Earl Loreburn :-

This is a dispute arising out of contract between Messrs.

Foley Brothers and Messrs. McIlwee Sons.

Messrs. McIlwee, who are the plaintiffs, agreed to construct a tunnel some 5 miles long. It would be necessary to make the tunnel from both ends.

In September 1914 a quarrel arose between Mr. Dennis, who was acting on behalf of Messrs. Poley Brothers, and Mr. McIlwee, acting on behalf of his firm. Mr. Dennis in his haste sent a notice cancelling, at all events, part of the contract, and he also thereupon stopped the supply of air which was necessary to enable the work to continue. After some fruitless interviews, Mr. McIlwee broke up his staff, and treated the contract as ended, inasmuch as the action and the notice of Mr. Dennis went to the very root of the contract. Their Lordships feel no doubt that the letter of the 24th September containing the notice and the action of Messrs. Foley Brothers through Mr. Dennis justified Messrs. McIlwee in treating the contract as having been repudiated in respect of matters going to the root of it. The work was in fact discontinued by Messrs, McIlwee and Co. because of the action of and the notice that had been given by Mr. Dennis.

An