The Contract Act provisions allow for the recovery of wages for partial performance, contrary to the strict rule of entire indivisible contract from English law.

Sadasiva Aiyar, J.

1. The plaintiff is the petitioner in revision. He brought this Small Cause Suit in the Nilgri Subordinate Judges Court for tb.2 salary due to him from 1st April 1908 to 20th March 1909 at Rs. 18/-a month or Rs. 216/-a year. His engagement was for one year from 1st April 1908 to 31st March 1909. The Subordinate Judge has found that the plaintiff left the defendants service without justification on 20th March 1909. He also found that though the salary-was fixed at Rs. 18/-a month, the engagement was for one full year and his salary was agreed to be payable in a lump sum of Rs. 2l6/-at the end of the year. On these findings he held that according to the rule of law established by English decisions and followed in Dhumee Behara v. Sevenoaks (1886) I.L.R. 13 C. 80, the plaintiff lost all right to wages for the 11 months and 20 days during which he actually worked. The principle of the rule as stated in the English cases is that the contract must be deemed an entire indivisible contract and the performance of the services for the whole time agreed upon was in the nature of a condition precedent to the right to recover even a portion of the wages.

2. "It is a general rule applicable to all contracts, that where the plaintiff has contracted to-do an entire work for a specific sum, he can recover nothing unless the work be done or, it can be shown that it was by the defendants default that the work was incomplete, or that there is something to justify the conclusion that the parties have entered into a fresh contract."

3. The leading English case on this question is Cutter v. Powell (1795) 2 Smiths Leading Cases. vol 11 p. 1. That was the case of a sailor who agreed to serve as second mate for a sum of 30 guineas during the voyage of a ship between" Kingstonjand Liverpool., He did duty as mate between 31st July 1793 and 20th Sep. 1793 bat died daring the voyage and before the ships arrival at Liverpool. The suit was brought in assumpsit for work and labour done by the deceased. The suit was dismissed on the ground that no contract can even be implied making the master liable to pay on a quantum meruit. Lord Kenyon said that the contract was a " kind of insurance." The learned judges who decided the case also put it upon the custom of the commercial world. In the notes to that case also there are learned disquisitions as to whether suits in particular cases lie in indebltatus assumpsii or in quantutn-meruit or in the case and so on. But the learning connected with the nature of the action to be brought is not of much use in these days. Two exceptions are mentioned to the general rule laid down the exception being (a) cases in which the special contract being unperformed a new contract has been implied from the conduct of the parties to pay a remuneration commensurate with the benefit derived from partial performance and (b) where the party to be made liable has absolutely refused to perform or has incapacitated himself from performing his side of the contract,the other party may treat the contract as rescinded and sue for what he has already done under it upon a quantum-meruit. So much for English Law. I am, however, strongly of opinion that in cases between masters and servants, Courts should not be too strict in treating the contracts of service fora certain period and for a certain wages as indivisible unless thenature of the services (like that of a sailor for a particular voyage or a servant engaged for domestic service during particular pilgrimage) raises a strong presumption that the servant was intended not to be entitled to claim wages for broken periods. Even in such cases if the servant was unable to perform his duty through illness or death, I would allow a suit for the value of work actually performed for the broken period. Courts in India are not always bound by the; technicalities of English Law or even by the precedents established by English cases. The Subordinate Judge in this case says that he