(Court OF APPEAL)*

SIDDIK DIAB v. ALI EL SHEIKH EL  HAG

AC-RV-4-1-1965

 Principles

·  Contract-frustration-IIIness cannot be a cause to frustrate a contract of sale of goods-It may frustrate a personal contract

·  Sale of goods-Measure of damages-Purchase for re-sale-Buyer is entitled to difference between contract price and re-sale price

Defendant made and agreement with plaintiff for sale of 200Sacks of bags for specified price and to delivered in specified time. Plaintiff paid defendant Łs,200in advance. Defendant failed to deliver the beans in the time fixed and plaintiff sued him for recovery of damages for breach of the contract. Defendant contended that the agreement was frustrated by his illness so that he could not deliver the beans District Judge ruled that illness could not excuse defendant from performing the contract and awarded damages to plaintiff. Province Judge confirmed the Court’s decision.
Held: (i) As there is no personal skill which goes to the root of the contact of sale of goods, illness will to frustrate the contract so as to excuse the seller

From delivering the beans to the buyer fin the specified time. But in contract to do an Act which requires personal sill e.g. pianist, illness may frustrate the  contract.

(i)                  As the buyer is probably purchasing for resale at a profit , he is entitled as damages to the difference between the contract price and re-sale price.
 

Judgment

Advocates: Moutasim El Tagalawi………………..for applicant

                 Badr El Din Suleiman………………….for respondent.

Hassan Abdel Rahim P.J. May 23.1965:-By virtue of a written agreement applicant contracted to sell 200 in advance. Applicant failed to deliver the beans in the fixed time and so he was sued fro recovery of respondent and an application for revision against his judgment was summarily dismissed by His Honuor the Province Judge.

This application is lodged against that order of dismissal. The grounds are:

1-     that the contract was frustrated through illness of applicant.

2-     That the finding of the Court as t o quantum of damages was against weight of evidence.

As to (1) the contract was for sale of beans and as such the obligation on applicant is not in the ordinary way one which requires personal performance and so the plea of frustration was rightly refused by the Court below. Robinson v.  Davison (18710l.r.6 Ex.269.

As to (2) I do not think that applicant can challenge the decree in a point of fact before this Court. In the meantime it is clear from the evidence adduced that the Court of first instance rightly ruled that applicant having failed to deliver the goods on the fixed date respondent is entitled in the usual course of things to the value of the goods at the time and place of delivery, less the price payable by him under the contract. The damages awarded by the Court were such as ay reasonably be supposed to have been in the contemplation of both parties at he time they made the contract as the probable result of the breach.

For the above reasons I am of opinion that this application is dismissed.

Osman El Tayeb J. May 23.1965:- In this case plaintiff (respondent in this revision ) is a merchant of port Sudan, and defendant 9applicant in this revision ) is a merchant of Gulid of Dongola District. In port Sudan on March 30.1963 they made the agreement of sale of 200 sacks of Egyptian beans for specified prices, to be delivered in Port Sudan as from May 10.1963 .The defendant received from plaintiff Łs.200 as part of the price and left for Khartoum, in order to go to El Gulid to obtain the beans from there and consign it in installments. it was known that Gulid was the place of production of the beans. Defendant remained in Khartoum after the date of delivery, and thereafter some telegrams were exchanged between him and plaintiff, the latter was pressing for delivery and defendant was promising to go to El Guild, to see that the goods be consigned and was trying to explain that the cause of his delay was his sickness and that he was there in Khartoum for treatment.

No delivery of any  amount was effected , and when it was no longer expected plaintiff, in July 1963 raised  his case claiming  the Łs.200 for total failure of consideration and damages in the from of loss of profit, Defendant opposed the claim as to the question of damages, contending that the agreement of sale was frustrated by  his sickness, and his incapacity to go to El Golid to obtain the beans. The learned District Judge was according to extent of being incapacitated from movement and from carrying out his business. Beside that he  ruled that sickness could not be an excuse from performance in such a case. The learned  Province Judge, excuse from performance in such a case. The learned Province Judge, Kassala Circuit, agreed with  him in that and we so do agree.

It is sufficient to say here that illness cannot generally be a cause for dissolving a contract of sale of goods, so as to excuse the seller from delivery of the goods. Illness was held to be an excuse in personal contracts, where the personal skill  or other personal elements of the party  go to the root of the contract, e.g., the pianist who through illness was rendered unable to appear at the concert on the date fixed by the contract , the  contract was dissolved.

The second important question is that of damages . here it is to be observed that counsel for applicant has not made any effort of value and was generally unimpressive.

The learned District Judge found from the evidence that plaintiff required the beans for resale to retail traders and others for local consumption. So he heard evidence as to the prices of beans at the time of delivery. Plaintiff himself,  sold some quantities of beans, from his price. The difference was, he decided, the loss of profit to which plaintiff is entitled by way of damages, that in all reached Łs.375 in 200 sacks.

The general rule for damages for non-delivery of goods sold is the estimated loss directly and naturally  resulting  in the ordinary course of events, from the seller’s breach of contract.” With the understanding of this general rule Abu Rannat, Chief Justice , in pitsiladis Brother v. Sudan Trading Co. (1961) S.L.J.R. 214 and 215 said : “it is well established that when the seller fails to deliver goods , what the buyer is deprived of 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.
 

This was a case where the buyers bought the goods for resale under a contract, and as the sellers failed to deliver in time they were obliged  to buy the same goods at market price at the material time which was higher that that of the contract price.

The buyers were awarded the difference between the two prices for the quantity of the goods that the sellers failed to deliver, by way of damages.

The present case is a little different because the plaintiff was not obliged to buy the same goods from the market for a higher price, he was not bound by contract of resale. It appears in the evidence that plaintiff once wrote to defendant telling him that he resold all the lot to a plaintiff once wrote to defendant telling him that he resold all the lot to a certain person named, but this point was not pressed ad not strictly relied o . there was knowledge or rather contemplation that plaintiff was buying for resale generally, being a trader dealing in that commodity in the market of Port Sudan, by selling it to  retail traders or to consumers, it is certain that he was buying and reselling at a profit, especially that he as wholesaler, was buying from the place of production and selling in a far away town. In which case the contract price would normally be lower that the price at which he would be reselling in the town.

In the English case of Patrick v. Russo British Grain Export Co. Ltd. (1927) 2K.B. 535,540 Salter J. said : “………it is not necessary, in order to entitle the buyer to recover loss of profit on resale, that the seller should  have known, when he sold, that the buyer was buying to implement a contract already made, or that the buyer would certainly resell; it is enough if both parties contemplate that the buyer will probably resell and the seller is content to take the risk” . this rule is applicable to this case in which it was in the contemplation of the parties that plaintiff had lost that profit, which he would have earned had defendant fulfilled his obligation under the contract.

I agree that this application be dismissed with costs.

* Court: Osman El Tayeb .J.  and Hassan Abdel Rahim P.J