Judgement Appeal from a judgment and decree of the High Court (February 11, 1916), varying a decree of Greaves J. In January. 1913, under circumstances which appear from the judgment of their Lordships, the appellants sued the respondent in the High Court to recover brokerage which they had earned under an agreement of June 8, 1911, and damages for a wrongful termination of the agreement in August, 1912. The High Court, on an appeal by the respondent, agreed with the trial Judge that the termination of the agreement in August, 1911, was wrongful, and in rejecting a contention on his behalf that the agreement came to an end upon the death of Juggomull on May 31, 1911. On that contention Appellate Court pointed out that the respondent and Juggomull were members of a joint Hindu family, the respondent being Karta, and that the parties, by their course of dealing, must be taken to have treated the agreement of June 8, 1911, as subsisting after that event. The trial Judge] decreed the appellants damages at Rs. 1000 per month for the period to the termination of the five years for which the ^ brokerage agreement had been made. The Appellate Court held that the new agreement of December 2, 1912, which it was not denied was made bona fide, put an end both to the original brokerage agreement and to the agreement with the plaintiffs as under-brokers. 1919. June 19. Dunne K.C. and Sir William Garth K.C. for the appellants. The agreement of December 2, 1912, was not before the trial Judge, and the Appellate Court should not have taken it into consideration. It continued the appointment of the respondent as broker and did not put an end to the original agreement. The respondent could not voluntarily put an end to that agreement to the prejudice of the appellants. In any case they could only do so under its terms by a three months notice, and the appellants are therefore entitled to three months further earnings. [Reference was made to Brace v. Colder. ([ 1898] 2 Q. B. 253.)] Further, the appellants should not have been held liable for losses incurred after the business had been wrongly taken out of their control. De Gruyther K. C., and Kenworthy Brown for the respondent. [Reference was made to Brace v. Colder. ([ 1898] 2 Q. B. 253.)] Further, the appellants should not have been held liable for losses incurred after the business had been wrongly taken out of their control. De Gruyther K. C., and Kenworthy Brown for the respondent. The Appellate Court in considering the damages rightly took into account the agreement of December 2, 1912, and it was rightly held that that agreement differed so materially from the original brokerage agreement that it terminated it. The new agreement was made bona fide. There was no implied agreement by the respondent to continue the original agreement Cowasjee Nanabhoy v. Lallbhoy Vullubhoy. (( 1876) L. R. 3 I. A. 200.) The deduction to be made for losses was a question of fact, and was rightly determined by the Appellate Court. July 8. The judgment of their Lordships was delivered by LORD BUCKMASTER. By an agreement dated May 31, 1911, David Sassoon & Co., Ld«, appointed Raghumull and Juggomull, of the firm of Madhoram Hurdeodas, to be their brokers for the sale and purchase of sugar for a period of five years from the date of the agreement, or for such further period as should mutually be agreed, unless the agreement should be sooner determined under provisions therein contained. The agreement contained a clause for the appointment of under-brokers in the following terms "2. The brokers shall employ such under-brokers as shall or may be necessary or required for the purposes of the companys sugar business, and that such under-brokers shall be under the control of the company, and the brokers shall from time to time be responsible for the fidelity of the said under-brokers and dismiss such of the under-brokers as the company may direct, and employ others in their place," and also a clause imperfectly worded, but intended to provide, and accepted by all parties as providing, that the agreement might be ended by three calendar months notice on either side. On June 8, 1911, the brokers so constituted entered into an agreement with the appellants constituting them under-brokers. On June 8, 1911, the brokers so constituted entered into an agreement with the appellants constituting them under-brokers. This agreement recited the original contract, and effected the appointment by clause 1 in these words " The brokers shall appoint, and do hereby appoint, the under-brokers, and the under-brokers do hereby agree to become and act as under-brokers for the said brokers for the sale and purchase of sugar in respect of all contracts to be entered into by them for or on behalf of the said David Sassoon and Company, Limited, under the aforesaid agreement and during the subsistence of the said agreement, or for such further period as the said brokers and the said company may further extend." The other clauses of the agreement followed the provisions of the earlier contract, but contain nothing material to the real question raised by this appeal. On April 27, 1912, Juggomull died and, though it was at first urged that the contract was thereby ended, this point was decided against the respondent and was not raised before their Lordships. On May 24, 1912, a new agreement appears to have been made between Sassoon & Co. and the respondent, the surviving partner of the firm of Madhoram Hurdeodas, but it has not been produced, and their Lordships are ignorant of its contents. On August 12, 1912, the appellants contract was summarily ended by the respondent on the ground of alleged breaches of duty. On December 2, 1912, a new agreement was entered into between David Sassoon & Co. and the respondent differing in many material respects from the contract of May 31, 1911, and appointing the respondent broker in the same business for a new period of five years on different terms. On July 28, 1913, the appellants instituted the proceedings out of which this appeal has arisen, claiming against the respondent damages for wrongful termination of their agency, and accounts both under the written contract and under a verbal contract to which further reference will be made. A defence was put forward that the dismissal was justified, but this wholly failed, and the only questions now open are (1.) the measure of damages for wrongful dismissal ; (2.) as to the basis on which accounts ought to be directed for moneys due under the contract ; and (3.) a subsidiary claim in respect of the verbal agreement. A defence was put forward that the dismissal was justified, but this wholly failed, and the only questions now open are (1.) the measure of damages for wrongful dismissal ; (2.) as to the basis on which accounts ought to be directed for moneys due under the contract ; and (3.) a subsidiary claim in respect of the verbal agreement. The questions are independent of each other and need separate consideration. With regard to the damages, the learned trial Judge thought that, the period of the contract being five years, the appellants were entitled to compensation for loss of