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 buyer's agent-Whether contract enforceable.
Case summary
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):
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.
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 contract did not fall within the exception to section 6, and as there was no memorandum in writing, the contract was unenforceable by suit.
A carrier, prima facie, is the buyer’s agent but only when he holds the goods 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.
Counsel:
S.R. Kapila for plaintiff firm.
D.V. Kapila for defendant firm.
