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Performance and discharge.---A contract, being an agreement enforceable by law (S. 2, above) creates a legal obligation, which subsists until discharged. Performance of the promise or promises remaining to be performed is the principal and most usual mode of discharge, but there are several others. Accordingly, the usual method of approved text-writers is to make the discharge of contract a main head of the subject, and treat of performance and other ways of discharge, such as agreement of the parties, breach of the contract, and operation of law, under distinct chapters or subdivisions, as may be seen in the works of the late Mr. Leake and of Sir W. Anson. This Act, for some reason which does not appear, has made. "The Performance of Contracts" the principal title, with the somewhat curious result of including under it a group of sections (62-67) on "Contracts which need not be performed." Whatever may be the merits of this innovation, elegance is not one of them. It is sufficient for practical purposes, however, if the law is intelligently stated in some kind of coherent order. The sections (51-58) on the Performance of Reciprocal Promises really belong to the head of Interpretation, which is not separately dealt with by the Act.

This section has some resemblance to a clause of original draft (cl. 30), which, however, seems rather intended to define what performance is sufficient than to lay down any duty of performance in general, As to performance by an agent, see S. 40.

Such personal considerations as arc here mentioned extend, as shown by illustration (b) to the present section, to contracts involving special personal confidence or the exercise of special skill (cp. S. 40). They do not extend to mere exercise of ordinary discretion. The executors of a man who has ordered goods deliverable by installments under a continuing contract may be bound to accept the remaining installments, for the duty or discretion of seeing that the goods supplied are according to contract does not require any personal qualification. And generally the Court will not invent exceptions to the general rule which are not expressed or apparent from the nature of the contract.

Succession to benefit of contract.---Neither the present section nor anything else in the Act lays down any rule as to the manner in which or the extent to which persons other than the original promisee may become entitled to enforce a promise.

Generally to representatives of a deceased promisee may enforce subsisting contracts with him for the benefit of his estate. It is no real exception to this rule that in some cases the nature of the contract is in itself, or may be made by the intention of the parties, such that the obligation is determined by the death of the promisee. The most obvious example is the contract to marry in the Common Law. Another more seeming than real exception is where performance by the other party is conditional on some performance by the deceased which was not completed in his lifetime and is of such a personal character that performance by his representatives cannot be equivalent. An architect's executor, for example, cannot insist on completing an unfinished design, even if he is a skilled architect himself; and accordingly he cannot fulfill the conditions on which payment, or further payment, as the case may be, would have become due. But a builder's executors may be entitled and bound to perform his contracts for ordinary building work, for they have only to procure workmen of ordinary competence, and similarly in other cases. It is to be remembered that all rules of this kind are in aid of the presumed intention of the parties, and if the parties have expressed a special intention it must prevail.

Payments actually earned and due to a man before his death, though for services of a confidential or personal kind, are a portion of his estate as much as any other debts, and accordingly his representatives succeed to his right of action for them, and may recover them. This is indeed, as a general proposition, elementary, though doubts may be raised on particular facts as to what were exactly the rights required by an original contracting party in his lifetime. The same rule applies to rights of action for conventional damages or penalties. But a cause of action for damages of injuries of a merely personal nature, though arising out of a breach of contract, cannot be sued upon by or against executors. A contract to pay a certain sum of money to a near relative during his life, the consideration being natural love and affection and the document being registered, is enforceable against the heirs of the deceased promisor, by virtue of S. 25 (1) read with S. 37, unless a contrary intention appears.

The rights of an insolvent debtor's assignees to sue on his contracts depend, of course, on statute; but in the absence of more specific provisions they are governed by the same principles as an executor's.

A covenant in a deed of sale giving on option of pre-emption without any limit of time to the vendor and his heirs from the purchaser and his heirs is void as offending the rule against perpetuities.

Assignment of contracts.---Broadly speaking, the benefit of a contract can be assigned, but not the burden, subject to the same exception of strictly personal contracts that has been mentioned as affecting the powers and duties of executors. "Neither at law nor in equity could the burden of a contract be shifted off the shoulders of a contractor on to those of another without the consent of the contractee. A debtor cannot relieve himself of his liability to his creditor by assigning the burden of the obligation to some one else; this can only be brought about by the consent of all three, and involves the release of the original debtor... On the other hand, it is equally clear that the benefit of a contract can be. assigned, and wherever the consideration has been executed, and nothing more remains but to enforce the obligation against the party who has received the consideration, the right to enforce it can be assigned, and can be put in suit by the assignee in his own name after notice....There is, however, another class of contracts where there are mutual obligations still to be enforced, and where it is impossible to say that the whole consideration has been executed. Not that the burden of a contract can ever really be assigned, but sometimes it may be discharged by a delegated performance (in which case it does not matter to the promisee What are the exact relations of agency or otherwise between the promisor and his delegate), and sometimes not.

The Contract Act has no section dealing generally with assignability of contracts. A contract which, under section 40, is such that the promisor must perform it in person has been held not to be assignable. "When considerations connected with the person with whom a contract is made form a material element of the contract, it may well be that such a contract on that ground alone is one which could not be assigned without the promisor's consent, so as to entitle the assignee to sue him on it". Thus where R agreed with M, the proprietor of an indigo concern, to sow indigo, taking the seed from M's concern, on four bighas of land out of his holding selected by M or his Amlah, and, when the indigo was fit for weeding and reaping, to weed and reap it according to the instructions of the Amlah of the concern, and if any portion of the said land was in the judgment of the Amlah found bad, in lieu thereof to get some other land in his holding selected and measured by the Amlah, it was held that the contract was entered into with reference to the personal position, circumstances and qualifications of M and his Amlah and M could not assign the contract without the consent of R.

We next proceed to consider whether a contract for the future delivery of goods can be assigned under the law; that is, if A agrees to sell, say, rapeseed, cotton or gunny bags to B, deliverable at a future day, whether either party can assign the contract Without the consent of the other, while the contract is still executory, so as to enable the assignee to maintain an action in his own right and in his own name. The High Court of Bombay held that neither the seller nor the buyer of goods, where the goods are to be delivered at a future day, can assign the contract, before the date fixed for delivery, to a third person without the consent of the other so as to entitle the assignee to sue in his own name; but that there was no objection to a suit brought by the assignor and assignee as co-plaintiffs, for when the suit is by them both, there is no question as to which of them is to recover. The decision expressly proceeded upon the principle of the English law that where a contract is still executory the burden thereof cannot be assigned. The Court was not called upon to decide whether the interest of the seller or buyer in the contracts was assignable as an actionable claim within the meaning of the Transfer of Property Act.

An actionable claim is defined in S. 3 of the Act as a claim to any debt (except secured debts), or to any beneficial interest in movable property not in the possession, either actual or constructive, of the claimant, whether such debt or beneficial interest be existent, accruing, conditional or contingent. An actionable claim can always be assigned, but the assignment, to be complete and effectual, must be effected by an instrument in writing; and upon the execution of such instrument all the rights and remedies of the assignor vest in the assignee, who may thereupon sue in his own name without making the assignor a party to the suit.

An option to repurchase property sold in prima facie assignable, but the contract may be so worded as to show that it was to be personal to the grantee and not assignable.

Where A assigned a mortgage to B, agreeing to indemnify against any loss on the mortgage, and B assigned his rights to C, C is entitled to sue on the contract of indemnity.

