[1955] EACA 4

# ORIGINAL CIVIL

### Before DE LESTANG, J.

## A. H. ADAM, Plaintiff

#### ν.

## THE TANGA-MOMBASA TRANSPORT COMPANY, Defendant

#### Civil Suit No. 291 of 1953

Contract—Breach—Sale of Goods Ordinance, Cap. 290, section 6—Absence of note or memorandum in writing—Whether acceptance of goods—Necessity to prove actual receipt—Goods consigned by carrier to third party—Whether carrier buver's agent-Whether contract enforceable.

By mutual agreement with the defendant firm, the plaintiff firm purchased a motor vehicle in Nairobi and consigned it by rail to Tanga. The vehicle. however, was not consigned to the defendant firm but to the Standard Bank of South Africa Ltd., at Tanga, to which the plaintiff firm sent a sight draft for Sh. 7,500 drawn upon the defendant firm. The Bank's instructions were to deliver the vehicle to the defendant firm upon payment of the sight draft. The defendant firm refused to honour the sight draft and rejected the vehicle on the ground that the price agreed was Sh. 4,500 and not Sh. 7,500 as claimed. The plaintiff firm thereupon caused the vehicle to be railed back to Nairobi where it was sold for Sh. 6,500. Carriage and demurrage charges totalling Sh. 1,020 60 cts. were paid by the plaintiff firm. The plaintiff firm claimed the railage charges and the difference in price. The Court accepted that the plaintiff firm had proved the contract and the breach but the defendant firm pleaded the contract was unenforceable by action since there was no note or memorandum in writing because of the provisions of section 6 of the Sale of Goods Ordinance, Cap. 290.

Held (13-5-55).—(1) The inspection of the vehicle at Tanga and its rejection on the ground that the price was excessive, by the defendant firm, indicated the existence of a previous contract of sale which was all that was necessary to constitute an acceptance in terms of section 6 (3) of the Sale of Goods Ordinance.

(2) Acceptance, however, was not enough to bring the suit within the exception, there must also have been actual receipt of the vehicle by the defendant firm. As the defendant firm had never received the vehicle the contra exception to section 6 and as there was no memorandum in writing the contract was unenforceable by suit.

(3) A carrier, *prima facie*, is the buyer's agent but only when he holds the goods<br>for the buyer. Although the plaintiff firm had consigned the goods by a carrier, the goods were not consigned to the defendant firm but to a bank with the result that the plaintiff firm never parted with possession and the carrier was the agent not of the defendant but of the plaintiff firm.

# S. R. Kapila for plaintiff

## D. V. Kapila for defendant.

JUDGMENT.—This is a suit for breach of contract for sale of a motor vehicle, but, for some unexplained reason, the plaint does not contain an express claim for damages. Instead, the plaintiff averred in paragraph 8 "that the defendants are indebted" in the sum of Sh. 2,020 60 cts., which sum clearly ought to have been claimed as special damages. No objection was taken in the defence to the unusual form of the plaint, but during the trial the defendant's advocate referred to it in passing.

The case for the plaintiffs rests almost entirely on the evidence of Mr. Abdul Habib Adam, a partner in the plaintiff's firm, who testified to the following effect. The plaintiffs are traders in Nairobi and part of their business consists in buying and selling ex-military vehicles. In or about April, 1952, Mr. Rajab Ali, a partner in the defendant's firm, visited the plaintiff's firm, in Nairobi, in connexion with the purchase of an ex-military truck. He was taken to Disposals, at Kabete, where he inspected a Dodge bus which, although not for sale at the time, was expected to come up for sale soon. He agreed with the plaintiffs that if they could get the vehicle he would purchase it from them for Sh. 7,500 to Sh. 8,000 including their commission. He also agreed that, in that event, the plaintiffs should rail the vehicle to the defendants at Tanga where they carry on business. The plaintiffs obtained the vehicle and towards the end of May or early part of June, 1952, railed it to Tanga. The vehicle was not, however, consigned to the defendants, but to the Standard Bank of South Africa Ltd., at Tanga, to whom the plaintiffs also sent a sight draft for Sh. 7,500 drawn on the defendants. The vehicle was to be delivered to the defendants on payment of the sight draft. The defendants refused to honour the sight draft and rejected the vehicle on the ground that the price agreed was Sh. 4,500 and not Sh. 7,500 as claimed, whereupon the plaintiffs caused the vehicle to be railed back to Nairobi and, after notice to the defendants, resold it for Sh. 6,500. The carriage of the vehicle to and from Tanga, together with demurrage charges at Tanga totalling Sh. 1,020 60 cts., had to be paid by the plaintiffs. Mr. Adam impressed me as an honest witness and I accept his evidence which, after all, was uncontradicted by other evidence in the case. On his evidence and on the documents produced I find the alleged contract and the breach by the defendants proved. The plaintiffs would therefore be entitled to damages in the sum claimed assuming that such a claim is not defeated by the form of the plaint. The defendants, however, contend that, as there was no note or memorandum in writing of the contract, it is unenforceable by action under section 6 of the Sale of Goods Ordinance, Cap. 290 Laws of Kenya. This section, which reproduces section 4 of the Sale of Goods Act, 1893, reads as follows: $-$

"6. (1) A contract for the sale of any goods of the value of two hundred shillings or upwards shall not be enforceable by action unless the buyer shall accept part of the goods so sold, and actually receive the same, or give something in earnest bind the contract or in part payment, or unless some note or memorandum in writing of the contract be made and signed by the party to be charged or his agent in that behalf.

(2) The provisions of this section apply to every such contract, notwithstanding that the goods may be intended to be delivered at some future time. or may not at the time of such contract be actually made, procured or provided, or fit or ready for delivery, or some act may be requisite for the making or completing thereof, or rendering the same fit for delivery.

(3) There is an acceptance of goods within the meaning of this section when the buyer does any act in relation to the goods which recognizes a pre-existing contract of sale whether there be an acceptance in performance of the contract or not."

The plaintiffs contend that the present contract falls within one of the exceptions contained in section 6, namely, that the defendants accepted the goods sold within the meaning of sub-section (3) and actually received the same.

I agree that there was acceptance of the vehicle within the meaning of section $\overline{6}$ , sub-section 3. The inspection of the vehicle by the defendants at Tanga which I am satisfied, on the evidence, must have taken place, and its rejection on the ground that the price was excessive, indicates in my view the existence of a previous contract of sale which is all that is necessary to constitute an acceptance

under this section. Acceptance however, is not sufficient to bring the case within the exception. There must also be actual receipt of the vehicle by the defendants. and, it is here that I part company with the plaintiff's contention. It is submitted for the plaintiffs that the Railways, to whom the vehicle was delivered for transport to Tanga, received it for the defendants because a carrier is *prima facie* the buyer's agent to receive the goods. I agree with the latter part of this submission that a carrier is *prima facie* the buyer's agent, but surely that is only so when the carrier holds the goods for the buyer. In the present case by consigning the vehicle to their Bank's address in Tanga the plaintiffs never parted with its possession and the Railways were the agent not of the defendants but of the plaintiffs. I, therefore, hold that the defendants never received the vehicle in this case and that therefore the contract does not fall within the exception in section 6; as there was no memorandum in writing it is unenforceable by action. The suit will therefore be dismissed with costs.