Contract-Repudiation-Whether non-delivery by seller of earL., irutai'mmts in
contract of sale entitled the buyer to repudiate the contract

Damages-Sale of goods-Measure of damages for non-delivery

Sale of Goods-Delivery-Whether non-delivery by seller' of early instalment&

entitles the buyer to repudiate the contract

When a seller of goods breaches a contract of sale by not de~vering
early instalments, and then subsequently promises to make an future de-
liveries and offers to compensate the buyer for damages caused by the nOR-
d.6fiveries, he is liable to . the. buyer for the damages caused by the non-
Ideliveries, but the buyer is not entitled to repudiate the whole contract and
refuse to receive delivery of remaining instalments. The rule stated by the

• Court: Halford

Court of Appeal is that repudiation is allowed in these circumstances only.
when the seller has shown an inte~tion to not comply with his obligations
under the contract.

Millers Kasri and lasreh Co. v. Weddel Turner: cfi Co. (1909) 100 L.T. 128.
English Sale of Goods Act [893, s. 31 (p. 1.0L)~

Action

Advocates: Mr. Francoudi
defendant

June- 15, 19'!z~. Halford J.:- Byr an; agreement dated May 22,
1928 the. plaintiff purchased from the; defendant 100 tons of cement
Bonin brand, deliverable Ire hundredl kito' bag; c.il. Port Sudan in
monthly instalments of f5 tons and pa¥able by 6(}: days sight drafts.

'The; first 1'5 tens under this; agreement were delivered early in
August but by- tea-scmi of defen:d'anfs, de:Fault ill! delivery of the subse-
quent monthLy; consignmerrts, the praimiff repudiated the whole con-
tnact and now- eiauns £E.81.3J6 m/ms as damages representing the
dilIerence; between tfre contract price-and the market price in Khartoum
at: the date <ilf the defendant's Marllt.

Defendarrs maintains that 011 tendering, in November, the second
consignment he offered to compensate the plaintiff for the loss he had
sustained by reason of the prior defective deliveries only and repudi-
ates any fUrther liability in. respect thereof. His contention that there
was no breach of contract which is in issue is negatived by his ad-
mission of the defective deliveries.

Hence the only issues which ar~ left for determination are:

1. Was the plaintiff entitled to repudiate the whole contract by
reason of defendant's failure to deliver between August and November?

2. On what basis are damages to be assessed?

Section 31 of the Sale of Goods Act! provides that if in such con-
tracts as these the seller makes defective deliveries it is a question in
each case depending on the terms of the contract and the circum-
stances of the case. whether the breach of the contract is a repudiation
of the whole contract or only a severable breach giving rise to a claim
for damages but not to a right to treat the whole contract as repudiated.

1 Editor's Note: Reference is to the English Sale of Goods Act 1893.

Needless to say there is a whole body of case law on this section,
the rules applicable by the court being cited in Benjamin on Sales,.
6th ed., p. 835.²

The general rule of law is that the buyer is not entitled to repudi-
ate unless 'the seller has shown an intention' on his part not to comply
with his obligations under the contract. It has been held that if a
partial breach is of such a kind or takes place in such cireomstances
as reasonably tend to the inference that similar breaches will be c0m-
mitted in relation to subsequent deliveries, the whole contract may
then and there be regarded as repudiated and may be rescinded,
whether the breach is in payment by the buyer or delivery by - the
seller. Millers Kasri-and lasreh and Co. v. Weddel Turner and Co.,
(1909) 100 L.T. 128.

What are the circumstances of this case? From the correspondence
and evidence it is clear that the defendant was endeavouring not only
to assure future deliveries but to make good any loss which ~e plain-
tift may have suffered by reason of the defective deliveries. Hence it
cannot, in fairness, be inferred that the -defendant intended to commit
similar breaches, and I hold that in these ciromastances the plajotjff
was not entitled to repudiate the contract as a whole.

-><\g to the measure of damages, although the p1aintiff, keeps no
books or documents whatsoever, I am prepared to hold that he is en-
titled - to be compensated for the defective deliveries, that is to say,
those due in the first weeks of September, October and November on
the basis of the difference as represented by the local markt rate and
the contract price. I accept the evidence of the plaintiffs witness that
the market rate at the time was PT.550 per ton, representing a differ-
ence of 986 m/ms per ton on 45 tons or £E.44.370 m/ms.

Judgement will accordingly be entered for the plaintiff for
£E.44.370 m/ms on the claim together with full costs on this scale.
On the counterclaim for the price, judgement will be .entered for de-
fendant for £E.42.431 m/ms together with costs up to the date of
payment in, including half scale percentage fees.

All monies paid 'in are to remain in court pending taxation of
party and party costs."

Decree accordingly

• Editor's Note: See 8th ed. p. 726 et seq.
• Editor~ Note: An application for revision by plaintiff was dismissed with
  costs. AC·REV·18·1929.