Case No.:

(AC-APP-8-1960).

Court:

Court of Appeal

Issue No.:

1960

Principles

·  Contract - Accord and satisfaction - Substituted conditional unless otherwise intended

·  Damages - sale of goods -Nondelivery- Normal measure differenie in market price at time of delivery

By Written agreement dated October I3, 1954, defendant (appellant) agreed to sell to plaintiffs (respondents) 200 tons, ground nuts at £. 3 per ton and received £1,900 earnest money. The whole amount s as to be delivered in two lots of 100 tons each in November and December respectively. Until December 22, 1954, the defendant wa unable o make any delis erlec under the contract, On that date, the parties agreed that toe original agreement shoulc be anered b, reducing the amount to be delivered under the contract to 100 tons provided the time for delivery be teaSed as esseitial to the ness agreement and if broken, the orignal agreement would be considered as binding. The defendant still
*failed to deliver during 1954 and in January 1955 delivered 50 tons or thereabout which plaintiffs accepted towards performance of the original agreement and— on defendant’s failure to deliver the balance—purchased an equivalent amount at a higher price than that contracted for

In an action to recover damages, defendant set up the second agreement in defence and challenged plaintiffs’ right for the sshole difference between the market price and the contract price.
Held: the second agreement being broken by defendant, it cannot be set up by him in discharge by way of accord and satisfaction of the original agreement and that plaintiffs were entitled to the whole difference of price by way of damages

Judgment

(COURT OF APEAL)

ABDIN MOHAMED ARSID v THE NILE IMPORT AND EXPORT CO.

(AC-APP-8-1960).

Summary appeal

Advocate: Henry Riad…..        far applicant

August 7. 1960. Babikir Awadalla J.: —This application has no prospect of success and in my opinion should be summarily dismissed.

I entirely agree with the Honourable the Judge High Court that the new agreement of Deccmber 22, l954 is not binding on the respondents not because—as the Judge High Court considers—it is not supported by con cideration, but because being a conditional agreement it cannot operate by way of accord and satisfaction unless and until it is executed by delivery of the ioo tons in December 1954. In order that the cause of action may he released in such cases as this, the second agreement must be executed by doing the thing agreed to be done. In this particular case, it was agreed that if the second agreement is not performed, the original agreement shall hold good.

I also entirely agree with the Honourable the Judge of the High Court that respondents are entitled to be paid the difference in price; it being an uncontested principle that it a person who has agreed to supply goods fails to do so, the other party may buy the like goods elsewhere and charge the party who has broken the contract with the diflercnce in price as the damage he has suffered. There is abundant evidence that the damage in this case was 600m/ms per ardeb.

Finally. I also agree with the Honourable the Judge of the High Court that there is no evidence to support the counterclaim for recovery of the illeged loan, i.e, the advancement itself was not proved. The dismissal 0 the counterclaim was, therefore, in my view correct.

A. Abu Rannat C.J.: —I agree Appeal is summarily dismissed under rule 135. Order Xl of the Civil Justice Ordinance.

                                         (Appeal summarily dismissed)

Court: Abu Ranat C.J.and B.Awadalla J.: