[1937] EACA 121

## COURT OF APPEAL FOR EASTERN AFRICA.

Before Law, C. J. (Zanzibar), LUCIE-SMITH, Ag. C. J. and WEBB, J. (both of Kenya).

## IBRAHIM KARIMBUX (Appellant) (Original Defendant) $\boldsymbol{v}$ .

## DALGETY AND COMPANY LIMITED (Respondent) (Original Plaintiffs).

## C. A. $4/1934$ .

- Sale of Goods Ordinance, 1930, sections 2 (1), 8, 16 (2), 18, 20, Rule III and 35-Specific goods or unascertained goods-Individuality of goods known—Rights of parties defined as to the thing which constituted the subject-matter of the contract—Consideration of case where specific goods are sold by description and do not correspond with that description-Consideration of what it was that plaintiffs contracted to sell and whether the goods delivered correspond with contract-Maize meal-Implied condition that meal should be of merchantable quality—Evidence—Action for price of goods sold and delivered and not for damages for refusal to accept. - Held (28-6-34).—That a contract for sale of maize meal of first-class quality would be a contract for sale of unascertained or generic goods, in which case the property in the goods would not be transferred to the buyer unless and until the goods were ascertained. But, in the present case, the only maize meal in the contemplation of parties was the quality which plaintiffs had at Rongai Mills, and the only question whether the definition of the amount of meal and its locality was enough to render specific a description which would otherwise have been generic. Even if a contract is one for sale of specific goods, if these goods are sold by description and do not correspond with description, the seller fails to comply, not with a warranty or collateral agreement, but with the contract itself by breach of a condition precedent. In this case the evidence supported the finding of the trial Judge that the contract was for the sale of 181 bags of maize meal by the description "maize meal". The contract being for sale by<br>description of "maize meal" there was, by section 16 (2). an implied condition that the meal should be of merchantable quality, and there was ample evidence that it was such. Appeal dismissed. In re Wait (1927) I Ch. 606. Laurie v. Dudin (1926) I K. B. 223, Varley v. Whipp (1900) I Q. B. 513, and Holroyd v. Marshall, 33 L. J. Ch. 193 referred to.

Appeal from Supreme Court of Kenya.

Daly for appellant.

Atkinson for respondents.

Daly.-Not according to contract: property not passed to buyer: anyhow respondents could only bring action for damages. Sale of Goods Ordinance, section 5, Contract, section 19—Specific

goods. Intention as to time of transfer of property in goods. The contract was for first class quality, meal milled from good sound European-grown maize. Referred to evidence section 20. section 15 unascertained goods or specified goods by description. Sale of goods by description. Implied condition that goods comply with description. Unascertained goods when property passes. Section 35 acceptance of goods not previously examined: Section 36 time of and nature of opportunity to examine. acceptance. Section 37 no duty to return unaccepted goods. Section 50 action for damages for breach of contract if property was not passed. Molling v. Dean and Sons, 18 T. L. R., p. 217. Right of inspection. Brigg v. Villa Nova, 40 T. L. R., 154 Place of inspection. Opportunity to inspect. Boks v. Rayner, 37 T. L. R., p. 800. Varley vs. Whipp, 1900, 1, Q. B. D., p. 513, specified goods. The case applies in all instances where buyer has not seen goods.

Atkinson.—Judge's finding of fact substantially correct. Appellant argues sale of unascertained goods. It was specific goods. Section 62—Specific goods. Identified and agreed on attime of sale. 188 bags itself is prima facie evidence of a specific quantity. No objection as to number of bags delivered. They were identified and agreed on. Therefore sale of specific goods. Appellant's case in appeal relates to sale of unascertained goods. What was contract? F. O. R. Rongai, Sh. 10 per bag, 200 lb. per bag. Onus on defendant to prove any contrary contract. $\quad \textbf{If} \quad$ nothing said about the quality, fair average quality should be supplied. If this be so, surely there was evidence for Judge's finding of 188 bags specific goods-maize meal. Finds implied condition that goods should be reasonably fit for purpose for which bought. Section 16 (1). Holroyd vs. Marshall, 33 L. J. Ch. 193. 10 H. L. Cases p. 191. Section 49 for goods sold and delivered. Section 20, rule 3, when property passes. Intention of parties. Section 35 is independent of section 20, rule 3. $\frac{3}{2}$ Implied warranty for human consumption. Even if stipulation as to quality, even if it went as far as condition, section 13 $(c)$ comes into play; only ground for breach of warranty and not ground for rejecting goods. Section 53. There was no sale by description. Quality quite good.

Daly replied.—Section 15 implied warranty that goods shall comply with description.

WEBB, J.—This is an appeal by the defendant from a judgment of HORNE, J., ordering him to pay to the plaintiffs the sum of Sh. 1,810, being the price of 181 bags of maize meal sold and delivered by the plaintiffs to the defendant.

The defence is, firstly, that the contract was for "meal of first-class quality, that is to say, meal milled from good sound European-grown maize", and that an inferior quality was supplied, and, secondly, that, as the contract was for the sale of.

unascertained goods, in which case the property does not pass to the buyer until he has had an opportunity of inspection (Sale of Goods Ordinance, 1930, section 35), the plaintiffs' proper remedy, if they were entitled to any relief, was by an action for damages for refusal to accept, and not by an action for the price of goods sold and delivered. Both of these contentions are denied by the plaintiffs. I shall deal first with the second ground of defence.

The contract was made by telephone conversation on the 21st June, 1933, confirmed by exchange of letters on the same date, and it appears from the evidence of the defendant's son, and from the plaintiffs' letter, that in response to an inquiry for maize meal, the plaintiffs' manager offered to supply and the defendant agreed to purchase for Sh. 10 per bag a quantity of about 188 bags lying at Rongai Mill. In fact the amount of meal at Rongai Mill belonging to the plaintiffs proved to be 181 bags.

