elva Practice' and Procedure-Adioumment-Refmal of iudge to postpone trial
while appellant's advocate was away-Reading denied

Sale of Goods-Delivery-Onus of proving delivery-Whether any duty imposed
upon buyer to notify seller of no1wlelivery within a reasonable time

On July 16, 1918, the appellant verbally agreed with the respondents
to sell to them 8 bales of gunnies. On the same day, and while in the
respondent's office, he telephoned one Hakim to make delivery of the
goods. The price was paid to the appellant, but no goods were ever de-
livered to 'the respondents' agents as agreed. The respondents were all
the time under the mistaken impression that the goods had been delivered
to their agent and did not discover the appellant's omission before Sep-
tember 1919; whereupon they instituted proceedings against. him in the
High Court and obtained judgement. The appellant appealed against
this judgement on two grounds:

(a) That he did not have a fair chance to put his-. case before the
court because. of his absence from a number of sittings and because of
the absence of his advocate most of the time. /

(b) That the judgement of the High Court 'is wrong on the facts
before it.

Held: (i) Appellant's case was not put before the court through
his own fault.

( ii) There was no legal authority to support the appellant's con-
tention that a purchaser must' notify his vendor of non-delivery of the
goods within a ,reasonable time, or else lose his remedy.

Appeal

June 6, 1920. < Dun C.J.: This is an appeal from a decree of
the High Court dated March 16, 1920, awarding the plaintiff com-
pany, .the respondent iii the appeal, LE. 264 damages and costs
against the defendant Salvator Hakim, the appellant in the appeal.
The plaintiff's claim against the second defendant in the same action
was dismissed, but was not the subject of an appeal.

·Court: Dun C.J., Williamson and OSborne JJ.

The appellant in this case was dilly summoned and was repre-
sented by an advocate at the settlement of issues: the case was set
down for hearing on January 21, 1919, and the appellant was again
duly summoned; he attended and applied for an adjournment, as
the respondent's witnesses were present, and said that at any rate
these witnesses would be heard. At the rising of the court;' the
evidence of these witnesses had not been finished, and the case was
adjourned to February 23, 1919. On February 23 the appellant
was not present in court; the hearing of witnesses was continued.
On February 25, 1919, on the application of the advocate for the
appellant's co-defendant, the case was adjourned to March 16, 1919.
On February 27, 1919, the appellant's advocate returned to Khar-
toum. On March 16 the hearing was continued, and finished and
judgment given, ordering the appellant to pay LE. 264 and costs
to the respondent, and dismissing the respondent's action against the
appellant's co-defendant. In these circumstances the appellant applied
to the High Court to have the judgment set aside on the ground that
he was prevented by sufficient reason from being present at the
hearing. This application was refused.

The appellant now appeals and asks for a rehearing. The la,
need only to be stated for it to be seen that this application must
be refused. If the appellant has been prejudiced by not having his-
defence placed before the court, it is his own fault.

There is a further ground of appeal, namely that the judgment
of the High Court is wrong on the facts which were before it. On
July 16, 1918, the appellant entered into a verbal agreement with
the respondent that the appellant should sell and the respondent
should buy 8 bales of gunnies. The agreement was made in the
respondent's office, and the appellant then and there telephoned his
co-defendant, in whose possession the bales were, instructions as to
delivery. The goods were paid for, but not in fact received by or
on behalf of the respondent. The respondent thought they had been
delivered to the Anglo-Egyptian Bank, although the Bank continued
to show in the accounts rendered periodically to the respondent that
the bales were not in their stores. In September 1911 the respondent
sold the whole stock of gunnies which it thought the Bank held, and
only then discovered that these bales had not been delivered.

At the settlement of issues the appellant denied liability on the
ground that the goods had been delivered according to the agree-

meat, . and that the co-defendant was the' agent of the respondent to
receive . the goods. There is nothing in the proceedings to suggest
in the slightest degree that the co-defendant ever was the respondent's
agent to receive the goods, or that the goods were in fact ever de-
livered to the respondent or any agent of the respondent. .

It was argued' for the appellant that it was not part of the
agreement that the appellant should deliver the bales' at the premises
of the Anglo-Egyptian Bank, and that, as the goods were ready for
delivery at the co-defendant's store (which was not proved or ad-
mitred); it was the respondent's failures to go and fetch them which
prevented it from receiving the goods. 'The learned judge has taken
the view that the a:ppellant was responsible to make the delivery at
the Bank's premises, and I am not prepared to say that he was wrong.

It was next argued that the respondent had, lost its rights by
reason of this long delay in discovering the non-delivery of the' goods
and notifying the appellant that it had not received them. If the
appellant had been informed within six weeks Of two months that
the goods had not been delivered, it is possible that he might have
been able to secure that ~the goods should be delivered. It is con-
tended that there was a duty on the part of the 'respondent to notify
the appellant within a reasonable time' of the non-delivery of the
goods, or at, any rate that the respondent's omission to do so is so
unbusinesslike as to amount to negligence, and that, just as a pur-
chaser must notify his vendor of the defects in the goods supplied
within a reasonable time or lose his remedy, so he .must notify the
vendor of non-delivery within. a reasonable time or lose 'his remedy.

No legal authority was produced' for or against this contention,
and the court has been unable to find any. In the absence of any
legal, authority in favour ot the contention, and in the absence of
any evidence that, the appellant was in fact prejudiced by the delay •.
and having regard to the fact that" this contentioh was not raised at
the settlement of issues, or at all in the court below, all \1 propose to
say is that I do not think the principle, if it is a good one (as to
which A express. no opinion today), ought to be applied in this case.
I, 8)!'{ of opinion, therefore, that this appeal should be . dismissed ~ costs.                                                       

I am authorised by Osborne J., who is unable to be present

        today, to say that he agrees with this decision.            

Williamson J.: I agree. The only argument on.' behalf of the