Any other law.---The most important statutory discharge of contracts, outside the present Act, is that which follows on insolvency. See the Presidency Towns Insolvency Act, 1909, and the Provincial Insolvency Act, 1920, See also Ss. 62 to 67. The performance may be partially dispensed with under this Act, or any other law.

Leave to appeal granted to consider whether concurrent findings of fact by two courts below could be set aside and also whether High Court in its revisional jurisdiction could without relevant plea non suit the appellant on ground that time was essence of contract.

Purchaser not fulfilling Iris obligation---Contract of sale terminated by seller---Seller can retain earnest money to the extent of damages suffered by him---No evidence of such damages produced---Earnest money must be refunded.

Even where the seller is the defaulting party, the respondent could forfeit the earnest money or advance payment only on proof of loss sustained by him. It would only be permissible, in the facts and circumstances of the case to award reasonable compensation subject to the limit of the amount paid under the contract by way of advance. But there is no counter-claim get up by the respondent nor is there evidence worth the name brought on the record to indicate at what price the goods were subsequently sold in the market on their release from the custom authorities. Nor is there any evidence to show that any loss was sustained on this account. In the absence of such evidence it is not possible to determine such compensation. The respondent is, thus, not entitled to retain or forfeit the advance payment even if the breach on the part of the appellant is established.

Contract---Question where agreements executed contemplate that in absence of transit facilities provided at Railway Stations, contractor would not be paid under Schedule B (2) (d) of agreement irrespective of fact that he has been handling work as specified by Schedule B (2) (d)---Evidence showing plaintiff handling GR & TR Vans of Railway Stations and there being no rebuttal in this regard demand for payment by contractors Under Schedule B (2) (d), held, cannot be denied.

Specific Relief Act (1 of 1877), S. 54---Contract, performance of---Permanent injunction---Tenants seeking permanent injunction against landlords/owners restraining them from removing tenants's sign-boards affixed on either side of external walls of offices occupied---Tenants alleging landlords agreement to such affixation but when such sign-boards affixed, landlord's removing them unauthorisedly---Signboards on agreement between both parties again affixed but landlords threatening to remove them---Correspondence between parties confirming agreement between them whereby tenants agreed to-pay increased rent in consideration of permission to put up sign-boards---Held, if rent enhanced in consideration of landlords permitting tenants to affix sign-boards and such enhanced rent accepted, landlords cannot later on turn round and take contrary position---Permanent injunction granted, in circumstances.

Condition attached to the contract part of consideration for contract---Contract is not contingent contract. Where the term in the contract of sale is to the effect that on registration of the document after taking permission, the defendants would take the balance of Rs. 1,300 from the plaintiffs and that plaintiffs would pay this amount at that time. The condition to take permission is not collateral to the contract, but forms part of the consideration of the contract. Therefore the contract cannot be regarded as contingent.

Rule of law regarding---Held: Contract to be brought into existence at least by two parties---Held further: Termination of contract being converse of its creation, principle demands that it should not be recognised unless this be what both parties intend.

Performance of contract---Plaintiff not only failing to prove that he was prepared to perform his part of contract but in fact not performing his part of contract at all-Held: He was not entitled to any relief and three Courts below were right in non-suiting him.

Mutual obligations in contract---Contract is considered performed only when respective obligations have been fulfilled. A contract which places mutual obligations on the contracting parties cannot be treated as wholly executed until the respective obligations have been discharged. Thus, in a contract for the supply of goods the contractor has to make the supplies and the other contracting party has to make payments for the said supplies and until the payments have been made the contract is not at an end and the liability arising under the said contract is still subsisting. If the contract has been wholly performed, that is to say, the supplies made and payments received, then there is nothing outstanding and no question of any liability occurring thereunder arise.

Contract, performance of---Insurance---Fire policy---Appellant an insurance Company undertaking to compensate respondents a transport Company in event of goods stored in respondent’s godown being destroyed by fire---Fire breaking out in respondent’s godown and goods stored burnt down---Respondents examining consigness of goods, such persons producing vouchers and receipts showing goods and value of goods transported by them to respondents, delivery of which not taken when fire broke out---Respondents examining all available evidence to show goods having been transported to respondent’s godown and same having been gutted by fire---Such versions as well as value given by witnesses not challenged by appellants---Respondents also examining a Surveyor, appointed by appellants and such person deposing to have been appointed by appellants, that he visited site only after two days of incident of fire examined actual damage to consignment, and estimated loss caused to respondents---Appellants, due to report of such Surveyor being not favourable to them allegedly appointing another Surveyor after four months but such Surveyor not produced in Court as witness---Versions of such second Serveyor, belated, inconclusive, and hardly carrying any weight in circumstances and not preferable to report of first Surveyor---No evidence produced by appellants in rebuttal---Claim, held, proved and appellants rightly found liable to extent of insurance cover.

Specific Relief Act (I of 1877), S. 22---Sale agreement of property---Seller in part performance of agreement handed over vacant and peaceful possession of property and documents of title to purchaser upon execution of agreement---No other consequence except only 10% of total sale consideration provided in agreement in event of breach---Time mentioned in agreement, for its performance, was not essence of contract---Delay simpliciter, either on the part of seller or purchaser, held, was not of much consequence in the absence of prejudice to either party---Court could not, therefore, refuse specific performance of agreement unless exceptional circumstances were shown to exist which had caused serious prejudice to seller on account of delay which could not be compensated except by refusing specific performance.

38. Effect of refusal to accept offer of performance.---Where a promisor has made an offer of performance to the promise, and the offer has not been accepted, the promisor is not responsible for non-performance, nor does he thereby lose his rights under the contract.

Every such offer must fulfill the following conditions:---

(1) it must be unconditional;

(2) it must be made at a proper time and place, and under such circumstances that the person to whom it is made may have a reasonable opportunity of ascertaining that the person by whom it is made is able and willing there and then to do the whole of what he is bound by his promise to do;

(3) if the offer is an offer to deliver anything to the promisee, the promisee must have a reasonable opportunity of seeing that the thing offered is the thing which the promisor is bound by his promise to deliver.

An offer to one of several joint promisees has the same legal consequences as an offer to all of them.

The first sub-section is chiefly, though not exclusively, appropriate to an offer of payment; the second and third concern offers of other kinds of performance, such as delivery of goods.

Offer must not be of part only.---With regard to validity of an offer of performance, it must be not only unconditional, but entire; that is, it must be an offer of the whole payment or performance that is due.

