Judgment Dutt, J. This appeal is at the instance of the defendant no. 2, M/s. Goel Roadways, a common carrier and it arises out of a suit for recovery of a sum of Rs.34,131,90. 2. The case of the plaintiff M/s. M. Abehechand & Co. was that a consignment of 20 bales of hessian cloth was sold by the plaintiff to the defendant no. 1, M/S. Sri Balaji Poly Jute Industry, on November 10, 1972 and, as per the instruction of the defendant no. 1, the plaintiff delivered the same to the defendant no. 2 at its Calcutta office for transport from Calcutta to Guddapah in Andhra Pradesh. It was specifically agreed between the parties that the defendant no. 1 would retire the relevant documents from the bank and the defendant no. 2 should not deliver the consignment to the defendant no. 1 without collecting the consignment note, which was booked to self. The defendant no. 1 failed to retire the relevant documents from the bank, and the defendant no.2 in breach of contract delivered the consignment to the defendant no. 1 at Guddapah without collecting the relevant consignment note from the defendant no. 1. There were several correspondences between the parties and the defendant no. 1 promised to pay the price of the goods to the plaintiff, but ultimately it failed to keep its promise. The plaintiff, therefore, sued both the defendants for recovery of the said sum being the price of the goods including the bank charges inasmuch as the plaintiff's banker returned the relevant documents on account of the failure of the defendant no. 1 to retire the same. 3. The suit was contested by the defendant no. 2 alone. It was alleged that it had no branch at Guddapah, and that it was agreed between the parties that the defendant no. 2 would driver the consignment to the defendant no. 1 without production of the relevant consignment note in order to avoid demurrage. Further it was alleged that the plaintiff had since settled with the defendant no. 1 who had paid, the dues of the plaintiff and, accordingly, the defendant no. 2 was not liable. 4. The learned Judge, 5th Bench, City Civil Court, Calcutta, came to the finding that the defendant no. Further it was alleged that the plaintiff had since settled with the defendant no. 1 who had paid, the dues of the plaintiff and, accordingly, the defendant no. 2 was not liable. 4. The learned Judge, 5th Bench, City Civil Court, Calcutta, came to the finding that the defendant no. 2 had violated the terms of the contract between the plaintiff and itself and so it was liable for breach of contract under section 73 of the Indian Contract Act. He also held that the defendant no. 1 having taken delivery of the goods without payment of the price thereof was liable for the amount claimed by the plaintiff in the suit. Upon the laid findings, he decreed the suit against both the defendants for the sum of Rs.34,131.90. Hence this appeal by the defendant no. 2. 5. There is no question as to the liability of the defendant no. 1 for, the defendant no. 1 did not contest the plaintiff's claim in the trial court, nor has it preferred any appeal against the decree of the trial court. The plaintiff, however, cannot recover anything from the defendant no. 1 inasmuch as the defendant no. 1 has closed its business and is no longer in existence. The question, therefore, is whether the defendant no. 2 is liable to the plaintiff. Exhibit 5 is the consignment note dated December 2, 1972. The plaintiff was both the consignor and the consignee. There is a printed statement in the consignment note: "Only negotiable through bank if booked to self". It has been admitted by D.W. 1 Madan Lal Goel, one of the partners of the defendant no. 2 form, that when a consignment is booked to self, delivery has to be negotiated through bank. He, however, says that this is a mere formality. Apart from that statement in the consignment note, there are two other statements, namely, (1) “Consignee's copy of this is intended to be negotiated with a bank” and (2) "Delivery against consignee's copy". It is clear from the above statements in the consignment note (Ext. 5) that the agreement between the plaintiff and the defendant no. 2 was that the latter was to deliver the consignment only against the Consignee's copy of the consignment note. It was also clearly stipulated that the delivery was to be negotiated through a bank. The defendant no. It is clear from the above statements in the consignment note (Ext. 5) that the agreement between the plaintiff and the defendant no. 2 was that the latter was to deliver the consignment only against the Consignee's copy of the consignment note. It was also clearly stipulated that the delivery