Damages-Sale of goods-Breach of implied condition of fitness

Sale of goods--Implied condition as to fitness-s-Breacli-s-Acceptance of goods-
Suit for damages

Where a person buys goods from a seller for a purpose known to the
seller, and in such a way as to show that he is relying on the seller's
skill and judgement, and where the goods are of a description which it is in
the course of the seller's business to supply, the law implies a condition that
the goods are reasonably fit for the purpose stated.

English Sale of Goods Act 1893, s. 14 (1).

Action

When in Khartoum in 1932 the defendant made a verbal agree-
ment with the plaintiff to purchase a mineral water plant for the sum

of £E.7S.000 m/ms. No express conditions were laid down, nor had
the defendant any opportunity of inspecting the plant which was then

at Singa. But arrangements were made for its shipment to Juba
where the buyer was trading as soon as it should be delivered in
Khartoum. It arrived at Juba early in January 1933 and shortly
afterwards the defendant subscribed promissory notes for the price _..
which, including certain accessories, amounted in ali to the sum of
£E.89.7S5 m/ms. Against this sum the defendant has made but
one payment of £E.7.500 m/ms, leaving with certain miscellaneous
expenses a balance of £ E.82.875 rn/rns which the plaintiff claims to
recover in these proceedings.

It has been no easy matter to elicit from the defendant his answer
to the claim. He does not deny the making of the promissory notes,
but in effect pleads a reduction in the sum claimed on the grounds of
breach of warranty. It was a condition of the agreement of sale, he
contends, that the plant should be in proper working order, whereas,
as events have subsequently proved, the machine has never produced.
marketable minerals nor fulfilled in any degree the purposes for which
it was bought.

In these circumstances the following issues were framed:

(a) Whether it was a condition of the sale that the machine was
to be in working order?

(b) If so, whether defendant can reject the machine?

(c) Whether in the alternative there has been a breach of war-
ranty?

(d) Whether in that event defendant is entitled to a sum by way
of diminution or reduction of the price?

(e) What sum in the result does defendant owe plaintiff or vice
versa?

As regards the first issue, the circumstances in which the agree-

ment was made leave no doubt in my mind that there must be implied
into it a condition that the machine was reasonably fit for the particular
purposes for which it was required and was capable of producing min-
erals of the requisite standard of quality for consumption by the
community at Juba.

According to the English Sale of Goods Act for such an implied
condition to exist, the buyer must have made known to the seller
the particular purpose for which the plant was required, he must be
shown to have relied on the seller's skilt and judgement, and the goods
must have been of a description which it was in the course of the
seller's business to supply. All these conditions were coexistent in this
case. The seller knew the purpose for which the machine was to be
used, the buyer showed by his acceptance without inspection that he
relied on the seller's skill and judgement, and the seller had had ample _
experience in the running of such plant. It is quite. clear from the
evidence of the mechanic and of the witnesses who were examined
on commission at Juba that this implied condition was not fulfilled, for

in spite of repairs effected locally, no minerals of marketable quality
were ever produced. This disposes of the first issue in favour of the
defendant.

Now the breach of this implied condition would have entitled the
buyer to reject the machine provided that he could show that he had
not accepted it or that the property in it had not passed to him. But
in this particular case I am of opinion that he must be deemed to have
accepted it, for in his letter to the seller dated January 29, 1933, he
intimated as much, and expressed the hope that he would have no
further trouble on the plant from thenceforward. His request some

two months later to the seller to send a mechanic at his (the buyer's
expense) is hardly consistent with the ownership of tbe seller. He is
further unable to show a positive act of rejection within a reasonable
period of delivery. In my view therefore, the buyer must fall pack on
his alternative remedy, namely that of waiving the breach of condi-
tion, treating it as a breach of warranty and pleading the defect in the
goods as a defence to the claim for the price. -A cross action for the
amount of "damages I think unnecessary. If I am right in this, the
second issue must be answered in favour of the plaintiff and the third
and fourth issues in favour of the defendant.

It remains to assess the sum which the defendant is entitled to set
off by way of damages against the purchase price. This sum must
represent the estimated loss directly and naturally resulting ill the ordi-
nary course of events from the breach. That is to say, th~ buyer
must be allowed such a sum as would compensate him for the loss
he has suffered due to the fact that the plant was not fit for the purpose
for which it was supplied. Items such as the return fare of the
mechanic together with the cost of his keep for say-it period of one
month while actually employed on the repairs, the estimated cost of
renewal and replacements, and a sum by way of loss of profit over a
period sufficient to enable the buyer to take steps to mitigate his loss are
to my mind proper to consider in this connection. In the case of the
first of these headings I shall allow a sum of £E.2 iDrespect of the
mechanic's keep and £E.7 for his fare. As to the sum necessary to
restore the machine to proper working order I shall allow the figure of
£E.12.500 m/rns, being half the cost of those spare parts which were
either essential or would in a short time have been required as esti- \
mated by the mechanic in May 1933. The assessment of a sum in res-
pect of loss of profit is a difficult matter, but I think in view of the
fact that defendant would have had a monopoly of the supply of min-
erals in Juba a sum of £E.10 per month is not unduly high. The ques-
tion then arises for what period should this sum be allowed. I think
that in this connection a period. of four months is reasonable for, by
that time the defendant could have made other arrangements if he was
still desirous of supplying mineral waters at Juba. I shall therefore
allow on this item the sum of £E.40.000 m/ms.

The case has been a difficult and unsatisfactory one to try
if for no other reason than the lack of reliable evidence. But I have
attempted to arrive at a result which while based on established prin-
ciples, appears to be fair to both sides.