In the High Court of Bombay, the defendant had tendered a sum which was only a small fraction of the whole sum claimed and found due, and one question in the case was whether interest was due, after the date of this offer, on the whole sum or only on the residue. Telang J. though that a tender of part of an entire debt is bad, applied only to cases when the party making the tender admitted more to be due than was tendered, and that it had no application where the debtor tendered the amount as in full payment of debt. The Court, however, decided against the defendant on the ground that the tender was ineffectual, as it had not been followed by a payment into Court in the suit, as required by an established rule of practice. This opinion of Telang J. appears, with great respect, to be founded on a misconception of the principle involved. A creditor is not bound to accept less than is actually due and payable, and therefore by refusing to accept only a portion of the principle he cannot lose his right to interest on that portion where interest is otherwise payable. A so-called tender of less than the debtor admits to be due is not a tender at all, but an offer of payment on account, which the creditor may accept or not, and risks nothing, in point of law, by not accepting, though it is often, in point of fact, unwise not to take what one can get. Tender is, one may almost say, essentially the offer of a sum which the debtor asserts to be the whole sum due, but which is less than the creditor claims; for if the parties are agreed on the amount due, a formal offer is needless and useless. This being so the creditor refuses money at his peril in case his further claim turns out unfounded; but if he accepts; the debtor is still only offering what is due, and the creditor is not bound to make any .admission in return. He may take the debtor's offered payment without prejudice to. his claim, such as it may be, to a further balance. The debtor is entitled to a receipt for what he pays, but not to a release. It remains to be seen whether there was a discharge or only a payment on account. Hence a tender will be vitiated by the addition of any terms which amount to requiring the creditor to accept the sum offered in full satisfaction, or to admit in any other way that no more is due. It seems almost superfluous to add that an offer to pay an unascertained sum cannot be a tender.

Offer must be unconditional.---"The person making a tender has a right to exclude presumptions against himself by saying: 'I pay this. as the whole that is due': but if he requires the other party to accept it as all that is due, that is imposing a condition; and, when the offer is so made, the creditor may refuse to consider it as a tender".

A mere specifying of the account on which a payment is offered, though accompanied by such words as "in settlement" or the like, does not amount to a condition in this sense; for it is no more than saying that the debtor offers all that he believes to be due. More than this, a debtor may tender, expressly under protest, a greater sum than he admits to be due, and thus reserve the right of taking further proceedings to test the justice of the claim. Such a protest does not impose any condition. "The creditor has only to say, 'I take the money; protest as much as you please', and neither party makes any admission." A tender of a debt before the due date is not a valid tender, and will not prevent interest from running on the loan. A cheque sent in payment of both moneys immediately due as well as of moneys not payable for some time, is not a good tender.

Able and willing.---Sub-S. (2) provides that the tender must be made under such circumstances that the person to whom it is made may have a reasonable opportunity of ascertaining that the person by whom it is made is able and willing there and then to do the whole of what he is bound by his promise to do. But when the creditor is dead, and no probate has been obtained by the executors of the deceased, an offer by letter to pay the debt to the executors, on a proper release being executed, was held in Bombay to be a valid tender, provided the debtor was able to pay the debt, and had money available for the purpose, no actual production of money was necessary in such a case, there being no person entitled in law to receive the payment. In the case eited the executors, before taking out probate, had called upon a mortgagor to whom the deceased had lent money on mortgage to pay the amount due on the mortgage for principal and interest. The money for repayment was available before the notice expired, but probate was not contained until after that date. The Court held that actual lender was not necessary, since there was no legally constituted representative to whom it could be made; and that interest on the mortgage debt should in the circumstances stop on the expiration of the notice, since the executors might, if they had been diligent, have obtained probate before the date. A different view was taken and the opinion expressed that a debtor must either tender to a legally constituted representative or take the risk of tendering to a person not entitled to receive the debt and of a subsequent suit by the executor or administrator or wait until someone obtains probate or letters of administration and incure liability to pay additional interest in the meanwhile. It is submitted that this view is the more correct; but a debtor may perhaps be able to escape from the very real embarrassment of such a situation by taking advantage of Ss. 9-11 of the Administrator-General’s Act, 1913 (III of 1913).

A plea of tender before action must be accompanied by a payment into Court after action, otherwise the tender is ineffectual. The following is the form of the plea of tender: "As to the whole (or as to Rs...., part of the money claimed) the defendant made tender before suit of Rs.....and has paid the sum into Court." See Code of Civil Procedure, 1908, O. 24, rr. 1-3, and Schedule I, Appendix A. "Written Statements," Form No. 4.

Tender of installments.---A tender is entitled to decline, in the absence of any agreement as to repayment of the loan, to receive payment of the sum due to him in installments, and he can claim that the whole sum due be paid at one and the same time. But when payment of money or delivery of goods in installments is provided for by the contract, a tender of installments is a good tender.

Reasonable opportunity.---A tender of goods must be so made that the person to whom the goods are offered has a reasonable time to ascertain that the goods offered are goods of the quality contracted for. A tender made at such a late hour of the appointed day that the buyer has not time to inspect them is not good. In a Bombay case, the defendant agreed to purchase from the plaintiff 100 bales "fuly good fair Kishli cotton," to be delivered from 15th March to 1st April, 1881. On 30th March the plaintiffs sent the defendant a letter enclosing a sampling order, which was received by the defendant's agent at 11-30 a.m. that day. The defendant got samples taken of the cotton, and a dispute having arisen as to the quality and classification of the cotton, the plaintiffs wrote to the defendant on 31st March asking him to attend with his surveyor at 1 p.m., on that day to survey the cotton, as otherwise an ex parte survey would be held. It being a mail day, the defendants's surveyor could not attend at the appointed hour, and the plaintiffs had an ex parte survey held by their own surveyors, and they pronounced the cotton to be of the description contracted for. Shortly afterwards the defendant asked for a survey by a letter which reached the plaintiffs at 2.19 p.m. on that day. The plaintiffs did not comply with the application, and called upon the defendant to take delivery of the goods. in a suit by the plaintiffs for damages for breach of the contract it was contended for the defendant that no reasonable opportunity was afforded to the defendant to examine the goods, as there was no joint survey, and that the time allowed by the plaintiffs for the examination of the cotton was not sufficient. It was held that the defendant had reasonable opportunity within the meaning of this section.

"Then are we to go further and to say that the purchaser is entitled to continue inspecting and examining until the expiration of the period for delivery? I find no authority for this, and in many cases it would be unreasonable to place no limit on the inspection. Is a purchaser at liberty to open and taste every bottle of wine in a lot sold, or in the present case to pass every pound of cotton through an expert's hands? There must be some limit, and I think that a reasonable opportunity is the limit alike for vendor and purchaser, and that such a reasonable opportunity had been had by I p.m. on the 31st March."

Reasonable opportunity of inspection is all that the Act requires; it is the receiving party's business to verify, not the delivering party's to supply further proof that the goods are according to contract. The goods need not be in the delivering party's actual possession; control is enough.

Tender of money.---A creditor is not bound to accept a cheque; but if a cheque is tendered and received, and the creditor or his agent objects only to the amount, or makes no immediate objection at all, he cannot afterwards object to the nature of the tender. Downright refusal by the creditor to accept payment at all precludes any subsequent objection to the form of the tender.

Legal tender.----The money tendered must be current coin of the, country. An insured cover which purports to contain currency notes amounting to the full sum due is not legal tender.

Offer to one of several joint promisees.---A tender of rent by a lessee to one of several joint lessors and of a mortgage debt by a mortgagor to one of several mortgagees would be valid tender under this section.