was to be negotiated through a bank. The defendant no. 2, however, delivered the goods to the defendant no. 1 without the consignment note which was to be retired by the defendant no. 1 from the bank on payment of price of the goods. The defendant no. 2, therefore, acted in breach of its duty as also of the terms of the contract by delivering the goods to the defendant no. 1 without the consignment note to the loss and prejudice of the plaintiff. The case of the defendant no. 2 as sought to be made out in the written statement and in the evidence of the D.W. 1 Madan Lal Goel, that they had no instruction from the plaintiff that they were to deliver the consignment only upon the receipt of the consignment note, is untrue on the fact of Exhibit 5. The further defence of the defendant no. 2 is that it had no bench office at Guddapah and the consignment was delivered to the defendant no. 1, for otherwise the plaintiff would be liable for demurrage. D.W. 1 has also deposed to that affect. The allegation that the defendant no. 1 had no branch office at Guddapah is also untrue. After the delivery of the goods by the defendant no. 2 to the defendant no. 1 without the consignment note, the defendant no. 1 did not inform the plaintiff about such delivery. By its letter dated May 25, 1973 (Ext. 9), the plaintiff enquired of the defendant no. 2 as to what had happened to the goods. The defendant no. 2 was requested to inform the plaintiff if the defendant no. 1 had taken delivery of the goods against the consignment note or not. The defendant no. 2 was further requested to re-book the goods to the plaintiff in the event they were still lying in its custody. The defendant no. 2 by its letter dated June 9, 1973, informed the plaintiff that it had not received any advice from its branch office concerned. The defendant no. 2 was further requested to re-book the goods to the plaintiff in the event they were still lying in its custody. The defendant no. 2 by its letter dated June 9, 1973, informed the plaintiff that it had not received any advice from its branch office concerned. It was stated that as soon as the same was received, it would be communicated to the plaintiff. Thereafter, the plaintiff had to write to the defendant no. 2 time and again, but the only reply that was given by the defendant no. 2 was that it had not received any information from its branch office. The defendant no. 2 did not inform the plaintiff in any of its letter about the delivery of the goods by it to the defendant no. 1 without the consignment note until July 30, 1973. In its letter of that date (Ext. 15), the defendant no. 2 alleged that it had no branch at Guddapah and it had delivered the goods to the defendant no. 1 without the consignee's copy of the consignment note as per the instruction of the plaintiff so as to avoid the demurrage. There can be no doubt that the plea raised by the defendant no. 2 in its letter (Ext. 15) is an afterthought. In its previous letters, the defendant no. 2 avoided to disclose to the plaintiff about the delivery of the goods to the defendant no. 1 on the plea that it had not received any intimation from its branch office concerned, but when it found that there was no explanation justifying the delivery of the goods to the defendant no. 1 in breach of the terms of the contract embodied in the consignment note (Ext. 5), it came with the plea that it had no branch office at Guddapah and the delivery was given as per the instruction of the plaintiff so as to avoid demurrage. The defendant no. 2 was, therefore, principally responsible for the loss suffered by the plaintiff. 6. Mr. Ranjit Kumar Banerjee, learned Advocate appearing on behalf of the defendant no. 2 appellant, submit that no decree could be passed against the defendant no. 2 as the suit was not maintainable against that defendant. It is contended by him that the plaintiff having sued the defendant no. 6. Mr. Ranjit Kumar Banerjee, learned Advocate appearing on behalf of the defendant no. 2 appellant, submit that no decree could be passed against the defendant no. 2 as the suit was not maintainable against that defendant. It is contended by him that the plaintiff having sued the defendant no. 1 for the price of the goods, he has 'waived the tort' by recognized the carrier's action al valid and he cannot sue the carrier. Further, he submits that the suit is based on a new cause-of-action inasmuch as the plaintiff had entered into a fresh agreement with the defendant no. 1 and, accordingly, the suit is not maintainable against the defendant no. 2, the carrier. In support of his contention, he has placed strong reliance on a decision of the