Contract-s-Waiver-s-Effect of second agreement relating to same land upon obli-
Rations under the first agreement

Equity-Injunction-Matrdatory--Order to vacate possession of land on a. set
future date

Landlord and Tenant-Covenant of lease-Agreement to replace a cylinder in
the engine of a flour mill-impossibility of perform alice-Performance of
other repairs

Landlord and Tenant-Waste-Voluntary and permissive waste distinguished

I. Where plaintiff has leased a flour mill to defendant for five years,
with a provision that defendant may have the use of the mill free of charge
for ten months following the end of the term if he replaces the cylinder in
the mill's engine during the third year, the failure of defendant to replace
the cylinder deprives him of the right to the extention of the lease even
though performance may be impossible and even though defendant has ex-
pended substantial sums on other improvements to the property.

• Pre-emption Ordinance 1928, s. 16: "A person entitled to a right of pre-
emption loses such right in any of the following cases: (a) if whether verbally
or in writing or by conduct he renounces his right; .... "

1 Order of the District Court confirmed by the High Court, Gezira Province,
on March 31, 1940.

2. Where defendant was claiming a right to an extent ion of a lease to
which he was not entitled the plaintiff was granted an injunction ordering
the defendant to vacate possession uf the property on the date .whcn the
lease was to expire.

3. An agreement providing for the future lease of land to repay a debt
if the debt is not discharged as agreed does not affect the obligations of
the parties under an earlier lease respecting the same land unless the second
agreement expressly so provides.

Action

February 21, 1940. M. Abu Rannat DJ.: This is an action by
the plaintiff claiming damages, and applying for an injunction for
breach of a written contract concerning a flour mill at Hassaheissa.

The undisputed facts of the case are as follows: Plot 1, Block 31
(flour mill) Hassaheissa town, comprising 1,367 square metres, is the
registered freehold property of plaintiff. It is subject to a mortgage
to secure £E.330 in favour of Grassimo A. Contomichalos, which is
repayable by monthly instalments of £E.6.666 m/ms as from July
I, 1936. The defendant is a surety for the payment of this loan.

On July 18, 1935, a written contract was made and signed by
both parties. This contract is known as Exhibit A. Neither party
disputes the contract contents. In pursuance of this agreement the
defendant entered into occupation of the property as tenant, and agreed
to pay £E.79.992 m/ms. It was also arranged that the defendant
should pay the annual rent by monthly instalments of £E.6.666 m/ms
to Mr. Grassimo A. Contomichalos towards settlement of the loan
(£E.330) which is secured by the registered mortgage.

According to clause 4 of the written contract of July 18, 1935, the
defendant undertook to effect all necessary repairs to buildings. The
plaintiff states that defendant failed to carry out the repairs and that
he suffered the walls enclosing the building to fall down. Defendant
admits this fact. The plaintiff also states defendant removed a zinc
shed without his authority. The defendant answered this claim stating
that part of the corrugated iron sheets were sold by plaintiff's brother
who was authorised-6y- plaintiff to sell these sheets and that about
fourteen sheets are now used in part of the flour mill buildings, and
that they were used for improvement of the dwelling house which is
forming part of the buildings.

Apart from express covenant, the question of repairs of rented
premises rests on the doctrine of waste, and a further implied agree-

ment that the tenant shall maintain the property in tenantable manner.
Waste may be voluntary or permissive. The former is damage which
results from tenant's voluntary act, and the latter is damage that results
from tenant's default. Tenants for a term of years are liable for
voluntary waste whether committed by themselves or by someone else
because it amounts to misuse of the property. The defendant admits
permissive waste and promised to repair it and plaintiff accepts this
remedy. The evidence shows that defendant has also committed
voluntary waste by allowing plaintiff's brother to remove the shed and
sell part of the corrugated iron sheets. However, the plaintiff states
he does not want to go on with this part of the claim and therefore
the question of damages in respect of this breach is not considered.

I now come to the most important part of tbe claim. This was
in respect of breach of clause 1 of the contract. Clause 1 of the con-
tract says, inter alia, that if defendant provides a new cylinder to the
engine in 1938 the defendant will be allowed to occupy the mill free
of cost of hire for 10 months from July 15, 1940; clause 5 of the same
agreement says if defendant does not comply with clause 1 he loses
the right to retain, and work the mill for ten months free of charge.

In 1938 the defendant did not obtain a new cylinder. He states
that he did his best to replace the old cylinder by a new one, but he
was unable to do it because of a physical impossibility of performance.
He produced documentary evidence that a new cylinder ean only be
made by the makers in England if measurement of the liner were taken,
and that he discovered that there was a danger of damaging the whole
engine if the liner was removed. He also showed that the cost of a
new cylinder docs not exceed £E.IO. and that he spent £E.49 for
overhauling which was carried out on the best advice obtainable in
the country. The plaintiff produced expert witnesses whose evidence.
shows that the liner can be removed and at least one of these witnesses,
Mr. Hall, states so with certainty .. 'Therefore the question of physical
impossibility as to the removal of the liner is answered in favour of the
plaintiff. But even if there was such difficulty as advocated by de-
fendant, the defendant does not free himself from liability for the
following reasons:

If a person contracts absolutely to do a thing he is not generally
excused because the doing of it is or thereafter becomes impossible.
The defendant made his promise unconditionally; he takes the risk of.
being held liable even though performance should become impossible
by circumstances beyond his control. He has by his own free will

created a duty to supply a new cylinder, and he failed to supply it.
If he wished to protect himself against the consequences of such a
breach, he ought to have provided by exceptions for the happening of
such causes. The defendant did not make the performance condi-
tional upon its continued possibility. If he had done so, and per-
formance became impossible, he would Qave succeeded.

The defendant argues that he has done better than if a new
cylinder was provided in that he effected repairs which made the en-
gine run smoothly and that he paid for these repairs more than was
anticipated by the plaintiff. An express condition must be exactly
complied with. It is not enough to show that the condition has been
nearly complied with or that the other party had got practically all
he required.

The last argument made by defendant is that even if there was
a breach, the plaintiff has waived it by signing a new agreement on
September 9, 1939. This agreement is known as Exhibit B. The
circumstances in which the agreement of September 9, 1939 was written
are as follow: Plaintiff was ill in the hospital. He borrowed £E.l00
from defendant and agreed to give him a mortgage on his property
at Hassaheissa. Clause 2 of this agreement shows that if within two
years the plaintiff failed to pay the principal loan and interest de-
fendant may pay him a further sum of £E.40 and occupy the mill on
the same terms expressed in the agreement of July 18, 1935, i.e., the
defendant accounts for a monthly rent which will be deducted from
the £E.160 until the whole loan is wiped out.

This agreement does not refer to the replacement of the new
cylinder. If the parties really intended to release each other from
their obligations under the former contract, or if they wished to sub-
stitute other obligations for those already existing, they should have
done so expressly. As defendant did not show that there was an ex-
press waiver, he ought to show that the plaintiff by his conduct waived
the breach. Again the evidence shows that defendant came to Has-
saheissa in 1938 and visited the mill, but he did not mention the
question of the new cylinder. Plaintiff was right in not raising the
point in 1938, because there was still time for defendant to complete
performance. In my opinion there was a breach of contract over the
new cylinder clause, and there was also no waiver on the part of
plaintiff.

As regards the remedy, the parties by their own contract pro-
vided that in case of breach defendant should have no right to retain