Case No.:

AC.APP 12-1960

Court:

Court of Appeal

Issue No.:

1961

Principles

·  Contract_FruStratm0n_D in transport does not excuse non .performance.

Difficulty in transport is not an event so outside the contemplation of the parties and striking at the basis of the contract as to cause frustration excusing non .performance by the vendor.

Judgment

)COURT OF APPEAL*(

PITSILAIDS BROTHERS V. SUDAN TRADING CO.

AC.APP 12-1960

advocate: Abdel Rahman Yousif ... for the defendant applicant

 M.A.Abu Rannat C .J. October 3.1960 , this is an application against the decree passed by the Judge of the High Court. Khartoum (Osman El Tayeb J.). on July 10. 1960. in favour of respondents (pl. in HC-CS 23

The facts. which were clearly stated in the judgment appealed from. are as follows by virtue of a written contract dated January 23. 1959. dcfendants agreed to sell the quantity of coo tons of durra fatarita at the pry e of £5 17 6oo per ton cleaned of new crop. to he delivered in stores in Port Sudan by March 13 .1959  Plaintiffs paid and defendants received various

sums amounting to £S.5.795.000 By the stipulated date defendants delivered only 211.5 tons and failed to deliver the balance

Plaintiffs sent to defendants a wire dated April 1, 1959, reminding them that the goods were to be shipped abroad in the middle of April and warning them to arrange delivery at Port Sudan at the latest by April g. On April 7, another wire was sent to defendants informing them that they instructed brokers to cover the deficit from the market. A third wire was sent to defendants telling them that they bought at the price of £S.22.5oo per ton. Defendants made no reply to all these wires.

During April and May respondents bought the quantity of 288.5 tons from the market a the current market price, which was £S.22.500. There fore the difference between the market price and the current price is

£S.4.900

Plaintiffs are claiming the difference between the sum they actually paid and the value of the durra actually delivered to them by defendants. They are further claiming the difference between the contract price and the market price at which they bought the undelivered amount.

Applicants attempted to rely first on the doctrine of frustration by alleging that applicants are excused from their obligations through im possibility of performance due to the lack of the existence of durra in the market at the agreed time and place of delivery, which difficulty was exclusively created by the difficulty of transport for lack of railway wagons.

Their contention does not apply to this case. Durra has never been non existent, and the difficulty of transport could not constitute an impossibility such as to excuse performance. The difficulty of transport can never come within the definition of impossibility of performance “In general. how ever, if an event occurs which was outside the contemplation of the parties and which strikes at the basis of the contract so as to frustrate the practical purpose of the contract, the further performance of the contract is excused.” 8 Halsbury, Laws of England 178 (3rd ed., 1954).

As regards the second point, it is well established that when a seller fails to deliver goods, what the buyer is deprived i in the usual course of things is the value of the goods at the time and place of delivery, less the price payable by him under the contract.

The time and place of delivery in this contract, the subject of the deficit, was March 3! at Port Sudan. Respondents, on other hand, by their wires of April 1 and April 7, extended this time. They did this tO give appellants a fair chance of honouring their obligation under the contract. Accordingly the time of delivery should be taken to have become April 7 instead of March 31.

On April 18, 1959, respondents bought 150 tons at £S.22.500 per ton. The evidence adduced indicates that the rise in the price of durra was very

gradual and ac no difference could be expected to have taken place between April 7 and April 18 as the price was going up.

The court was right in judging the market price to be £S.22 at the time of delivery.

This application is, in my view, hopeless and should be summarily dismissed under Civil Justice Ordinance, Order Xl, r. 13A.

M. A. Hassib J. October 3,1960 is a claim for damages base( on breach of contract for sale of durra which was not duly supplied.

The facts are mainly admitted and the suit was tried on whether plaintiffs were entitled to damages amounting to £S.3.592.348. being t’ damages awardable by law. It is. However , admitted by defendants That they failed to deliver 288.5 tons in time. The trial court carefully With the question of the quantum of damages and found that the difference between the contract price and market rice at which the plaintiffs the quantity not delivered was the amount decreed.

The court’s decision was no doubt covered by the rule in Hadley v. Baxenda!e (1854) 9 Ex. 354.

The application, therefore, is hopeless and I agree it should be dismissed summarily under Civil Justice Ordinance, Order Xl, r. 13A.