COSTI LOISO, Appellant-Defendant .v. M. D. BITT AR, Respondent-Plaintiff
Sale of Coods=Reiection of non-conforming goods-Loss of right by delay
A person seeking to reject goods on the ground that they did not
satisfy the contract requirements must reject· them. at once and without
doing any act which shows that he intends to accept the goods ..
Appeal
The facts of this case as they appear from the case record are
shortly as follows: .
The appellant agreed to buy a petroleum launch from the re-
spondent. The material terms were that the sale was f.o.b. Port Sudan
and the price was £E130.
When the motor launch was delivered to the appellant he dis-
covered that it did not work with petroleum. Very shortly after
he took delivery the appellant wrote to the respondent criticising the
account rendered by the respondent and telling ~im that he was
going to reject the motor launch. The appellant, however, kept
the launch; had some repairs done to it, and used it for some 8 or
10 days. After that he purported to reject it and refused to pay the
price. The respondent thereupon brought an action claiming £E130
plus customs duty on the launch and freight from Port Sudan to
·Court: Wasey Sterry, Acting J.C.
Khartoum. Mr. Nigel Davidson, the Khartoum Civil Judge, held that
the appeUant had lost his right to reject and was liable to . pay the
price of the launch. He further held that the respondent was not
entitled to claim the customs duty paid on the launch because, although
the contract was described as an f.o.b. contract, it was not really so
and the evidence showed that the intention of the parties was that the
total price was the round sum of £E130.
June 7, 1909. Wasey Sterry, Acting J.C.: In my opinion the
appellant was entitled to reject the launch when he found that it did
not work with petroleum, but I agree with Mr. Davidson that he is
bound to make up his mind at once whether he accepted it or not.
It is true that he wrote a letter saying he would reject it on this
ground, but he accompanied it with a lot of criticisms of the account
rendered which was quite irrelevant if he rejected the launch. And
further he used the launch, bought petrol for it and had repairs done
to it for some 8 or 10 days before he finally again rejected it. This
seems to me inconsistent with rejection on the only ground on which
he was entitled to reject it.
Mr. Loiso has also raised a claim that he was only bound to pay
£E96 catalogue price of launch and £E5 interest and £E6 profit
and freight from America. All I can say as to that is that Mr.
Bittar's story that the price was. to be the round sum of £E130
is confirmed by Ibrahim Alcie, Mr. Loiso's own witness.
The appeal will therefore be dismissed with costs.
Appeal dismissed