Principles

·  PERSONAL PROPERTY — Gifts — chattel — Not binding until chattel handed over unless by deed.

·  CONTRACT — Specific performance — Sale of chattel — Not unless sufficient evidence of a beauty or rarity” making it irreplaceable — Discretionary character of remedy.

·  CONTRACT— Damages — Sale of chattel — Difference between contract price and market value.

Defendant agreed to sell his deep-freezer to plaintiff and received earnest money therefore at a time when defendant’s wife unbeknown to defendant had agreed to give the freezer to a third party. The freezer was still in defendant’s possession at the time of the agreement with plaintiff. Plaintiff sued on the contract and demanded specific performance.
Held: (i) The gift of a chattel is not binding unless the chattel is delivered to the donee or given by deed.

(ii) Plaintiff’s contract will not be specifically enforced since there was evidence of such “beauty or rarity” in the deep freezer as would make it irreplaceable in the market.
(iii) Measure of damages in, a case for breach of a contract to sell a chattel is the difference between the contract, price and the market price of such articles at the time of the contract.

Judgment

S.M.A. Attig. P. 1., PC-REV-9-  1963 (Juba) May 12, 1963:- This is an application for revision of the decree of District Judge, Malakal, ordering specific performance of an agreement for sale of a freezer.

Applicant was the General Treasurer of the American Mission, who was notified to leave the Sudan within a limited period. So he determined to sell all his movables and accordingly prepared a list of the articles to be sold with the minimum price required for each. Both applicant and his wife started to sell the articles to the first offeror who offered to pay the price shown thereon.

Respondent expressed his intention to purchase a deep-freezer for the sum of £S.75 which price was shown on the list. He admitted that he was hesitant in making the offer and had only a promise from the applicant to accept his offer. A few minutes later, the respondent changed his mind and paid £S.10 to the applicant as earnest money, promising to pay the balance on the  next day and receive the freezer. This arrangement was made between the two parties at a time when the applicant’s wife had already offered the same to another American lady, Mrs. J. Lowrie Anderson, as a gift. Later on the same day applicant was told by his wife that the freezer had already been disposed of by her. and pay the balance applicant informed him that the freezer had already been disposed of by his wife without his knowledge, and he expressed his willingness to refund the £S.10. Respondent refused and insisted on having the freezer on the strength that there was a binding contract between them. Applicant offered to pay another sum of £S.10 as damages for the breach of contract but respondent refused and brought this action.

The contention of the applicant that the freezer in question had already been disposed of by his wife at the time of their contract is groundless as the disposition was on the strength of a gift. A gift of a chattel is not good and binding unless it be by deed or unless the thing which forms the subject of the gift be actually delivered the donee, even though the party to whom the gift is made has possession of the chattel at the time as there is no equity to perfect an imperfect gift.

In the circumstances, the contract between the parties is a good contract binding both parties to it. But should this contract be specifically performed ?

Specific performance is an equitable remedy at the discretion of the court granting the same. This does not mean that the decision is left to the uncontrolled caprice of the individual Judge, but that a decree which would normally be justified by the principles governing the subject may be withheld if to grant it in the particular circumstances of the case will defeat the ends of justice.

As a general rule, a specific performance shall not be decreed where damages at law will give a party the full compensation to which he is entitled and will put him in a position as beneficial to him as if the agreement had been specifically performed.

Usually damages afford sufficient remedy in all cases in which chattels are claimed except in certain cases where the subject matter is an article of unusual beauty or rarity: the burden therçfore lies on the plaintiff to prove that the article sold is of beauty or rarity that it couldnot be found in the market. In such cases, damages would be inadequate and the court usually decrees specific performance.

The court also refuses to decree specific performance when doing so wouid cause hardship on the third party or where there is no mutuality.

In the present case respondent failed to prove before the Court belos that the freezer is of unusual beauty or rarity. On the contrary, it could be easily obtained from the market and damages in this particular case will be an adequate remedy. The measure of damages in such cases is the dif ference between the contract price and the market price of such articles at the time of the contract.

In the circumstances, I have no alternative but to order that the decree of the District Judge be set aside and the case he sent back for assessment of damages.

Although this appeal was out of date, I have thought fit to entertain it in the exercise of the inherent power of thiscourt so to do under Civil Justice Ordinance, s. 226.

M. A. Ahu Rannat, C J., November 5, 1963:— After perusal of the record of this case,  I find myself in full agreement with the judgment of the learned Province Judge. In my view the application for revision has no merits and I hereby summarily dismiss it.

Editors’ Note: But see the following on issue of measure of damages: Sarkis Izmirlian v. Dhanjee Bhanjee Patel, HC-CS-238 - 1960, (1963) S.L.J.R. 100. Restatement, Contracts, s. 329, Illustration 1: the market price “at the time and place of delivery”. Sale of Goods Act of 1893 (56 and 57 Vict.c.71) s. 51 (3): “the difference between the contract price and the market or current price of the goods at the time or times when they ought to have been delivered ... ‘ Mayre and McGregor, Damages 336 (12th ed. McGregor 1961). Chalmers, Sale of Good.t Act, 149-150 (14th ed. Sieghest 1963). Atiyah, Sale of Goods Act 204-207 (2nd ed. 1963). I Chitty, Contracts 581-582 (22nd ed. 1961). Cheshire and Fifoot, Contracts 501 (5th ed. 1960)