We would observe in passing, that the learned commissioner must have used the term “agreement” in its ordinary sense, and not as a legal term, namely, an agreement enforceable at law, because there is no evidence upon which he would be justified in law in holding that there was a contract between the first appellant and the respondent the performance of which can be enforced against the first appellant in a court of law. There was no agreement by deed, and there was no consideration moving from the respondent to the first appellant for the alleged oral agreement. Therefore the finding that there was an agreement is wrong.
Where rights such as the right of a mortgagee, have accrued to a party under a contract, the party cannot be postponed in the exercise of that right except by express waiver, or by an agreement enforceable at law, not to exercise that right until a future date. Such agreement not to exercise the right may be enforced in one of two ways: (i) by action for injunction to restrain the promissor from exercising the right before the postponed date, or (ii) where the right has been exercised in contravention of the agreement, by action for damages for breach of that agreement. A breach of that agreement will not render the exercise of the right illegal so as to avoid it completely. Therefore upon the finding of the commissioner that the first appellant agreed to extend the time to 30 January 1959, it became quite clear that the respondent’s claim was misconceived, and the commissioner should, upon his said findings, have dismissed the same.
In my view the class of goods and the status of the persons contracting rule out any obligations as to conditions or warranties. In my view even if it were assumed that the subsequent state of the Mercedes Benz car at the time of sale constituted a breach of a condition, the respondent must be presumed to have waived his rights by retaining the car unduly long.
The postponements occurred between 1969 and 1972. The time lag does not suggest waiver. Again, after each postponement, there was a new promise to marry or an affirmation of the agreement to marry. The respondent’s willingness to marry on the day ultimately fixed is a sufficient consideration to support a fresh promise or a continuing promise by the appellant, to marry her on that day. The reciprocity was sufficient consideration. In my view the justness of the respondent’s cause would have been sadly punctured if she had sued the first time the appellant failed to fulfil his obligation to marry. Emotions were involved and the spirit of compromise which the respondent demonstrated in accommodating the appellant was commendable and could not amount to a waiver.
