was an agreement to dispense or a contract, 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 Sitavam v. Trimbak Municipality (1903) I.L.R. 28 Bom. 66 s.c. 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 will be observed that their Lordships, in setting out these two sections (Section 39 and 63), It is evident that the alleged dispensatio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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