Validity of discharge by one of several joint promisees.---It was held by the High Court of Madras that this section does not make it incumbent on the debtor to satisfy all the joint promisees before obtaining a complete discharge, and therefore a release of a mortgagor by one of two mortgagees on payment to him of the mortgage debt discharges the mortgagor as against the other mortgagee. Later, however, a Full Bench of the Madras high Court (White C.J. dissenting), held that one of several payees of a negotiable instrument can give a valid discharge of the entire debt without the concurrence of the other payees. It was observed that there was no distinction as regards the question of discharge between claims under a mortgage bond and those under a negotiable instrument. Referring to the last paragraph of S. 38, Sankaran Nair J. said: "It is difficult to impute an intention to the Legislature that the promisor was entitled to make the offer though the promisee was not entitled to accept it. It seems clear that if the promisor was entitled to offer payment to one of the promisees which the latter was entitled to accept, the promisor cannot be held to be liable to pay over again to the other promisees what he has already paid. The payment therefore must be treated as a complete discharge". On the other hand, White C.J. in delivering his dissenting judgement said: "It (S. 38) provides in effect that all the joint promisees get the benefit of the legal consequences, whatever those consequences may be, of an offer, or a tender, to one of them. The section does not deal with the legal consequence of an accepted tender, or of an accepted offer of performance, but with the legal consequences where a tender or offer has been made and the tender or offer has not been accepted. No doubt the last paragraph of the section is general and not restricted to an offer which has not been accepted but apparently the Legislature was not contemplating the legal consequences of an offer which had been accepted but the legal consequences of an offer which had been refused. I do not think we can infer from this enactment that the Legislature intended to lay down by implication the acceptance of payment by one of several promisors operated as a discharge of the claims of the others. On the other hand, as it seems to me now, S. 45 which deals with the devolution of rights where a person has made a promise to two or more persons ‘jointly’ throws very little, if any, light on the question which we have to decide.........If we are unable to find an answer to the question within the four corners of the Contract Act, we have to look to the general law and so see whether the rule of law applies or whether the rule or rather the presumption of equity is to prevail. I think the equitable presumption applies and I do not think this presumption is negatived by the provisions of the Contract Act". The opinion of White C.J. was adopted by a Full Bench in the Punjab.

We agree with the dissenting opinion of White C.J. so far as concerns the present section. Tender of a money debt does not discharge the debt (a point surely not irrelevant); the material section of the Contract Act, as regards the right to give a discharge in the name of joint debtors, is not S. 38 but S. 45.

In any case a payment to one of several joint creditors does not operate as a payment to them all where the payment is fraudulently made to him and not for the benefit of them all.

The principle of the decision applies only where there are two or more joint promisees. It does not apply to the case of co-heirs who are not joint promisees, but the heirs of a single promisee, and a release therefore of the debtor by one of the heirs of the deceased creditor on payment to him of the amount due on the bond is not a valid discharge to the debtor.

Validity of discharge by one of several joint decree-holders.---One of several joint decree-holders cannot receive payment or give a valid discharge for the whole debt, so as to bind his co-decree-holders; and this is so, even if the joint decree-holders are partners, unless the partner receiving payment has been constituted their agent for the purpose by his fellow partners.

39. Effect of refusal of party to perform promise wholly.---When a party to a contract has refused to perform, or disabled himself from performing, his promise in its entirety, the promisee may put an end to the contract, unless he has signified; by words on conduct, his acquiescence in its continuance.

Refusal to perform contract.---It is not easy to see why this section is placed here. The subject-matter would seem realy to belong to the category of contracts, not which must, but which need not, be performed, dealt within Ss. 62-67, below. Further, it is closely connected with the consequences of breach of contract laid down in Chap. VI. However, a commentator must take the Act as he finds it.

As to failure in performing other particular terms of a contract, no positive general rule can be laid down as to its effect. The question is in every case whether the conduct of the party in default is such as to amount to an abandonment of the contract or a refusal to perform it, or having regard to the circumstances and the nature of the transaction, to evince an intention not to be bound by the contract. It seems, however, with great submission, that the intention which is material is not that with which the contract is broken, but that with which it was made. Parties can undoubtedly make any term essential or non-essential; they can provide that failure to perform it shall discharge the other party from any further duty of performance on his party, or shall not so discharge him, but shall only entitle him to compensation in damages for the particular breach. Omission to make the intention clear in this respect is the cause of the difficulties, often considerable, which the Courts have to overcome in this class of cases.

It may be further observed, with regard to the illustrations, that it would be rash to extend them. In reading the illustrations to the Act, so far as they bear on questions of construction, it must be assumed that there are not any terms beyond those stated; the agreements tact with in practice will almost always contain special terms, which must be considered.

The principles set forth above were applied by the High Court of Calcutta in a case where the plaintiff had agreed to purchase from the defendant 300 tons of sugar, "the shipment to be made during September and October next in lots of about 75 tons in a shipment," the terms as to payment being cash before delivery. Notice of the arrival of the September shipment was given to the plaintiff, and he was called upon to pay before delivery. The plaintiff was unable to pay, and asked for time, but the defendant would not give it, and ultimately wrote to the plaintiff stating that he had cancelled the contract. On the arrival of the October shipment the plaintiff tendered payment for the same, but the defendant refused to accept the money, saying that the contract had been cancelled. The plaintiff thereupon sued the defendant for damages for refusing to deliver the October shipment. It was held, in accordance with the English authorities, that mere failure on the part of the plaintiff to pay for and take delivery of the September shipment did not amount to "a refusal" to perform the contract within the meaning of this section so as to entitle the defendant to rescind the contract, and that it did not exonerate him from delivering the October shipment.

There is nothing in this section to confine it to anticipatory refusals; it includes refusal to perform any substantial part of the contract which remains to be performed. But a merely conditional refusal withdrawn before the time for performance cannot be treated by the other party as final. It has been held the section applies only when the contract is still executory, and the time for performance has not yet arrived. This is effect restricts, the section to cases of anticipatory breach, or cases of continuing contracts under which obligations remain to be performed, such as installment contracts.

Where two transactions are separate, the repudiation of one cannot affect the other.

A buyer who has refused to receive goods on the ground that they were not tendered within the agreed time cannot afterwards change his ground and raise the objection that in fact the goods were not according to contract; for the election to rescind, once made, is conclusive.

It may be worth while to add that an unsuccessful attempt to perform a contract which does not disable the promisor from still performing it effectually within the time limited, or a reasonable time, and does not cause any damage to the promisee, cannot be treated as a refusal. Such an attempt does not itself affect the legal rights of the parties at all.

"Disabled himself from performing."---Disability due to the party's own fault must be distinguished from inability to perform a contract. See Specific Relief Act, S. 14, as to the effect of inability of a party to perform the whole of his part of a contract. See also S. 24 of the same Act, which enacts, amongst other things, that specific performance of a contract cannot be enforced in favour of a person who has become "incapable" of performing any essential term of a contract that on his part remains to be performed.

It is very old law that if a promisor disables himself from performance, even before the time for performance has arrived, it is equivalent to a breach.

"Promisee may put an end to the contract."---The promisee, if he pleases, may treat the notice of intention as inoperative, and await the time when the contract is to be executed, and then hold the other party responsible for all the consequences of non-performance; but in that case he keeps the contract alive for the benefit of the other party as well as his own; he remains subject to all his own obligations and liabilities under it, and enables the other party not only to complete the contract, if so advised, notwithstanding his previous repudiation of it, but also to take advantage of any supervening circumstances which would justify him in declining to complete it.

