Wallis, J.

1. My answer to the reference is that in both the cases put the damages must be ascertained with reference to the date provided for the performance of the contract. When before the date fixed for performance of a contract the promisor refuses to perform it, and the promisee rightly rescinds it under Section 39 of the Indian Contract Act, he is under Section 75 entitled to "compensation for any damage which he has sustained through the non-fulfilment of the contract." This appears to me to be the section applicable to the present case and I think that non-fulfilment of the contract means non-fulfilment at the date specified in the contract, and that, according to the proper construction of the section, compensation is to be ascertained with reference to that date, and not with reference to the date of the act of refusal which gave rise to the right to rescind. At the hearing of the appeal, however, and also at first on this reference, the case was argued as if the suit was one to recover compensation under Section 73 for a breach of contract, the breach in this case being the refusal of the promisor to perform the contract. This, however, is not the way in which th