Court of Appeal in (1) Verschures Creameries Ltd. v. Hull And Netherlands steamship Co. Ltd. (1921) A.E.L. Reports 215. In that case, the plaintiffs dispatched certain goods to the defendants, who were carriers and forwarding agents, to be delivered to consignees. During transit the plaintiffs instructed the defendants not to deliver the goods to the consignees but nevertheless they were delivered to one Bellin, one of the consignees. The plaintiffs thereupon invoiced the goods to the said consignee and ultimately recovered judgment against him for the price of goods sold and delivered, but as the judgment was unsatisfied, they sued the defendants for negligence and breach of duty as carriers or forwarding against. It was held that by suing the consignee for goods sold and delivered the plaintiff had elected to treat the delivery to the consignee as an authorised delivery and they could not treat the same act as a misdelivery against the defendants, and accordingly they were stopped from suing the defendants. Bankes, L.J. observed as follows: "When the plaintiffs became aware of this, they had a right to elect; they could refuse to recognize the action of the defendants in delivering the goods to Beilin and sue them for conversion or breach of duty, or they could recognise and adopt the act of the defendants and sue Beilin for goods sold and delivered. They elected to take the latter course, and they sued Beilin to judgment. Having elected to treat the delivery to him as an authorised delivery, they cannot treat the same act as a misdelivery as against the defendants. They elected to take the latter course, and they sued Beilin to judgment. Having elected to treat the delivery to him as an authorised delivery, they cannot treat the same act as a misdelivery as against the defendants. That would be to approbate and reprobate the same act." 7. On the authority of Verchures Creameries, Ltd. v. Hull and Netherlands S.S. Co. (supra), it is contended on behalf of the appellant that the plaintiff having sued the defendant no. 1 for the price of the goods had adopted and recognised the delivery of the goods to it by the defendant no. 2 as valid and, accordingly, the plaintiff is debarred from suing the defendant no. 2 for such misdelivery. In that case, after the misdelivery, the plaintiff invoiced the goods to the consignee and sued him for recovery of the price of the goods sold and delivered and obtained a judgment against him. Thereafter the plaintiffs instituted the bankruptey proceedings against the consignee in respect of the judgment debt. Havina failed to recover anything from the consignee, the plaintiff sued the defendant for damages for wrongful conversion and breach of duty. The decision in Verschures Creameries, Ltd. v. Hull and Netherlands S.S. Co. is founded on the old English principles of election and waiver of tort. The commencement of an action or proceedings in bankruptcy to recover the proceeds of goods wrongfully dealt with is the evidence of an election to waive the tort, but is not necessarily conclusive (see Clerk & Lindsell on Torts 14th Edition, Article 583). 8. The strictness of the principles of election and waiver of tort has been greatly mitigated in the case of (2) United Australia, Ltd. v. Barklays Bank Ltd. (1940) 4 All. Eng. Reports 20. The facts of that case were that the secretary of the plaintiff company, without authority, endorsed a cheque, made payable to the company, the M.F.G. Trust, Ltd. The defendant bank accepted it for collection, and credited the proceeds to the account of M.F.G. Trust Ltd. Subsequently, the plaintiff company commenced an action against the MFG Trust, Ltd. to recover the value of the cheque as a loan, or, in the alternative, as money had and received. Before final judgment, M.F.G. Trust Ltd., went into liquidation. Before final judgment, M.F.G. Trust Ltd., went into liquidation. The plaintiff put in a proof for the sum alleged to be due in the liquidation, but the proof was not admitted, and the funds to meet the demands of creditors were merely trivial. They then brought the present action against the bank for wrongful conversion of the cheque. The defence pleaded was, inter alia, that the plaintiff had ratified the endorsement of the cheque by the secretary by suing the M.F.G. Trust, Ltd., and had, therefore, waived the tort, to which it was answered that there could be no waiver, as to judgment had been obtained against M.F.G. Trust. Ltd. It was held: (1) there was no election or waiver, as the plaintiff were not called to elect until they applied for judgment against M.F.G. Trust, Ltd.; (2) oven If the plaintiffs had waived the tort