Case No.:

(HC-CS-675- 1957)

Court:

The High Court

Issue No.:

1960

Principles

·  Sale of goods—Sale of paper—Sale by sample within sectwn 15 Sale of Goods Act— Sale by description vjthin section i Sale of Goods Act—Right to reject for breach of section 13 barred by acceptance of the goods within section 35 , Sale of Goods Act

·  Arbitration—Unilateral reference to arbitration—Admissibility of certificate or report

(i) Where goods are sold by sample, the buyer has no right to reject the goods for breach of the conditions implied by section 13, Sale of Goods Act, if he has accepted the goods. Nor can he sue for damages if, on the facts of the case, he has suffered none.

(ii) A report or certificate of an ‘ arbitrator” made on the basis of a unilateral application by one party and not consented to by the other party is not an award and is not admissible.

Judgment

(HIGH COURT)

ABU NIGMA GENERAL STORES v. PROOST PAPIER

(HC-CS-675- 1957)

Action

Advocates: Ahmed Gumaa……….. for plaintiffs

                   E.M. Kronfli………….. for defendants

March 2, 1960. Tewhk Cotran Acting I.: —The plaintiffs are a firm in Khartoum, Sudan. The defendants are a firm in Amsterdam, Holland. On September 23, 1955. The plaintiffs ordered from the defendants, through the latters’ agents in Khartoum (The Nile Export and import Co., Ltd.) 20 tonS of Grey Wrapping Paper, size looX75 cms. 6o grs., in bales of 50 kgs, gross/net, size of sheets 100 X 75cms., folded in halves so that after folding the size should be 75 x 50 cms., of Italian origin, at £S.52,000 per ton. The order is No. A/1699/MM and is Exh. Doc. 1. Under Conditions” it is stipulated as follows: “This order is booked ... etc. . . . In case of wrong execution of order or the goods not being in conformity buyers have the option to reject same but acquire no right to an indemnity.”

It must be noted that on this order there is no mention at all of a sample but it is clear that plaintiffs were shown a sample by defendants’ agents. The sample that was shown is Sample A (Exh. A.1 and A.2) This sale, therefore, appears to me to be both a sale by sample (Sample A) and sale by description (Grey Wrapping Paper). The defendants, who confirmed the description of the goods bought and stated “as per sample Ref. 732.210”, I do not find in the exhibits produced or in the evidence any reference to this number. I must take it to mean the sample, which the plaintiffs were shown by defendant’s agents, which was grey in colour, Exh. Sample A (A.i and A.2). The defendants allege that representative shipping samples were despatched in December, I955. The defendants’ evidence on this point is on commission. The plaintiffs deny receipt of same and insist that the only sample they saw was the one shown to them by defendants’ agents. I prefer plaintiffs’ evidence on this point. The confirmation of the order is Doc. 9 and there is a printed clause at the bottom which says Unless otherwise arranged, this order is subject to the general Trade Rules adopted by the Paper Makers’ Association of the country of origin.” In my opinion this clause is completely valueless and ineffectual. No copy of the alleged Trade Rules of Italy was produced and whatever was said about them appeared very sketchily in the evidence of Mr. HeiTdrik Jager which was taken on commission and was not subject to cross-examination. I do not think that the sellers or the buyers or the other witnesses know what are the Rules of the Italian Paper Makers’ Association. This court does not know them either.

All the goods (two lots of io tons each in a total of 400 bales) arrived some time in March 1956There was something wrong with these goods in two ways: First, some of them were wet. Secondly, they did not correspond with the sample or the description. As to the first complaint. a Lloyd’s survey was made and it was found that I bales out of 400 bales were wet. Lloyd’s assessed the depreciation in value of the damaged goods to have been 25 per cent. and awarded plaintiffs the sum of £123 14s. 8d. (Exh. Doc. 10). The plaintiffs must have argued with Lloyd’s agents about the assessment and finally got from them £S. in settlement.