On the other hand, the promisee may, if he thinks proper, treat the repudiation of the other party as a wrongful putting an end to the contract, and may at once bring his action as on a breach of it; and in such action he will be entitled to such damages as would have arisen from the non-performance of the contract at the appointed time, subject, however, to abatement in respect of any circumstances which may have afforded him the means of mitigating his loss." When the promisee has so determined his choice, then, whether he sues for damages or not, it is not open to the promisor to go back on his refusal and treat the contract as subsisting. Similarly if he freely and with full knowledge elects not to accept the repudiation, he cannot go back on this election, and sue before the date of performance has arrived. If the law lays down a particular form in which repudiation must take place, it is not open to the promisee to put an end to the contract in any other way.

Arbitration clause.---When a contract is terminated by acceptance of the repudiation, an agreement to refer all disputes to arbitration does not become void.

Contract of service.---Where a servant or a clerk who is engaged by the month leaves his employer's service wrongfully in the course of the then current month, he is not entitled to any salary for the broken portion of the month in the course of which he left the service. But where the engagement is for one full year, say from 1st April, 1908, to 31st March, 1909, and the salary is fixed at so much (say Rs. 18) per month, and the servant wrongfully leaves his employer's service on 20th March, 1909, he is nevertheless entitled to his salary for the eleven months during which he actually served his employer, less the damages incurred by the employer by the breach, though the salary be payable under the terms of the agreement in a lump sum of Rs. 216 at the end of the year. It was so held by the High Court of Madras, the Court observing that the case was governed by the present section and S. 64, and that ill. (c) to S. 65 was almost conclusive in the plaintiff's favour.

Measure of damages.---The measure of damages for "anticipatory breach" is not necessarily the same as it would be for a failure or refusal occurring at the time when performance was due. The injured party is under an obligation to take , all reasonable steps to mitigate the loss flowing from the breach; the emphasis is on the word "reasonable". In a case the defendants, the owners of a cotton ginning mill, contracted in October 1919, that for a period of six months they would put their mill at the disposal of the plaintiff, a cotton merchant, for half its working time at fixed rates in order to gin raw cotton which the plaintiff contemplated buying and which he agreed to supply to them for the purpose. In November, before any of the plaintiff's cotton had been taken by the mill, the defendants repudiated the contract. The plaintiff sued the defendants for damages and it was held that the breach being anticipatory, the damages were the estimated loss of profit to the plaintiff by the reason of the contract not being carried out, and that the plaintiff' was not bound to buy cotton and have it ginned at other mills under his obligation to mitigate the damages. Lord Sumner in delivering the judgment of the Privy Council observed: "Though no doubt the plaintiff was bound to take reasonable steps to mitigate his loss, the present argument requires that,-after the appellant's breach, he should have brought the cotton, which both parties knew he had not yet done, and then have tendered it for ginning to other mills in order to cut down his loss for their benefit to a mere difference in ginning rate. The fact, however, is that this was a case of anticipatory breach. The contract was repudiated almost as soon as it was made, and, the intended operation being thus baulked, the plaintiff was entitled to measure his damages as they then stood and could not be required by the defendants to buy the cotton, which they had announced in advance they would not gin for him."

Where the plaintiff has accepted an anticipatory repudiation e.g., has begun an action for damages, it is his duty forthwith to mitigate the damage if a reasonable opportunity arises. If the opportunity is lost, the defendant is entitled to have the damages assessed at the time when the opportunity occurred. If, however, the plaintiff does not accept the anticipatory repudiation, but holds the defendant to his contract, damages are to be assessed at the time fixed for performance, and no duty to mitigate arises until that date.

Insolvency of promisor.---This is not of itself equivalent to a total refusal to perform the contract, though it may be accompained by conduct which amounts to a notice of the insolvent debtor's or his representative's intention not to pay his debts or perform his contracts. A seller, however, is not bound to go on delivering goods to an, insolvent buyer.

Contract of sale---Breach---Subject of contract sold away to third party---If repudiating party can rely on arbitration clause in the contract. Where there was an agreement to sell a Textile Mill to a party but the mill was sold to another party. The party which repudiated the contract relied on the arbitration clause in the agreement and wanted the matter to be referred to arbitration. It was contended that as the contract had been repudiated and the dispute had not arisen out of the performance of the contract the arbitration clause had ceased to be effective.

Held: The repudiating party is not prevented from invoking the arbitration clause in the contract for the purpose of setting all questions to which his repudiation has given rise to. It is not correct to say that the arbitration clause will be given effect in the agreement but not when the contracts ended by something dehors the agreement.

Breach of condition, waiving of---An insurer can waive breach of condition in writing or orally.

Cover not---Loss of goods---Responsibility of insurer---Loss occurring during course of cover note---Insurer, held, would be responsible for such loss.

Contract wrongfully repudiated---Other party insisting on its performance--Rights and obligations of parties are not affected by the repudiation. A wrongful repudiation in the absence of election by the other party leaves both of them with their rights and liabilities as if no repudiation has taken place. This applies in cases of anticipatory breach. Therefore, if the other party still insist on performance of the contract, the repudiation is what is called ‘brutum fulment’ that is the parties are left with their rights and liabilities as before.

Refusal of buyer to pay contract price---Repudiation of contract---Seller may claim damages for breach of contract without doing anything further. The price in a contract is amongst other things the foundation of it and if a buyer refuses to pay the contracted price it is putile for him to say that he was not repudiating the contract. Therefore the refusal of the buyers to pay the contracted price would amount to repudiation of the, contract, entitle the sellers to put an end to it and claim damages tender the law of contract. Once a buyer repudiated the price it would not be necessary for the seller to go about doing things for the performance of the Contract and produce the required quantity of the goods. Upon such a repudiation they would be entitled to treat this as an anticipatory breach and put an end to the contract and claim damages if they were so entitled.

Suit for cancellation of contract---Where may be filed. Where a contract is entered into at K but the actual work is to be performed at R, and it is at R that one of the parties is guilty of a breach of contract, it was contended that the other party could bring a suit for cancellation of contract and rendition of accounts only at K.

Held: As the cause of action did arise, in part at least if not wholly, at R, the Court at R, in view of clause. (c) of section 20, Civil Procedure Code, 1908, had jurisdiction to try the suit

Rescission---Repudiation of contract, held, must be total, absolute and clear.

Contract---Repudiation of---Effect of---Party to contract deciding to repudiate its obligations under contract---Held: Contract not to be entirely abrogated by such repudiation but to only relieve injured party of duty of further fulfilling obligations undertaken by it in favour of repudiating party under contract---Held further: It being for other party to accept or decline offer or decision, wrongful repudiation by one party in absence of acceptance by other to leave both of them with their rights and liabilities as if no repudiation took place.

Agreement, repudiation of---Appellant subsequently writing on copy of sale-agreement of land to return advance by particular date---Writing unilateral, accepted by respondent---Respondent never claiming damages nor giving in writing to appellant to be no longer interested in specific performance of contract---in case of appellant's failure to refund advance, sale-agreement to be deemed intact and enforceable---Held, in circumstances, endorsement does not amount to repudiation of agreement by respondent---Held further, time of essence of sale-agreement of land.

Personal contracts.---Contracts involving the exercise of personal skill and taste, or otherwise founded on special personal confidence between the parties, cannot be performed by deputy. But it is not always easy to say whether a particular contract is, in this sense, personal or not, or what is an adequate performance of a personal contract.

