The principle of repudiation of a contract and its legal consequences, as established in Braithwaite's case and Section 39 of the Contract Act, were central to the court's decision.

Odgers, J.

1. This is a suit for damages for breach of contract. The defendants contracted with the plaintiffs for the purchase of 25 bales of yarn of certain quality, orders for which had already been placed by the plaintiffs Bombay agents with the agent of Peolad Factory at Bombay. The price was Rs. 21-8-0 per box and each bale was to contain 20 boxes of 10 lbs each. The Varthamanam letter, Ex. A, is dated 27th August 1918. The plaintiffs allege that the defendants accepted delivery of 5 bales in accordance with the plaintiffs arrival advice on the 2nd September 1918, but they afterwards did not pay for or take delivery of the remainder of the goods. The plaintiffs claim Rs. 3,405-15-8 or the difference between the contract and the market prices prevailing at the dates of the breaches. The defendants in their written statement, rely on time as being of the essence of the contract, and they say also that the plaintiffs were not justified in selling the unaccepted goods against the defendants which they did on the 27th January 1919, there having been a breach on 13th October 1918. The written statement was filed on 12th April 1919. On the 11th October 1919 an additional written statement was put in consequence, it is said, of an examination caused to be made by the defendants of small quantity of the yarn contained in the bales accepted by them. In the additional written statement they plead that the goods offered by the plaintiff weighed only 8 1/2 lbs. as against 10, that the yarn was not No. 20, and that the dye was not fast. For these reasons they were tot bound to receive the bales.

2. The only issue that we are really concerned with in the case is Issue No. 5: whether all or any of the plaintiffs offers to perform the contract were made within a reasonable time in accordance with the terms of the contract and valid.

3. This issue inter alia was settled on the 3rd September 1919 and no additional or amended issue seems to have been thought necessary in consequence of the additional written statement of the defendants. This, as far as I can see, seems to have been completely neglected throughout. The Additional Subordinate Judge in fact notices that no supplementary written statement was filed by the defendants with reference to the alternative claim to damages which the plaintiffs were allowed to add to para. 10 of the plaint on 9th October 1920. The case on which the defendants went to trial throughout was that the plaintiffs should have delivered the 25 bales within a month. This has been found against by both the Courts and is of course, binding on us in second appeal. The Additional Subordinate Judge, however, held that the plaintiffs were bound to prove that the goods tendered and refused wore in accordance with the contract in respect of quality and that, therefore, this, not having been proved, all that the defendants could recover in consequence of the breach committed by the plaintiffs was the amount of their advance.

4. The learned District Judge, on the other hand, held that, on the authority of Braithwaite v. Foreign Hardwood Co. [1905] 2 K.B. 543, the Subordinate Judge was not justified in allowing the 5th issue to be taken and in giving judgment for the defendants upon it. The District Judge found that the defendants absolutely repudiated the contract by Ex. F and that by that repudiation they absolved the plaintiffs from proving any of the conditions precedent, e.g., as to quality of the goods. (His lordship examined the evidence as regards the repudiation of the contract and proceeded.) I think, therefore, the learned District Judge was right in holding that there was "a repudiation of the contract by Ex. F, Now the question is: Was he right in refusing to permit the defendants to take advantage of any defects such as non-performance of the conditions precedent to the contract?

5. A long argument has been addressed to us on the principle of Braithwaites case [1905] 2 K.B. 543 and as to the exact princip