or elected against M.F.G. Trust. Ltd. the earlier proceedings provided the defendant bank with no defence, because the plaintiffs had not received satisfaction for their loss; (3) in any events the defendant bank was guilty because the tort of conversion, of which the bank was guilty, was a tort quite separate from that of M.F.G. Trust, Ltd. According to the above decision of the House of Lords mere institution of an action or the passing of the judgment in favour of the plaintiff, would not constitute waiver of the tort unless there was satisfaction of the judgment Viscount Symon, L.C. in distinguishing the case of Verschures Creameries v. Hull And Netherlands S.S. Co., (supra) observed as follows:- "As for the more recent decision of Verschures Creameries v. Hull And Netherlands S.S. Co., upon which much reliance was placed in the courts below, it is sufficient to say that it can be distinguished from the present case on the ground that the earlier of the two actions coded in the plaintiffs recovering judgment, whereas in the present case the appellant got no judgment against M.F.G. at all. To avoid misunderstanding, I must add that I do not think that the respondents is the present case would escape liability, even if judgment had been entered in the appellant company's earlier action against M.F.G. What would be necessary to constitute a bar, would be that, as the result of such judgment, or otherwise, the appellants should have received satisfactions." It follows from the above observation that the House of Lords did not approve of the principle that by instituting an action and obtaining a judgment by the plaintiff against one of the tortfeasors, there would be waiver of tort against the other. The principle was relaxed even to the extent that so long as the judgment was not satisfied there would be no waiver. Lord Porter has distinguished the case of Verschures Creameries v. Hull and Netherlands S.S. Co. by observing that it was a case in which agents acted in the mistaken belief that they had authority and the principal afterwards ratified the authority which the agents thought they had. 9. In Verschures Creameries v. Hull and Netherlands S.S. Co. the consignee and the defendant carrier were both guilty of wrongful conversion. The plaintiffs sued the consignee under the contract for the recovery of the price of goods and obtained judgment against him, and having failed to recover anything from him, sued the defendant in tort for misdelivery. So it was held that there was waiver of the tort. But if the plaintiff, had sued both the consignee and the defendant in tort for wrongful conversion, there could be no question of election or waiver or tort. In the instant case, the question of election or waiver of tort does not arise. Neither the defendant no. 1 nor the defendant no. 2 has been sued in tort, but both of them have been sued for breach of contract. If the plaintiff had sued the defendant no. 1 under the contract and the defendant no. 1 for wrongful conversion, the question of election or waiver of the tort might arise. In this connection, it may be stated that there is a marked distinction between a contract and a tort. Whether a particular act is a tort or a breach of contract depends upon the nature of duty that is violated. Where the duty is imposed by law, the act will amount to a tort. In this connection, it may be stated that there is a marked distinction between a contract and a tort. Whether a particular act is a tort or a breach of contract depends upon the nature of duty that is violated. Where the duty is imposed by law, the act will amount to a tort. On the other hand, if the duty is imposed by the parties themselves, the act will be a breach of contract. But the same act may amount to a tort and a breach of contract as in the instant case. The act of the defendant no. 2 in delivering the goods to the defendant no. 1 amounts to both tort and breach of contract. While there is a legal principle of waiver of tort, there is no such principle as waiver of the breach of contract. Moreover, the plaintiff has sued both the defendants jointly in the suit. The plaintiff has not sued the defendant no. 1 under the Contract and the defendant no. 2 for wrongful conversion, but both of them have been sued for breach of contract. The letters that were written by the plaintiff to the defendant no. 2 are not, in the least, suggestive of ratification by the plaintiff of the conduct of the defendant no. 2 in delivering the goods to the defendant no. 2. In the circumstances, we do not think that the principle of election or waiver of tort can be of any help to the appellant. 