A contract for personal agency or other service entered into with partners is generally determined by the death of a partner, or it may be more accurate to say that it is not held to continue with the surviving partner unless there is something to show a distinct intention to that effect. On the other hand, a contract with a firm which has nothing really personal about it so far as regards the partners, for example, a contract to perform at a music-hall belonging to the firm, is not generally determined by the death of one member of the firm, especially if the individual members of the firm were not named in the contract and not known to the other party. Every case must really be judged on its own circumstances.

The illustrations to the section look obvious enough. But the second is not quite so simple as it looks. Suppose A, is not a painter, but a sculptor. Must A chisel the whole of his statue in the marble with his own hand, or if the statue is to be in bronze, must be cast it himself? According to all modern usage, he is clearly not bound to do so; he is expected to design and supervise the work, but the manual execution will be done, subject to the master's final touches, by skilled workmen. Benvenuto Cellini cast his own Persues; Sir Hamo Thornycroft did not cast his own King Alfred. Again, A is a painter commissioned to carry out a great mural deocration. Must he actually hold the brush that lays on every square inch of paint? Certainaly that was not the understanding of the great European painters of the sixteenth and seventeenth centuries and their patrons; the less important parts of the work were executed by pupils and assistants under the master's direction, and it would have been impossible to get the work done otherwise. Still the master was bound to perform his promise personally in the sense that he could not delegate the design or general supervision to a junior. In ascertaining what is contemplated by the parties, usage as well as the express terms must be regarded.

Ordinary contracts for delivery of goods, payments for them and the like, may of course be performed by deputy.

Assignment on contract---When possible---Personal contracts cannot be assigned. Held: S. 40 read with the provisions of clause (b) of section 23 of the Specific Relief Act indicate that as a general rule the benefits of a contract are assignable subject to any contrary intention exhibited in the contract or the document itself. This is the rule in England and it also appears to me to be the rule under the Contract Act and the Specific Relief Act. Such a contrary intention may, of course either be express or arise by necessary implication. One illustration of the cases in which such a contrary intention is implied is to be found in what are commonly known as personal contracts or contracts depending upon the learning skill, solvancy or any personal qualification of the assignor or the party to the contract or from whom the benefits of the contract are claimed under the particular agreement.

41. Effect or accepting performance from third person.---When a promisee accepts performance of the promise from a third person, he cannot afterwards enforce it against the promisor.

There is no occasion to discuss the point as the words of the Act leave no room for doubt. It need hardly be added that this section applies only when a contract has in fact been performed by a third person.

42. Devolution of joint liabilities.---When two or more persons have made a joint promise, then, unless a contrary intention appears by the contract, all such persons, during their joint lives, and after the death of any of them, his representative jointly with the survivor or survivors, and after the death of the last survivor, the representatives of all jointly, must fulfill the promise.

Joint promisors.---The series of sections now before us materially varies the rules of the Common Law as to the devolution of the benefit of and liability of joint contracts. As far as the liability under a contract is concerned, it appears to make all joint contracts joint and several. It allows a promisee to sue such one or more of several joint promisors as he chooses, and excludes the right of a joint promisor to be sued along with his co-promisors. Hence the minority of one joint promisor does not affect the liability of the other. There is still considerable difference of opinion in the High Court as to its consequential operations where a judgment has been obtained against some or one of joint promisors, and the decisions must be examined. We think it the better opinion that the enactment should be carried out to its natural consequences, and that, notwithstanding the English authorities founded on a different substantive rule, such a judgment, remaining unsatisfied, ought not, to be held a bar to a subsequent action against the other promisor or promisors.

Effect of decree against some only of joint promisors.---In the High Court of Calcutta it was held, that a decree obtained against one of several joint makers of a promissory note is a bar to a subsequent suit against others. This was followed by the High Court of Madras in a similar case. Strachey C.J. dissented from these decisions. In that case the question was whether a judgment obtained against some of several mortgagors and remaining unsatisfied against them was a bar to a second suit against other joint mortgagors, and the Court held that it did not constitute any bar and that a second suit was maintainable, at all events in the Mufassal, since the passing of the Contract Act. Strachey CJ said: "In India the right of joint debtors has been expressly excluded by S. 43 of the Contract Act, and therefore, the basis of doctrine being absent, the doctrine itself is inapplicable, Cessante ratione legis, cessat ipsa lex."

Coming next to the High Court of Bombay, in a case where the question was whether the plaintiff having sued an agent to judgment was entitled under S. 233 (below) subsequently to maintain a suit against the principal, Macleod J. expressed his dissent both from the reasoning and the decision of Strachey C.J., in (1900) 22 All. 307, and held that the present section merely took away the right of a joint promisor to have his co-promisor joined with him in the action, and did not enable the promisee to file separate actions against both. "It could not have been intended," said the learned Judge, "to deprive the second co-contractor of his right to plead the previous judgment, or to split up one cause of action into as many causes of action as there were joint contractors."

The reasoning of Strachey C.J. seems to us conclusive; but until it has been adopted generally by the other High Courts, or confirmed by the Supreme Court, the point must be regarded as open.

Judgment against one joint promisor who admits the claim after institution of the suit does not bar the suit against other joint promisors.

Suit against one of several partners.---The section applies as much to partners as to other co-contractors. It was held in a suit brought upon a contract made by a partnership firm that a plaintiff may select as defendants those partners of the firm against whom he wishes to proceed. This decision was cited with approval by Farran C.J. and was followed by the High Court of Madras, where it was held in a similar case that according to the law declared in S. 43 of the Contract Act, especially when taken with S. 29 of the then Code of Civil Procedure, it is not incumbent on a person dealing with partners to make them all defendants, and that he is at liberty to sue any one partner as he may choose. It will be noted in tiffs case that the Court expressly applied to partners not only S. 43 of the Contract Act, but also S. 29 of the Code of Civil Procedure, 1882, which relates not to joint, but to several and to joint and several, liability. The same view of the section has been taken by the High Court of Lahore.

Where one partner, having himself settled a decree against the partnership, sues another partner for contribution, he cannot rely upon S. 43 to defeat a plea by the defendant that the partnership has been dissolved, that a suit for accounts of the dissolved partnership is time barred, and that therefore a suit for one item in the account cannot be a subject of claim.

In this connection may be noted O. I, r. 10, of the Code of Civil Procedure, which provides that the Court may order, either of its own motion or on the application of a party to a suit, "that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added." The effect of S. 43 being, according to the above decisions, to render the liability of joint promisors joint and several and to exclude the right of a joint contractor to be sued along with his co-contractors, the provisions of O. I, r. 6, are applicable to the case, and the promisee is at liberty to sue any one or more of the joint promisors. But this right is distinct from, and does not affect, the right of a defendant to apply to the Court under O. 1, rule 10, of the Code to have his co-contractor added as a party. But such an application, it is conceived, can be sustained not on the ground that the joint contractor "ought to have been joined" as defendant, but only under the latter branch of the section, if the Court considers it necessary to do so.

Co-heirs.---This section speaks of two or more persons making a joint promise, and it has no application where parties become jointly interested by operation of law in a contract made by a single person. Hence the section does not apply to the case of several heirs of the original debtor, and they all must be joined as parties to the suit.

Co-tenants.---Each of a number of co-tenants is under S. 43 separately liable to the landlord for the whole rent.

