Parties to a contract can terminate for non-delivery only if it frustrates the entire contract's purpose; partial non-delivery does not suffice.

JUDGMENT

1. In this appeal the plaintiffs are the appellants from a judgment of Kumaraswami Sastri, J. whereby he awarded damages in respect of the bales of yarn part of the subject-matter of the contract in question Exhibit A. The appellants' complaint is that the learned Judge did not award them damages on eight bales.

2. The contract, Exhibit A, provides, inter alia, that the buyer (the defendant) should purchase from the sellers (plaintiffs) certain goods for July, August and September, 1918, the goods to be delivered on steamer at Madras, and by the particulars annexed to the printed contract we find that the goods referred to “ten bales of 400 lbs. each Japan 44 mull yarn, warship ticket, delivery in three shipments commencing July 1918 at Japan, green tie.” The original of these particulars which are written in ink contains the word “equal” between the words “three shipments” crossed out.

3. Now it is strenuously contended for the appellants that this contract was conditional on and subject to a further contract which the plaintiffs entered into with a firm in Japan to supply them with certain bales of this yarn of which the ten bales, the subject of the present contract, formed a part. No yarn was shipped in the months of July and August. The ten bales were in fact shipped together in September 1918 and tendered to the defendant who had just before the tender to him, i.e., on the 6th of November, 1918, given a notice to the plaintiffs through his Vakil putting an end to the contract. “The reason why the learned Judge found that the defendant had committed a breach with regard to three bales only was that he found, on a construction of Exhibits J, K and L, that the plaintiff had allocated seven bales to the shipments due in July and August which left only three bales due for September.

4. Now, the only reference to Japan in Exhibit A is contained in the written “particulars” above set out. But the plaintiffs contend that onthe evidence the defendant knew of the Japanese contract and in fact consented that the plaintiffs should only be bound to deliver the bales as and when they obtained them from Japan. In our opinion, there is not the slightest ground for this contention. As pointed out, there is not a word in the contract Exhibit A which would support it, and all that the plaintiffs Manager says in his evidence is that he “told him (i.e., defendant) the details.” The said details would seem to be contained in a letter, Exhibit F, by which the plaintiffs agreed to buy from the Japanese firm 75 bales of this particular yarn. This, on the plaintiffs' Manager's evidence, was not shown to the defendant. Although he says he gave him the contents of the whole letter which could hardly be the case because, as the plaintiffs' learned Vakil admitted, he would, not disclose the price at which he was buying from Japan as it was considerably, less than the price at which he was selling to the defendant. The defendant says that the plaintiffs' Manager told him the goods were goods that were coming from Japan and that they had been purchased from a Japanese firm and produced at the Fuzigatu Mill. The learned Vakil for the appellants relies on clause 3 of the contract, Exhibit A, as showing that it was dependent upon the Japanese contract but the clause does not certainly warrant this interpretation. It provides that the buyer should accept any quantity of goods shipped at the convenience of the sellers whether in whole or in part compliance of this contract, etc. Now as already pointed out, the contract is for three shipments and all that the clause 3 means is that the sellers may distribute the ten b