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Judgment
Mr. Krishnaswami Aiyar contended that though the 2nd defendant was competent to assign his rights under the contract to the 1st defendant he
could not divest himself of liability to the plaintiff, and consequently that the plaintiff was not entitled to put an end to the contract on the ground of
the assignment. But assuming that to be so without accepting the argument, the 2nd defendant has here admittedly done more than merely assign
his rights to the 1st defendant; he has repudiated his own liability and given notice to the plaintiff that he will no longer be liable for the performance
of the contract. Mr. Sundara Aiyar relies upon this repudiation as justifying the rescission of the contract by the plaintiff, and we think he is right.
It is argued on behalf of the 1st defendant that inasmuch as the liability of joint promisors is made by the Indian Contract Act joint and several
(vide Section 43) the repudiation of the contract by one of such promisors will not entitle the promisee to rescind the contract as against the others.
We are unable to accede this argument. The fact that the promisee is entitled at his option to require one of the promisors to perform the
contract does not involve the position that the contract is a separate contract with each promisor. The plaintiff in the present case entered into a
single and indivisible contract with the two defendants. Their liability, though several, is also joint, and if the plaintiff is not entitled to rescind, he is
required to carry out a contract into which he did not enter--a contract in which there is no longer a joint liability on the promisors.
In these circumstances, we think the repudiation by the 2nd defendant entitled the plaintiff to put an end to the contract.
As regards the nature of the contract in question, we think that it is founded on personal confidence between the plaintiff and the organizers of
the Kuri, the 1st and 2nd defendants, and is not a contract which, in the contemplation of the parties, was to be performed by deputy, and that
being so it cannot, as we think was conceded, be as signed.
We dismiss the appeal with costs.