Joint tenants are joint promisors; therefore the liability is only to contribute to the performance of the promise. Hence if one of several persons jointly liable for a debt is sued, and is compelled to satisfy the debt and the costs of the suit, he can only call on the others to contribute in respect of the debt, and not in respect of the costs.

When liability to contribute arises.---In a case decided before the enactment of the Contract Act, it was held that the mere existence of a decree against one of several joint debtors does not afford ground for a suit for contribution against the other debtors. "Until he has discharged that which he says ought to be treated as a common burden, or at any rate done something towards the discharge of it, he cannot say that there is anything of which he has relieved his co-debtors, and which he can call upon them to share with him". And the law under the Contract Act would appear to be the same; see illustrations to the section. If one of the persons liable to contribute is not in a position to pay his share, then that amount should be divided between the others only in the proportion of the benefit each has received. A joint promisor can sue another joint promisor for contribution, even though the claim of the creditor against the latter was time barred.

Contribution as between judgment debtors.---The question as to whether, as between persons against whom a joint decree has been passed, there is any right of contribution at all depends upon the question whether the defendants in the former suit were wrong-doers in the sense that they knew or ought to have known that they were doing an illegal or wrongful act. In that case no suit for contribution will lie. Thus where a decree for costs against two defendants jointly was executed against one of them, who had set up a false defence in the suit in collusion with the other, and the former sued the latter for contribution, it was held that the Suit would not lie.

A Full Bench of the Allahabad High Court, has considered that in exercising its power to proceed in accordance with the rules of justice, equity and good. conscience, the Court cannot afford to ignore the extent to which the common law has been abrogated by statute.

Contribution between mortgagors.---As the rights of one of joint mortgagors, who has redeemed the mortgage, are specifically dealt with in S. 92 of the Transfer of Property Act, S. 43 of the Contract Act has no application.

Debtors' Relief Act.---Where two out of three judgment-debtors were discharged from their debt under a Relief of Indebtedness Act, and the decree was executed against the remaining debtor, the latter was held entitled to contribution from the other two.

Partner contracting on behalf of the firm---if partner alone can be sued on the contract---O. 40 R. I, C.P.C. considered. Held; Under Section 43 of the Contract Act in a suit upon a contract made by a partner on behalf of a partnership, the promisee can compel all or any of the partners to perform the whole of the promise. My attention was drawn to the provision of Order XXX, Rule I, C.P.C. to show that the mode to file a suit against the firm is to sue in the name of the firm. But it is only a procedural law and does not in any way affect the substantive law laid down in the Contract Act.

S. 43, Explanation---Payment made by insurer on behalf of insured---Recovery---Consignment shipped in good order and condition on board vessel belonging to first defendant, second defendant being their agent---Consignment insured with plaintiffs and when discharged at Port found shor and in damaged condition---Consignee making claim (for loss suffered) from defendants, and lodging claim with plaintiffs under Insurance policy---Plaintiff paying claim under letter of subrogation on defendants failing to settle claim---Plaintiffs filing suit under contract of freightment---Held, from affidavit, Insurance policy, Marine Survey Report, Letter of Subrogation (executed and delivered by consignee to plaintiff) and Marine Claim Voucher corroborated by facts, plaintiffs proved their case against first defendant.

44. Effect of release of one joint promisor. Where two or more persons have made a joint promise, a release of one of such joint promisors by the promisee does not discharge the other joint promisor or joint promisors ;neither does it free the joint promisor so released from responsibility to the other joint promisor or joint promisors.

This section applies equally to a release given before or after breach.

The principle of this section has also been applied to judgment debts. It has thus been held that a release by a decree holder of some of the joint judgment debtors from liability under the decree does not operate as a release of the other judgment debtors.

S. 44 and Sale of Goods Act (III of 1930), S. 44---Breach of contract---Damages---Contract for sale conditioned on supply of "bardana" and deputation of representative of appellants at time of weighment of goods---Appellants failing to depute their representative to enable respondents to start weightment and offer delivery of goods---Breach having been committed by appellants, respondents, held, entitled to claim damages.

45. Devolution of joint rights. When a person has made a promise to two or more persons jointly, then, unless a contrary intentions appears from the contract, the right to claim performance rests, as between him and them, with them during their joint lives, and, after the death of any of them, with the representative of such deceased person jointly with the survivor or survivors, and, after the death of the last survivor, with the representatives of all jointly.

A, in consideration of 5,000 rupees lent to him by B, and C, promises B, and C, jointly to repay them that sum with interest on a day specified. B dies. The right to claim performance rests with B's representatives jointly with C during C's life, and after the death of C with representatives of B and C jointly.

Promise to two or more persons Jointly.---This section applies to all joint promisees whether they be partners co-sharers. There is nothing in this enactment to show what happens to a single right when the owner of it dies, and several persons become entitled to it. In such a case, it has been held that all of them must join in a suit to enforce the right, and if any of them refuses to join as plaintiff, he must be added as a defendant. Obviously joint promisees cannot divide the debt among themselves and sue severally for the portions.

It has been held that a sole surviving trustee can sue to recover arrears of rent. This is in accordance with S. 44 of the Trusts Act, 1882. That the rule of survivorship should apply to trustees, and that the authority should devolve upon the survivor have always, from the earliest times, been fundamental principles of the law of trusts.

Right of performance or promises during joint lives.---As the right to claim performance of a promise in the case of joint promisees rests with them all during their joint lives, it follows that all the joint promisees should sue upon the promise. Similarly if a suit is instituted against a debtor in his individual capacity, he cannot set off a debt owed jointly to him by the creditor. If a suit is brought by some of the joint promisees only, and the other promisees are subsequently added as plaintiffs, whether on objection taken by the defendant or by the Court of its own motion, the whole suit will be dismissed if it is at that time barred by limitation as regards the other promisees.

With regard to partnership suits the Code of Civil Procedure, 1908 O. 30, r. 4, provides as follows:---

"(1) Notwithstanding anything contained in section 45 of the Indian Contract Act, 1872, where two or more parsons may sue or be sued in the name of a firm under the foregoing provisions and any of such persons dies, whether before the institution or during the pendency of any suit, it shall not be necessary to join the legal representative of the deceased as a party to the suit."

"(2) Nothing in sub-rule (1) shall limit or otherwise affect any right which the legal representative of the deceased may have (a) to apply to be made a party to the suit, or (b) to enforce. any claim against the survivor or survivors."

Observe that sub-rule (1) applies only where the firm, named as such, is a party to the suit. It does not enable one of several co-contractors to sue in his own name alone. Where a suit was brought in a firm-name for an alleged debt to the firm, and the Court doubted whether the firm was proved to exist, but was clear that, if it did, no contract with it was shown, so that the name of the firm was in effect struck out of the suit, one of the alleged partners (who was already a party) claimed to carry on the suit, taking advantage of the above rule, in his own name without joining his co-contractor's, and this was rightly disallowed.

Validity of discharge by one of several joint promisees.---See notes under the same head to S. 38 (above).

