Thomson LP:

I have had the advantage of reading the judgement of Dato' Syed Sheh Barakbah with which I am in entire agreement.

I do not think we are really concerned with the construction of the agreement between the parties as embodied in the sub-lease of 3 January, 1961.

The matter is to be decided on the pleadings (for there is no other material) and on the pleadings it is clear that the plaintiffs surrendered the sub-lease and that the defendant accepted the surrender.

At the time of the surrender the contract between the parties was still executory on both sides since the term of the lease had not expired. In the circumstances the surrender of the lease puts an end to it by an agreement which in itself was binding on each of the parties, the consideration passing to each of the parties being found in the abandonment by the other of his right to performance. In the circumstances the original contract embodied in the lease was at an end and, no breach having been alleged by either side, neither could then be under any contractual obligation to the other. Had there been complete failure of consideration, that is to say in simple terms had the plaintiffs, the lessees, had nothing for their money no doubt they would have had an action for what they had paid whether by way of premium or advance of tribute as for money had and received. There had, however, been no such complete failure of consideration. They had had something for the money and in the circumstances for the reasons set out by my Lord they can recover nothing.

Had the parties seen fit to do so they could have come to some agreement as to the terms on which the contract was to be rescinded. They have not done so and that is the end of the matter.

I also would allow the appeal with costs.

JUDGMENT

Barakbah (Malaya) CJ:

The appellant (defendant) was the registered lessee of a mining land held under Mining Leases Nos: 3910 and 4092 Lots 711 and 70 in the Mukim of Kerling, district of Ulu Selangor. By a sub-lease Presentation No. 1649 vol 11 Folio 12 dated the 3 of January 1961, he sub-leased a part of the said land to the respondents (plaintiffs) and one Chong Ewe San for the purpose of mining.

It was provided by the said sub-lease that the respondents and the said Chong Ewe San should pay to the appellant a sum of $7,500 to be treated as advance payment of tribute payable by the respondents to the appellant and that the said sum was to be repaid by the appellant by way of deductions by the respondents of 250f the tribute payable under the said sub-lease until such time as the said sum had been re-paid to them. The said sum was paid by the respondents to the appellant. The said Ch'ng Ewe San did not make any payment.

In or about July 1961 the respondents surrendered the said sub-lease to the appellant and no further payments of tribute were thereafter payable to the appellant. At the time of the surrender the appellant had paid to the respondents by way of deductions a sum of $445.27 leaving a balance of $7,054.73. The appellant failed to repay the balance and the respondents filed an action in Court claiming the said amount with interests and costs. On 5 November judgment was entered for the respondents and the appellant now appeals to this Court against the said decision.

The agreement was for a period of three years. No evidence was adduced on either side on the facts and it was not disputed that the respondents surrendered the sub-lease with the consent of the appellant before the expiration of the said period. This amounted to a recission by mutual consent. The agreement had come to an end and therefore there was no further claim on it. In the case of Dairies v. Street 171 ER 1084 it was held that if a contract was broken, an action for money had and received could not be brought by a person who had paid money under such contract, but he must bring an action for the breach of contract; but, in cases where the contract was rescinded and put an e