Case No.:

AC-REV-243-1959

Court:

Court of Appeal

Issue No.:

1962

Principles

·  Contract—Acceptance—If oil e knows of mistake in offer, his acceptance does not bind offeror

Defendant asked plaintiff about the price of onions. Plaintiff replied by telegram: “Our price 400 and likely increase.” Defendant then sent a telegram to plaintiff stating: -- if you find good quality price 400 purchase and inform us.” This telegram arrived saying “500” instead of “400.” Plaintiff purchased 100 sacks and telegraphed defendant: “ 100 sacks at your price transfer money.” Defendant transferred money equal to the cost at 400. Plaintiff asked for the cost at 500 and sued for the difference when defendant refused.
Held: if the receiver of an offer by telegram knew, or ought to have known, that there must be a mistake in the wording of the telegram, he cannot, by accepting, bind the offeror.

Judgment

(COURT OF APPEAL) *

AHMED EL SADDIG v. RAHMA EL FIRIE

AC-REV-243-1959

Osman El Tayeb P.1. PC-REV-17-1958, (Ed Darner) :—Plaintiff is a commission agent at Shendi; defendant is a merchant of El Obeid. it seems that defendant inquired from plaintiff about the price of onions. Plaintiff replied by his wire dated September 2, 1957, thus: “Our price 400 and likely to increase.”

Defendant sent his wire dated September 5, 1957, thus: “If you find good quality price 400 purchase and inform us This wire was i by plaintiff stating the price as “coo.” It was a mistake in transmission by the Post Office.

Acting on this mistaken wire plaintiff purchased Too sacks of onions and informed defendant by wire, dated September 7, 1957, thus: “ 100 sacks at your price transfer (money).” it seems that defendant transferred money equal to the cost at the price of 400 P.T. per two sacks, and the goods were consigned to Plaintiff asked for the balance at the price of 5oo P.T. and defendant to pay it.

There is a mistake as to the price; plaintiff offered to sell at the price of 500 P.T. per two sacks of onions and defendant accepted to purchase at the price Of 400 P.T. per two sacks. The mistake was brought ‘about by wrong transmission of the telegram of defendant, dated September 1957.

In the first place it may be considered as settled that “neither of the parties is bound by any error in the transmission of his telegram, the Post Office being an agent only f- or purpose of trans t in the terms in which they are received.” 8 Halsbury, Laws of England 8o (3rd d. 19 In one case defendant wrote a message for transmission by telegraph to plaintiffs ordering three rifles. By mistake the telegraph clerk

telegraphed the word “the” for “three “; and plaintiffs thereupon acting upon a previous communication with defendant to the effect that he might perhaps want as many as o rifles sent that number to him. Defendant declined to take more than three. In an action against him to recover the price of the o rifles, it was held that defendant was not responsible for the mistake of the telegraph clerk, and therefore plaintiffs were not entitled to recover the price of more than three rifles. 1-lenke! v. Pape (1870) L.R. 6 Exch. . On this authority defendant is not responsible for the con sequences of the error in the transmission of his telegram.

But in the second place, if the mistake was mutual, it may be considered that the contract was bad or in the circumstances of this case, as the goods were consigned and received, that the price was not agreed upon. That there was no consensus ad idem in respect of the price. If this were the case, the defendant would be liable for payment of a reasonable price. What is a reasonable price as a matter of fact: it may be the price f6r which plaintiff obtained the goods and may be the market price at the material time or otherwise.

The first telegram of plaintiff dated September 2, 1957, in which he told defendant that the price was about 400 P.T. brings about some doubt as to whether the mistake was mutual. It may be inferred from it that plaintiff knew or must have known that there was a mistake in the wire of defendant ordering onions at the price of 500 P.T. If this is so then plaintiff would not be entitled to recover anything.

On the above grounds the case has to be sent back for retrial.

M. 1. El Nur J. November 22, 1959; - my view there is nothing in this application, which justifies its adjournment to the Court of Appeal.

I am in full agreement with the finding by the learned Province Judge that respondent was not at all responsible for the mistake in the trans mission of his telegraphic message.

It was certainly clear that applicant was not deceived by the mistake in transmission. Applicant said on September 2, I957 in his telegram to respondent that the price was £S.4 per ardab. Respondent wired back September ç, 1957, ordering 100 ardabs at £S. By mistake in transmis ‘of t telegram the figure £S.4 was given as £S. It is most unconceivable that respondent to whom the price quoted by applicant as £S.4 to have without reason raised it to £S. Nor was it conceivable that the prices had in fact rose up to £S.5 in two days’ time. This clearly shows that applicant was quite aware that the price of £S. which appeared in respondent’s telegram was a mistake and he simply wanted to make use of it. Any reasonable trader would have in such circumstances wired back inquiring whether there was any mistake in the figure given.

In my view, therefore, this application should, subject to the agreement of the Chief Justice, be summarily dismissed.

M. 4. Abu Rannat Cf. November 23, 1959: —Application is summarily dismissed.

* Court: M. A. Abu Rannat C.J. and M. 1. El Nur J.