Suit by a surviving partner.---There is an equitable exception, founded on mercantile custom, as to debts due to partners; but even in this case, though the right of the deceased partner devolves on his executor, the remedy survives to his companion, who alone must enforce the right by action, and will be liable, on recovery, to account to the executor or administrator for the share of the deceased. The present section extends the mercantile rule of substantive right to all cases of joint contracts. But it does not follow that it was intended to alter the rules of procedure in cases where the mercantile rule of substance was already admitted. It seems therefore to be the better opinion that the representatives of a deceased partner are not necessary parties to a suit for the recovery of a debt which accrues due to the partnership in the life time of the deceased. It has been so laid down by the High Courts of Allahabad, Bombay, Madras and Lahore; but the contrary has been maintained by the Calcutta High Court.

The case is not literally covered by S. 47 of the Partnership Act (formerly S. 263 of the Contract Act), but it may be held that a contrary intention within the meaning of the present section sufficiently appears from the nature of the transaction when it is once ascertained to be a partnership transaction, regard being had to the uniform and well-understood course of practice.

With regard to the supposed anomaly, it disappears when we remember that in mercantile usage the firm is regarded as a person distinct from the individual partners so long as the partnership exists and is not fully wound up; and this view is now to a certain extent recognised by allowing actions to be brought by and against partners in the name of the firm. Very much the same procedure has been introduced by the Code of Civil Procedure, 1908.

In so far as the firm is treated like a person, the executors of a deceased partner are no more appropriate parties to the recovery of a partnership debt than the executors of a deceased shareholder to the recovery of a debt due to an incorporated company.

Deceased partner's estate.---The High Court of Bombay has decided, after full examination of the Rule and the present section of Act in the light of both Indian and English authorities, that where a partner has died before the commencement of a suit against the firm, the Rule does not enable the plaintiff to make the deceased partner's separate estate liable without adding his legal representatives as parties.

Survivorship in case of Government Securities.---The Securities Act, 1920 (X of 1920), S. 4 runs as follows:---

"4. (1) Notwithstanding anything in section 45 of the Indian Contract Act, 1872.

(a) when a Government security is payable to two or more persons jointly, and either or any of them dies, the security shall be payable to the survivor or survivors of those persons, and

(b) when a Government security is payable to two or more persons severally, and either or any of them dies, the security shall be payable to the survivor or survivors of those persons, or to the representative of the deceased, or to any of them.

(2) This section shall apply whether such death occurred or occurs before or after this Act comes into force.

(3) Nothing herein contained shall affect any claim which any representatives of a deceased person may have against the survivor or survivors under or in respect of any security to which sub-section (1) applies."

More than one promisee---Rights of promisees---One of them cannot alone bring a suit on the contract. Under section 45 of the Contract Act the right to claim performance of a promise in the case of joint promisees rest with them during their lifetime and one promisee alone cannot maintain a claim against the promiser in respect of a contract entered into by them. Therefore a decree for damage on account of breach of contract could not be given to one of the promisees when the other joint promisee has not been joined in the suit.

Contract with a firm---Manifests, per se, a contrary intention within meaning of S. 45---Dissolved firm or any of its former partners---May sue to recover property of dissolved firm without joining all partners.

S. 45---Contract with firm---Claim on contract may be made by the firm.

"Engagement."---The word "engagement" in this section is a survival from the language of the Original draft, in which, for some reason not easy to understand, it is constantly used instead of "agreement" or "promise." Here it is synonymous with "promise".

Reasonable time.---It is difficult to understand why decisions should be reported on the question of what is a reasonable time, which is declared by the Act itself to be always a question of fact; but, having been reported, they must be mentioned. Where the defendants agreed to supply coal to the plaintiffs from time to time, as required by the plaintiffs, on reasonable notice given to them, a notice given by the plaintiffs on the 22nd July, 1898, for the supply of 2,648 tons of coal on or before 31st August, 1898, was held not to be reasonable. Jenkins C.J. said: "Perhaps it might have been physically possible for the defendants to carry out such an order, but it would clearly have required an effort which the plaintiffs had no right to demand. I do not think that a notice involving such an effort from business men with innumerable other matters to attend to can be held to be such a reasonable notice as was intended by both parties when this document was given." Where the defendant agreed to discharge a debt due by the plaintiff to a third party and in default to pay to the plaintiff such damages as he might sustain, and no time was fixed for the performance of the obligation, it was held that the failure of the defendant to perform it for a period of three years amounted to a breach of the contract, as that was a sufficient and reasonable time for performance.

Ss. 46, 73---Breach of contract---Party not bound to allow other party time to perform the contract even when time is not the essence of the Contract---Damages. The maps printed by the defendant under the contract were not according to specification and were rejected by the plaintiff. The plaintiff did not allow the defendant to print fresh maps, and claimed damages.

Held; if goods are not according to specification, the buyer can reject them and that with his rejection the contract comes to an end.

The plaintiff, therefore, had a right of repudiating the contract and no question of reprint arises.

As the plaintiff did not suffer ally loss and got the maps printed else where.

Held; we have no evidence of my "expense" having been incurred but there can be no doubt that it is troublesome and inconvenient for a person to cancel one contract and enter into another. If each time that the plaintiff entered into such a contract, he had to rescind it two months later because the goods were not according to specification on the balance of a whole year he will have entered into six contracts and made no profits. It is not easy to assess the pecuniary value of an inconvenience, but where the defendant was to get Rs. 700 for the work and the plaintiff could be reasonably expected, as in the case of the West Punjab map, to sell it at double the cost price, a sum of Rs. 200 for inconvenience would certainly not be excessive.

S. 46---Sale of land---Time is not of the essence of the contract of sale. Ordinarily time is not of the essence of the contract in an agreement for sale of land.

47. Time and place for performance of promise where time is specified and no application to be made.---When a promise is to be performed on a certain day, and the promisor has under-taken to perform it without application by the promisee, the promisor may perform it at any time during the usual hours of business on such day and at the place at which the promise ought to be performed.

Common Law rule.---This section, with the illustration, simplifies the rule. According to the Common Law, the illustration would have run thus ;"B, is not bound to be at the warehouse to receive the goods after the usual hours of business, and if he is not there A has not performed his promise. If B is there and could receive the goods before midnight, but' refuses to do so, A has performed his promise."

Question of fact---Question whether there was a concluded contract, held, always question of fact and has to be inferred from evidence led and documents produced by parties.

Absence of time---Mere absence of time in fulfillment of contract, held, does not rob contract of its basic characteristics.

Time cannot be made essence of contract by unilateral action---Whenever time made essence of contract, court, held, to look into circumstances of time proposed by one or other party reasonable one and particularly higher duty devolves where subject-matter is substantial and very valuable.

Time essence of contract--In cases of sale of land, a party can make time essence of contract but only by giving a notice it) other side, in case that other side is guilty of undue delay in performance of contract in a reasonable time.

48. Application for performance on certain day to be at proper time and place.----When a promise is to be performed on a certain day, and the promisor has not undertaken to perform it without application by the promisee, it is the duty of the promisee to apply for performance at a proper place and within the usual hours of business.

Explanation.---The question "what is a proper time and place" is, in each particular case, a question of fact.

The proper place will, of course, be the place named in the contract, if any. Where more than one place is named, "it is for the person to whom payment is to be made to fix the place at which he will be paid; until he has selected the place at which he will be paid there can be no default." The English decision from which we quote would presumably be followed here.

Agreement to sell immovable property within stipulated time---In case of non-execution of sale deed within stipulated time, option is given to promisee (purchaser) to rescind contract---Promisor (vendor) does not have choice of rescinding contract in such case.

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