employment upon that footing, and the gross earnings being admitted as Rs. 30,000 for the fourteen months during which the agreement had run, after allowing for expenses, he fixed Rs. 1000 a month as the average net profit. This would produce Rs. 46,000 for forty-six months, the residue of the term, and from this sum he deducted Rs. 16,000 as prospective earnings, leaving Rs. 30,000 as the estimated damage. It is true that in arriving at this conclusion he had not before him the critical contract of December 2, 1912, and it is impossible and unnecessary to conjecture why a document of such importance was not forthcoming at the trial. It was, however, produced before the High Court on appeal, who held that this contract necessarily ended the original appointment of the respondents firm as brokers to Sassoon & Co., and that with its termination the appellants contract likewise came to an end. They altered the rate of prospective earnings per month to Rs. 1250, and allowed this sum up to December 2, 1912. In so deciding, their Lordships think that the High Court rightly interpreted the bargain between the parties and awarded damages on the correct principle. The contract of June 8, 1911, was a contract which in its very nature as well as in its terms depends for its existence and duration upon the continuance of the contract of May 31, 1911. In so deciding, their Lordships think that the High Court rightly interpreted the bargain between the parties and awarded damages on the correct principle. The contract of June 8, 1911, was a contract which in its very nature as well as in its terms depends for its existence and duration upon the continuance of the contract of May 31, 1911. It is stated that the appointment it effects is for " the sale and purchase of sugar in respect of all contracts to be entered into by them [i.e., the respondent] on behalf of the said David Sassoon & Co., Ld., under the aforesaid agreement [i.e., the agreement of May 31, 1911] and during the subsistence of the said agreement, or for such further period as the said brokers and the said company may further extend." Even apart from the words which make the period of the contract identical with that of the covering authority, the mere fact that the appointment is an appointment to act as brokers in respect of the sugar bought and sold by the respondents firm under their bargain with Sassoon & Co., shows that when they ceased to buy and sell sugar in accordance with that authority, the appointment of the appellants as brokers would necessarily come to an end. It is not necessary to consider what the position would be if the original agreement were ended simply as a means of defeating the appellants rights; for no such case is urged, and the question does not arise. That the contract of December 2, 1912, cannot be treated as an extension of the original contract, but is a completely new bargain, which in itself terminated the original contract, is plain ; for the terms of the two contracts differ in many important respects, and most notably in the amounts of commission to be paid. Whether or no this latter contract followed a termination by three months notice of the earlier contract pursuant to the provisions which it contained is immaterial. The provision as to notice was a means by which either party to the contract might bring it to a close against the will of the other. Whether or no this latter contract followed a termination by three months notice of the earlier contract pursuant to the provisions which it contained is immaterial. The provision as to notice was a means by which either party to the contract might bring it to a close against the will of the other. It was always competent to them both by agreement to end it when they pleased ; and whether it was ended by one means or the other, no breach has been committed of the respondents duties under his contract with the appellants, since that contract never expressly created nor impliedly involved any obligation not to agree with Messrs. Sassoon to a new contract of brokerage, if and when it was thought fit. With regard to the action for moneys due under the contract of June 8, 1911, the only question that arises is whether the respondent is entitled to make a reduction in respect of losses arising from the incomplete contracts existing when the arrangement with the appellants came to an end. The learned trial Judge thought that he was not; but in this view their Lordships cannot concur. The accounts showed that certain losses always arose due to the failure of customers who were introduced to accept delivery and pay for the goods they had bought. It is urged on behalf of the appellants that, had their services been continued, these losses might have been minimized, owing to their personal relations with the customers. This is indeed a reasonable possibility, but the appellants have failed 4/O show that the difference between the amounts which the respondent seeks to deduct under this head are so materially out of proportion to the average loss that was sustained during their period of agency as to make a substantial difference in the figures, and in these circumstances their Lordships see no reason to interfere with the judgment of the High Court, who take the view that actual losses should be deducted. The final question relates to a claim with regard to business done under a verbal contract made between the appellants and the respondents firm for brokerage on goods bought by the respondents firm from Messrs. Sassoon & Co. direct and from their buyers. The final question relates to a claim with regard to business done under a verbal contract made between the appellants and the respondents firm for brokerage on goods bought by the respondents firm from Messrs. Sassoon & Co. direct and from their buyers. The learned trial Judge in directing an account of the sum due, in addition to a figure no longer disputed of 8 per cent, brokerage, adds also an account in respect of profits. This formed no part of his original 9 judgment, but was added in the decree. There is no analysis by the learned trial Judge of the evidence which led him to include this claim. The High Court on appeal thought it was insufficient for the purpose, and with that view their Lordships agree. The appellants in their evidence in chief do not in the first instance make a claim to embrace these sums. They stated "Juggumal told us that we would get the same commission for selling these goods." That is, the same commission as they were receiving under the original contract and in this the payment by commission is distinct from payment by a share of profits. They added that they were claiming a share of the profits in respect of these accounts, but they certainly did not say in examination in chief that there was any agreement that those profits should be paid. There is no sufficient explanation of how the claim for profits became included in the original decree and their Lordships think that the High Court were right in rejecting it. For these reasons they think that this appeal should fail, and they will humbly advise His Majesty that it should be dismissed with costs.