"Specific goods" are defined by section $2$ (1) of the Sale of Goods Ordinance, 1930, as "goods identified and agreed upon at the time a contract of sale is made". Now a contract for the sale of maize meal simpliciter, or of maize meal of first-class quality, would clearly be a contract for the sale of unascertained or generic goods, in which case, by section 18, the property in the goods would not be transferred to the buyer unless and until the goods had been ascertained, and, by section 35 (1), if he had not previously examined them, he would not be deemed to have accepted them upon delivery unless and until he had had a reasonable opportunity of examining them to see if they were in conformity with the contract. But, in the present case, it is not disputed that the only maize meal in the contemplation of the parties was the quantity which the plaintiffs had at Rongai Mills, and the question arises whether the definition of the amount of meal and its locality is enough to render specific a description which would otherwise have been generic.

In Holroyd v. Marshall (33 L. J. Ch. 193) Lord Westbury gives as an example of a contract for the sale of specific goods a contract to sell "the 500 chests of a particular kind of tea which are now in my warehouse in Gloucester", and in re Wait (1927, 1 Ch. at p. 618) Lord Hanworth, in commenting upon that illustration, said "These words appear to indicate clearly specific goods in a specific place, identified and ascertained as the subjectmatter of the contract".

It appears to me that the question may be further tested thus: where there is a contract for the sale of specific goods. and the goods without the knowledge of the seller have perished at the time when the contract is made, the contract is void (Sale of Goods Ordinance, 1930, section 8), but in the case of a contract for the sale of unascertained or generic goods the maxim genus nunquam perit applies. If, in the present case, the Rongai Mill

and all its contents had, unknown to the parties, been destroyed by fire on the morning of the 21st June, could the defendant have compelled the plaintiffs to procure elsewhere 181 bags of maize, at whatever price, and deliver them to him at Sh. 10 a bag in performance of the contract? In my opinion the plaintiffs in such circumstances would be entitled to take the objection that the subject-matter of the contract had ceased to exist and that the contract was void. Here there was no necessity to separate the maize sold from a larger mass as was the case in re Wait (1927, 1 Ch. 606) Laurie vs. Dudin (1926, 1 K. B. 223) and similar cases; on the contrary, the individuality of the goods sold was known, they consisted of the number of bags of maize meal-in fact 181-belonging to the palintiffs which were then lying at Rongai Mill, and they were appropriated to the contract: the rights of the parties were thus completely defined as to the thing which constituted the subject-matter of the contract.

I am therefore of opinion that this contract was one for the sale of specific goods, but, even so, the case of $Varley \ v.$ Whipp (1900, 1 Q. B. 513), cited by Mr. Daly, is authority for the proposition that, if specific goods are sold by description, and do not correspond with that description, the seller fails to comply, not with a warranty or collateral agreement, but with the contract itself, by breach of a condition precedent (Benjamin on Sale, 7th Ed. p. 323).

It therefore becomes necessary to consider on the evidence in this case, what it was that the plaintiffs contracted to sell, and whether the maize meal delivered to the defendant corresponded with the contract—In my opinion the evidence supports the finding of Horne, J., that the contract was for the sale of "181 bags of maize meal by the description 'maize meal'". The defence sets out the contracts as having been for maize meal "of first-class quality", adding, apparently as a definition of what constitutes "first-class quality", the words "that is to say, meal milled from good sound European-grown maize", but the most, or rather the worst, that the defendant's witnesses say of the meal is that it appeared to contain some native-grown maize. That some of the evidence for the defendant is grossly exaggerated. is shown by the fact that on the 30th June, nine days after the date of the contract and at a time when the market-price was falling, the defendant offered Sh. 8/50 a bag for the meal.

On the other hand the evidence of Mr. Kenny (the plaintiffs^\* manager) and Mr. Jones (manager of the Rongai Mills) was that the only maize meal at the mill belonging to the plaintiffs was meal milled from maize grown on the farm of a Mr. Watson, and Mr. Kenny's letters of the 28th June and the 10th July show that it was this meal that he had sold to the defendant-Indeed, if it had been found that the contract was for the sale of Europeangrown maize, I think there was evidence that this condition had been complied with.

The contract, then, being for the sale by description of "maize meal" there was, by section 16 (2) of the Sale of Goods Ordinance, 1930, an implied condition that the meal should be of merchantable quality, and, in my opinion, there was ample evidence that it was such.

Objection has been taken to the fact that the learned Judge did not have regard to the report of the Government analyst, dated the 16th October, which was produced by the defendant's son. In respect to this document a Notice, under Order 11, rule 3, was served on the plaintiffs' lawyer to admit that it "was written, signed, or executed as it purports to have been, saving all just exceptions to the admissibility of such document in evidence in this suit". An admission by the plaintiffs, therefore, was merely an admission that the report was in fact written and signed by the Government analyst, but, as he was not called as a witness, its contents were clearly inadmissible in evidence, and there is nothing on the record to show that the plaintiffs' advocate agreed that it should be received.

The contract being one for the sale of specific goods, I am of opinion that, by section 20, rule 3, the property was transferred to the buyer when the number of bags was counted and the price ascertained and this fact communicated to him by means of the Railway way-bill, and that the goods were delivered to the buyer when they were delivered to the Railway at Rongai. The action was therefore properly framed as one for the price of goods sold and delivered.

In my judgment, therefore, the appeal fails and should be dismissed with costs.

LAW, C. J. (Zanzibar).—I agree.

LUCIE-SMITH, Ag. C. J. (Kenya).-I concur.