MANINDRA CHANDRA NANDY Vs. ASWINI KUMAR ACHARYYA

JUDGEMENT

(1.) This is an appeal from the judgment of Mr. Justice Rankin in a suit for recovery of money The plaintiff-respondent makes his claim in connection with a contract, dated the 22nd December, 19.5, entered into by the defendants with the Corporation of Calcutta for the supply of stone metal. The plaintiff was not a party to this contrast, but his case is that the defendants agreed to pay him, (1) a sum of Rs. 20,000 if he could secure acceptance pf their offer by the Corporation, and defrayed, at his own risk, the preliminary expenses in connection therewith; (2) brokerage at two annas for every hundred cubic feet of stone metal delivered to the Corporation during the subsistence of the contract, and (3) two-fifths share of the profits of the business which was to be placed under his management for the same period. The plaintiff alleges that he was paid Rs. 5,000 by way of preliminary expenses, but has received nothing under the other two heads. The contract with the Corporation was to be in operation for twenty years, and twenty lakhs cubic feet of stone metal were to be supplied annually. Consequently, the plaintiff would be entitled to reactive Rs. 2,500 a year for twenty years on account of brokerage. The profits are calculated by the plaintiff at Rs. 50,000 a year; on this basis, his share of profits would be Rs. 20,000 a year for twenty years. The grievance of the plaintiff is that, although it was mainly through his efforts that the defendants were able to secure the contract, they have repudiated the arrangement made with him and have falsely denied that be was of any assistance to them in the matter. He accordingly claims damages for breach of contract, although no transactions have yet taken place between the defendants and the Corporation; his claim is for nearly three lakhs of rupees; namely, Rs. 15,000 for preliminary expenses, Rs. 50,000 for loss of brokerage during twenty years, and Rs. 2,29,398 6-5 for loss of profits during the same period. Mr. Justice Rankin has given him a decree for Rs. 57,000 in all, with costs on Scale No. 3, that is, Rs. 15,000 for preliminary expenses, Rs. 20,000 for brokerage and Rs. 22,000 on account of loss of profits. The defendants have appealed to this Court, and have disputed the claim as greatly exaggerated, if not entirely unfounded. They have also urged that costs on Scale No. 3 should not have been allowed. In our opinion, the appeal must fail on the merits, but the order for costs cannot be supported.

(2.) As regards the first point, namely, the claim for preliminary expenses, the substantial point in controversy is, whether the defendants agreed to pay the plaintiff a sum of Rs. 20,000 for preliminary expenses, or only RUCJ sum not exceeding Rs. 20,000 as the plaintiff might find it actually necessary to spend on account of preliminary expenses. Mr. Justice Rankin has accepted the story of the plaintiff that the defendants agreed to pay him its. 20,000 provided the contract was secured, and that a art payment of Rs. 5,000 was made. We are not prepared to dissent from this conclusion. In our view, the plaintiff has carried out his part of the bargain, and is entitled to the balance of the sum agreed upon, that is, Rs. 15,000. It has been faintly suggested, however, on behalf pi the appellants that, what is euphemistically sailed preliminary expenses included in a large measure sums of money paid to various influential persona with a view to secure their assistance in the acceptance of the tender of the defendants by the Calcutta Corporation. To put the matter plainly, the imputation is, that this agreement to place Rs. 20,000 at the disposal of the plaintiff for so called preliminary expenses is against public policy. Now, it cannot be disputed that, as was laid down in Ledu v. Hira Lal 29 Ind. Cas. 625 : 21 C.L.J. 687 : 43 C. 115 : 19 C.W.N. 919 and Montefiore v. Menday Motor Components Co. (1918) 2 K.B. 241 : 87 L.J.K.B. 907 : 119 L.T. 340 : 62 S.J. 585 : 34 T.L.R. 463 it is contrary to public policy to induce public officers, for money or other valuable consideration, to use their position and influence to procure a benefit. An agreement of this character holds out an inducement to Public Officers to act with partiality or from corrupt motives or to bias them in the discharge of their official duties; such conduct, if tolerated, would sap the foundation on which official honesty rests and legalise temptations which would lead away from the path of rectitude many an of official who, without Such inducements, might perform his duty, These principles are indisputable: but, in the case before us, the materials on the record are not sufficient to justify the application of these rules. Indeed, the evidence does not appear to have been expressly directed to this point, for the obvious reason that, neither the plaintiff nor the defendants would be over anxious to disclose the alleged secrets. The award of Rs. 15,000 for preliminary expenses must, consequently, be confirmed.

(3.) As regards the second point, the plaintiff claimed Rs. 50,000 as brokerage at the rate of Rs. 2,500 a year for twenty years. Mr. Justice Rankin has awarded Rs. 20,000 only. The defendants contend that the award is excessive, specially as the plaintiff seeks a decree even before the first instalment has become due. Now, there can be no doubt that a breach of contract may take place before the time fixed for performance of the contract has arrived, where, as here, the promisor has repudiated the contract. In Such an event, the promisee may elect to sue him for breach of the contract without waiting for the time fixed for performance. This principle applies where the contract has to be performed in instalments; in such cases, the question may arise, whether the refusal to perform any particular part of the contract amounts to a repudiation of the whole contract or not. No Such question, however, arises in the present case, because the defendants have repudiated in its entirety their arrangement with the plaintiff. The point here, consequently, reduces to the proper mode of assessment of damages in the event of what has sometimes been called--felicitously though, perhaps, not logically anticipatory breach of a contract. Lord Wranbury observed in Bradley v. Newsum Sons & Co. (1919) A.C. 16 at p. 53 : 88 L.J.K.B. 35 : 119 L.T. 238 : 24 Com. Cas. 1 : 14 Asp. M.C. 340 : 34 T.L.R. 613: The expression (anticipatory breaoh of contract) is, I think, unfortunate. In Hochster v. De la Tour (1853) 2 El. & Bl. 678 : 22 L.J.Q.B. 455 : 17 Jur. 972 : 1 W.R. 469 : 22 L.T. (O.S.) 172 : 95 R.R. 747 : 118 E.R. the leading case upon this subject, Lord Campbell made no use of the expression in his judgment. It is used several times by Lord Esher in Johnstone v. Milling (1886) 16 Q.B.D. 460 at p. 473 : 55 L.J.Q.B. 162 : 54 L.T. 629 : 34 W.R. 238 : 50 J.P. 694, but not by either of his colleagues. The words used are, of course, immaterial, unless they lead, in course of time, to an erroneous impression. There can be no breach of an obligation in anticipation. It is no breach not to do an act at a time when its performance is not yet contractually due. If there be a contract to do an act at a future time, and the promisor, before that time arrives, says that when the time does arrive he will not do it, he is repudiating his promise which binds him in the present, but is in no default in not doing an act which is only to be done, in the future. He is recalling or repudiating his promise, and that is wrongful, His breach is a breach of a presently binding promise, not an anticipatory breach of an act to be done in the future. To take Bowen, L.J. s words in Johnstone v. Milling (1886) 16 Q.B.D. 460 at p. 473 : 55 L.J.Q.B. 162 : 54 L.T. 629 : 34 W.R. 238 : 50 J.P. 694, it is a wrongful renunciation of the contractoal relation into which he has entered. The result is, that the other party to the contract has an option either to ignore the repudiation or to avail himself of it. If he does "the latter, it is still, by consensus of the parties, and not by some superior force, that the contract is determined."