10. It is contended on behalf of the appellant that as the claim of the plaintiff against the defendant no. 1 is based on a fresh contract giving rise to a fresh cause-of-action, the suit is not maintainable against the defendant no. 2. It appears that after the plaintiff came to know that the goods had been delivered by the defendant no. 2 to the defendant no. 1 the plaintiff by its telegram and two letters (Exts. 19 and 20) called upon the defendant no. 1 to make payment for the goods. The defendant no. 1 by its letters (Exts. 21 and 22) promised to pay the dues of the plaintiff. It alia transpires from the letter (Ext. 24), that there were discussion between the representatives of the plaintiffs and the managing partner of the defendant no. 1 over the payment of the plaintiff's dues. 1 to make payment for the goods. The defendant no. 1 by its letters (Exts. 21 and 22) promised to pay the dues of the plaintiff. It alia transpires from the letter (Ext. 24), that there were discussion between the representatives of the plaintiffs and the managing partner of the defendant no. 1 over the payment of the plaintiff's dues. It is not disputed that the defendant no. 1 had not paid anything to the plaintiff. In our opinion, from the above facts it is difficult to spell out a fresh contract between the plaintiff and the defendant no. 1. The plaintiff was merely asking the defendant no. 1 to pay its dues, that is, the price of the goods and the bank charges. There can be no doubt that under the terms of the contract the property in goods did not pass to the defendant no. 1 as the latter had not fulfilled the conditions imposed by the plaintiff, namely, that the delivery would be made only on the retirement of the consignment note from the bank by paying the price of the goods. It is true that the plaintiff has not used the word 'damages or compensation' but computed its dues as the price of the goods and bank charge". We do not think that use of the words 'price of the goods' is fatal to the plaintiff so far as its claim against the defendant no. 2 is concerned, for damages in such cases are equivalent to the price of the goods and other charges incurred by the letter. In our view, the plaintiff had been in effect demanding from the defendant no. 1 damages or compensation. Even in the case of a tort, "A mere demand for payment of compensation for a tort is no waiver of an action for it; nor is part payment of what is due, unless it is accepted as a full discharge; nor is the commencement of an action with alternative claims in tort and for money had and received; and if one and the same not constitutes two different torts, suing of an action far both of them is no waiver of either of them" (Winfield and Jolowicz on Tort, 10th Ed., page 642). In our view, the same principle will apply to the facts and circumstances of the instant case. In our view, the same principle will apply to the facts and circumstances of the instant case. In the absence of clear and positive evidence as to the creation of a fresh contract, a suit should not be defeated on mere inference and technicalities. In this connection, we may refer to another observation of Viscount Symon, L.C. in United Australia, Ltd. v. Barklays Bank, Ltd. (supra) : "My Lords, I am glad that it is possible to reach this result for the alternative view, which is based upon a misreading of technical rules, now happily swept away, would have worked substantial injustice. The appellants have lost their money, and they have lost it owing to the tort of the respondent bank. Why should they not recover it in this action ? Nothing which has previously happened in the proceedings against M.F.G., no earlier step taken by the appellants, has prejudiced the position of the bank in any way. All that the respondents have been deprived of is the filleting prospect of avoiding responsibility if the appellants had succeeded in obtaining satisfaction from another party. The "general principles of right" to which the Court of Appeal referred in its judgment would surely indicate that the respondent bank should not escape because the appellants have wasted time and money in pursuing another remedy which turned out to be illusory.;" 11. We are, therefore, unable to accept the contention made on behalf of the appellant that the plaintiff's claim is not maintainable against it. No other point has been urged in this appeal. 12. For the reasons aforesaid, the judgment and decree of the trial court are upheld and the appeal is dismissed with cost. There will be stay of operation of this judgment for four weeks from date, at prayed for by the learned Advocate for the appellant. Sharma, J.: I agree.