As to the second complaint the buyers claimed that the paper supplied was not according to sample and was of inferior quality. Some negotiations ensued between the buyers and the sellers. The c.i.f. price per ton was £S.52 The buyers claimed a diminution of price of £S.17per ton. The sellers offered a diminution of £S.5 per ton. There was an apparent deadlock. The plaintiffs then unilaterally referred the matter to the Sudan Chamber of Commerce. The Sudan Chamber of Commerce then appointed a board of four persons who purported to examine the paper and finally decided that the plaintiffs were entitled to a diminution of price of £S.30 per ton, which amounted in all to £S.6oo. The plaintiffs are now suing the defendants for this sum. Let me say at once that there is not one iota of evidence to suggest that defendants agreed to appoint the Chamber of Commerce as arbitrators in the dispute. Plaintiffs in their letter to defen dants claimed £S.17 diminution in price and suggested to them that, if they wanted, they could obtain a certificate from the Sudan Chamber of Commerce. Later the agents of the defendants wrote to their principals suggesting to them arbitration, but defendants never accepted arbitration.

They did offer plaintiffs £S 100 (Ls. 5 per ton) diminution in price. There fore the Certificate from the Chamber of Commerce is not an award and is not strictly speaking admissible. It is obvious that the app1ic to the Chamber of Commerce was made unilaterally by the plaintjff this is clear from para. (I) Of the so-called award (Doc. 8) which state “By submission in writing dated December 11, 1956, Messrs. Abu Nigm Trading Co., merchants of Khartoum, requested the Sudan Chamber of Commerce to appoint a board to examine the quality of 20 tons grey wrapping paper imported by them from Messrs. Proost en Brandt N.y., Amsterdam, Holland.” None of the learned members of the Board ca forward to give evidence for the plaintiffs on oath and, with all resp to them, for all the court knows, they may all be grocers without tl slightest idea about the paper trade. In my opinion, to seek to adnut this report or certificate by calling it an award is a clumsy attempt to influence the judgment of the court.

In spite of this the court finds that the goods supplied were not in accordance with the sample shown to the defendants. Further, the goods supplied were not of the same description. The samples shown to plaintiffs by defendants’ agent are “Sample A.” The goods supplied are “Sample C”. They are different: for one thing one is grey and the other is light brown. But the court cannot fail to notice that what the plaintiffs have bought was very cheap wrapping paper. What was supplied to them was also very cheap wrapping paper. One is grey and one is light brown. The first thing that mes to my mind is the frivolity of the plaintiffs in trying to make something out of nothing. One may ask the question, what difference does it make to a customer if the goods he buys are wrapped with cheap grey or cheap brown wrapping paper? It is said that the goods supplied are coarser, rougher and easily torn. Again the court is unable to appreciate the difference; if anything I find that the goods supplied stand hai better than the sample, look more durable, more suitable, and less easily torn than the sample. In spite of these views, I think, stric speaking, I would probably have held that the plaintiffs wei’e enUtled to reject the goods. The fact, however, is that plaintiffs have very cle accepted the goods. The plaintiffs took delivery of the gogd they examined them; they alleged that they were not in accordance With sample. But they nevertheless accepted them and in actual fact, on theii own admission, they sold all the consignment. By section 35 of the Sale of Goods Act “The buyer is deemed to have accepted the goods when he intimates to the seller that he has accepted them or when rbe goods havc been delivered to him and he does any act in relation to them which 1$ inconsistent with the ownership of the seller, or when, after the lapse of a reasonable time, he retains the goods without intimating to the seI that he has rejected them.’ Thus, whilst their areTertain implied conditions when there is a sale by sample, claims under those implied conditions are barred after acceptance of the goods. In my opinion the plaintiffs’ claim fails:

(1) On the general rules relating to the sale of goods discussed above;

(2) Because there is an express term in the contract between the parties which provides “in case of wrong execution of the order or the goods not being in conformity buyers have the option to reject same but acquire no right to an indemnity “; and

(3) Because the plaintiffs, in any case, did not prove that they had suffered any damages. They paid £1,040 sterling for the goods. They used some and sold some for £S.9oo and they also got about £S.2oo from the insurance. Unless loss is suffered damages cannot be awarded.

Judgment is therefore entered in defendants’ favour.

                                                                          (Judgment for defendants)*

* Application for revision (HC/Rev./137/1960) struck off as having no grounds.