D. PITSILADIS & SONS, Applicants-Defendants v. ISMAIL GAMALNA, Respondent-Plaintiff
Sale of Goods-Specific goods in deliverable stale-Passing of ownership and
risk-Liability for damage to the goods where left with vendor during
rains
In June 1939 applicant sold to respondent 90 sacks of garad, then
stacked on a certain verandah at Singa, at PT.75 per ardeb. Applicant war-
ranted the garad to be good, free of dust and undamaged by rain. How-
ever. respondent did not take delivery until January 1940, when the garad
was found deficient. The District Court awarded respondent damages, and
applicant applied for revision.
Held: (i) The sale was of specific goods in a deliverable state and
both the ownership and the risk passed to the respondent in June 1939,
hence the loss fell on respondent.
(ii) Had the ownership not passed, the respondent would have still
borne the loss because his failure to take delivery was the cause of the
damage.
Revision
July 18, 194p. Cumings J.: The parties were in dispute as to
the garad sold by the applicant to respondent, and about durra sold
by respondent to applicant. The latter matter has been settled by
agreement, and so this application now only concerns the garad.
The contract of sale of the garad is in writing and has been ad-
mitted in evidence as Exhibit A. I hold that it is a contract of sale of
specific goods in a deliverable state, that is, a certain 90 date sacks
filled with garad (warranted to be good, free of dust and undamaged
by rain) stacked on a certain verandah at Singa, at a price of PT.75
the ardeb. I hold that it was not the intention that the seller should
weigh the garad and inform the purchaser, but that the intention was
that on delivery, which was to be on the demand of the purchaser, the
garad should be weighed in the presence of both parties to ascertain
the exact sum due. Against the purchase price 210 rn/ms was paid
at once, and the balance was to be paid on delivery. On that J hold
that the ownership in the garad passed at once to the purchaser and
the risk also. This was in June 1939, It was not until January 1940
that the purchaser took delivery and it is clear that there was then
a deficiency in the garad--quite how large a deficiency is in dispute.
As the purchaser took no trouble all these months to go and look at the
garad, we have only the seiler's word that all the deficiency is the
result of damage by rain in the Kharif. I accept that, and tbe result
is that the loss falls on the purchaser at whose risk the goods were.
But even if r am wrong in holding that the ownership and risk
passed at once to the purchaser, I still think that he is not entitled
to put this loss on the seller. For the purchaser knew that the goods
were on a verandah, and in sacks, and so presumably exposed to the
rains, He could have come for them at once, but instead he chose
to leave them there for six months all through the rains. He cannot
require the seller to store safely the goods aU that time. He himself
in the durra matter claimed damages when the other did not take de-
livery of half the durra for a month after the sale; here he does not
take delivery of all the garad for six months, yet he does not offer to
pay for storage. So I hold that the loss was caused by the purchaser
not choosing to take delivery, but instead choosing to leave the goods
there all through the rains, and it would be unfair to make the seller
liable for that loss. 1
The decree of tl,::! district judge will therefore be varied by omitting
all damages for the garad (there being no counterclaim by the seller).
Appeal allowed
t Editor's Note: Compare at this point the proviso to section 20 of the Sale
of Goods Act, 1893 as set out below:
"20. Unle s otherwise agreed, the goods remain at the seller's risk un-
til the properv therein is transferred to the buyer, but when "the property
therein is tr.snsferred 10 the buyer, the goods are at the buyer's risk
whether delivery has been made or not.
Provided that where delivery has been delayed through the fault of ei-
ther buyer or seller the goods arc at the risk of the party in fault as
regards any loss which might not have occurred but for such fault."