[1951] EACA 324

# APPELLATE CIVIL

### Before de LESTANG, J.

## MOHAMED BIN OMAR BASITY, Appellant (Original Plaintiff)

## C. CUTMORE, Respondent (Original Defendant)

### Civil Appeal No. 57 of 1950

#### (Appeal from decision of the R. M.'s Court at Mombasa)

Pleadings—Sale of goods—Non-severable contract.

The Plaintiff sued in the Resident Magistrate's Court, Mombasa, for the purchase price of 1,500 coral blocks. The defendant pleaded acceptance delivery of 1,323 blocks and rejection of the balance. At the trial the Magistrate held that only 1,120 blocks were in accordance with the contract and that the defendant was entitled to reject 380 blocks and not 177.

On appeal the plaintiff contended that the defendant having accepted the blocks delivered at his land the defendant was not entitled to reject any of them. Further that the contract was a non-severable one and by section 13 (1) (c) Sale of Goods Ordinance the defendant was precluded from rejecting the inferior blocks.

Held (16-10-51).—(1) The defendant was bound by his pleadings and the Magistrate was not entitled to find that respondent had rejected more than the blocks he claimed to have rejected in his defence.

(2) On the evidence acceptance of the blocks took place at the Defendant's building site and not where he received them.

(3) The respondent was precluded from rejecting the inferior blocks by section 13 (1) (c) of the Sale of Goods Ordinance the contract being a non-severable one.

U. K. Doshi for Appellant.

J. E. L. Bryson for Respondent.

JUDGMENT.—This is an appeal from the judgment of the learned Resident Magistrate, Mombasa. The appellant who was the plaintiff in the court below claimed from the respondent who was a defendant Sh. 825, being the purchase price of 1,500 coral blocks at Sh. 55 per 100. The respondent by his defence<br>admitted having received from the appellant 1,500 coral blocks but pleaded that he had only accepted delivery of 1,323 and had rejected the rest as not being in accordance with the contract. The learned Magistrate found that only 1,120 blocks were in accordance with the contract and that the respondent was entitled to reject 380. It is contended by the appellant that the respondent having admitted by his defence that he had rejected only 177 blocks the learned Magistrate erred in<br>holding that he had rejected 380 blocks. In my view the appellant's contention is correct. A party to a suit is bound by his pleadings and any admission in a pleading must be taken as true and cannot be contradicted by evidence unless and until the pleading has been amended. In the present case no amendment was made and an application to do so was withdrawn. In the circumstances nothwithstanding the evidence the learned Magistrate was not entitled to find that the respondent had rejected more than 177 coral blocks.

It is also contended by the appellant that the respondent having accepted all the 1,500 blocks delivered to him was not entitled to reject any of them. The agreement between the parties was that the respondent should purchase and the

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appellant sell 1,500 coral blocks from a specified stack on the appellant's land. Delivery was to take place on the site and in accordance with this agreement the respondent sent a hired lorry with the necessary labour to collect the blocks. I can see no valid reason for not accepting the learned Magistrate's finding of fact that some of the blocks that were delivered by the appellant and taken away by the respondent's servants on his hired lorry were of inferior quality and did not come from the approved stack. There was in my view some evidence upon which the learned Magistrate could reasonably come to that conclusion. The point which I have to decide is whether there was an acceptance of the blocks by the respondent. It is contended that the time and place of delivery is prima facie the time and place for the examination of the blocks and that when, therefore, the respondent's servants, having had ample opportunity of examining the blocks on the spot took possession of them and transported them to the defendant's premises they accepted the blocks on behalf of the respondent. What constitutes "acceptance" under the Sale of Goods Ordinance is defined by section 36 as follows: $-$

"36. The buyer is deemed to have accepted the goods when he intimates to the seller that he has accepted them or when the goods have been delivered to him, and he does any act in relation to them which is inconsistent with the ownership of the seller, or when, after the lapse of a reasonable time, he retains the goods without intimating to the seller that he has rejected them.

Having regard to the provisions of this section I do not think that on the facts which I have quoted there was an acceptance of the blocks by the respondent at the place of delivery. I do not agree that acceptance must necessarily be inferred from the fact that the respondent was afforded full opportunity of examining the blocks at the time of delivery. Section 35 of the Sale of Goods Ordinance does not in my view mean that. I understood it to mean that a buyer will be so to speak presumed not to have accepted goods unless and until he has been given a reasonable opportunity of inspecting them. In my view, the respondent received the blocks on the site and then purported to accept the good ones and reject the inferior ones when they reached his building site.

It is further contended by the appellant that the respondent was precluded from rejecting the inferior blocks by section 13 (1) (c) of the Sale of Goods Ordinance which reads as follows: —

"(c) Where a contract of sale is not severable, and the buyer has accepted the goods, or part thereof, or where the contract is for specific goods, the property in which has passed to the buyer, the breach of any conditions to be fulfilled by the seller can only be treated as a breach of warranty and not as a ground for rejecting the goods and treating the contract as repudiated, unless there be a term of the contract express or implied, to that effect."

I agree with this submission. The contract being for the purchase of 1,500 blocks was a non-severable one though divisible in performance to this extent that the purchaser was not obliged to take delivery in one lot but at his option within a reasonable time. In furtherance of the contract the respondent received the blocks on 15 occasions and the inferior blocks were mixed with the good ones which the respondent clearly accepted. Having accepted part of the blocks from the deliveries which included inferior blocks the respondent came clearly within section 13 (1) (c) and could only treat the breach of the condition relating to the quality of the rejected blocks as a breach of warranty and was not entitled to reject the inferior blocks only and accept the good blocks which were delivered together with them. He could only accept or reject the whole delivery.

It seems to me also that the learned Magistrate was wrong to hold that the respondent was entitled to reject the inferior blocks under section 30 (3) of the Sale of Goods Ordinance. Commenting on this section Benjamin in his treatise on Sale says at page 718:-

"The word "description" in section $30(3)$ is to be strictly construed. Thus, where goods of the kind ordered were delivered, but some of them were of inferior quality, held, that the case was not within section 30 (3), and the buyer could not accept such part only of the goods as was according to the contract, and reject the rest: his remedy is to accept or to reject all (Aitken, Campbell and Co. v. Boullen, (1908) Sess. Cas. 490)."

In my view therefore the learned Magistrate should have held in this case that the respondent had no right to reject the inferior blocks but was only entitled to a diminution in the price of the 177 blocks admitted in the pleadings to be of inferior quality. On the evidence tendered the value of the rejected blocks should be Sh. 9 less per 100 than the good quality ones and on this basis there should have been judgment for the plaintiff for Sh. 809/07. The judgment of the learned Magistrate will be altered accordingly. The appellant will have the cost of this appeal.