(HIGH COURT OF JUSTICE)

IDRIS EL MUBARAK vs. MOHAMMED EL FAKI AWADALLA

(H.C.-REV-49-56)

 Revision

Principles

·  Quantum ., Meruit—Breach of contract by plaintiff—whether. money paid in advance by plaintiff recoverable.

·  Practice—counter-claim—stay, proceedings to give Applicant opportunity , to enter counterclaim

Applicant agreed to transport 700 sacks of salt for Respondent from Kurmuk in the Sudan to Baika in Abyssinia at a certain rate. Respondent agreed to pay all
customs dues, and he paid 8000 Abyssinian dollars to Applicant in advance for the transport of the salt. Respondent failed to pay the duty on 565 sacks, and in consequence Applicant could not transport them from the frontier to the destination. Respondent claimed recovery  of a proportion of the 8ooo dollars.
 Held; Respondent was entitled to recover this sum, subject to a possible counterclaim for damages by Applicant for breach of contract. As Applicant had not entered a counter-claim, the proper course was to stay proceedings on the action until Applicant had an opportunity to bring a counter-claim.

Applicant agreed to transport 700 sacks of salt for Respondent from Kurmuk in the Sudan to Baika in Abyssinia at a certain rate. Respondent agreed to pay all
customs dues, and he paid 8000 Abyssinian dollars to Applicant in advance for the transport of the salt. Respondent failed to pay the duty on 565 sacks, and in consequence Applicant could not transport them from the frontier to the destination. Respondent claimed recovery  of a proportion of the 8ooo dollars.
 Held; Respondent was entitled to recover this sum, subject to a possible counterclaim for damages by Applicant for breach of contract. As Applicant had not entered a counter-claim, the proper course was to stay proceedings on the action until Applicant had an opportunity to bring a counter-claim.
 

Judgment

On 17.5.1954 the parties entered into a written contract whereby the Applicant agreed to transport for the Respondent 700 sacks of salt from Kurmuk in the Sudan to Baika in Abyssinia within the period 17.4.54 to 57.6.54 at a certain rate. The Respondent agreed to pay all customs duties on both sides of the frontier, and the Respondent paid the defendant the sum of 8ooo Abyssinian dollars in advance. The Applicant transported 135 sacks to Baika, and 6o others to Assoussa. The remainder of the sacks werenot cleared through the Abyssinian customs owing to the Respondent’s failure to pay the dues. The Respondent brought an action claiming recovery of LE. 1709.472m/ms, being a proportionate part of the 8ooo dollars. The District Judge found for the Respondent but awarded him Only LE.888.557m/ms. The Applicant applied for Revision.

Advocates: Abdalla cl Hassan ……… for Applicant El Sayem Mohd. Ibrahim ………………....for Respondent

M.A. Hassib, J. (The learned Judge stated the facts, outlined the proceedings in the Court below, and continued).

On dealing with-the Respondent’s claim for recovery of the balance of the 8ooo dollars, the District Judge decided that the doctrine of “quantum meruit” ought to be followed. He quoted the statement of Smith, L.J. in Sumpter v. Hedges [1898] 1 Q.B. 673, which reads The law is that where there is a contract to do work for a lump sum, until the work is completed the price cannot be recovered ... It is suggested, however, that the plaintiff is entitled to recover for the work he did on a quantum meruit. But in order that he may do so, there must be evidence of a fresh contract to pay for the work already “done”.

In his application for revision the learned advocate for the Applicant challenged this finding, and it is now necessary to deal with this question. The Respondent himself had done no work for the Applicant, and in the circumstances it is clear that the first requirement of a claim based on quantum meruit is lacking. The learned District Judge was mistaken in thinking that the doctrine had any application to this case.

The real question is now whether the Respondent can recover the money in respect of which no work had been done by the Applicant owing, as has been found, to the Respondent’s breach of contract. In my opinion  the Respondent is entitled to do so, but the Applicant is, at the same time, entitled to damages for the Respondent’s breach of contract. Unfortunately this point was not made an issue, as the Applicant did not set up a counter-claim, and the Judge apparently did not realize that such damages should be set-off against the Respondent’s claim. I find that a decree in favour of the Respondent for the balance of the 8ooo dollars without taking notice of the Applicant’s right to damages for breach of contract would not be in accordance with justice.

It is clear that, although the Respondent is entitled to recovery on an implied contract for money had and received, yet the Applicant is entitled to damages for the Respondent’s breach of contract. This claim cannot, however, be quantified without further consideration. The damage claim can now be dealt with by an action in the District court, provided that the decree infavour of the Respondent be kept in abeyance for a reasonable time to allow the Applicant to bring his claim for

damages. The Applicant will be allowed six months in which to bring his action.

                                                                                  (Orderaccordingly)