(HIGH COURT OF JUSTICE)

MITCHELL COTTS & CO.  (M.E.) LTD . vs.

HAMID MOHD. AHMED HAMID & ANOTHER

(HC/CS/464/1956)

Principles

·  Contract — hire-purchase of diesel engine and accessories — buyers’ right of rejection where contract not severable.

Where a contract for the sale of goods is not severable the buyer cannot accept part of the goods and reject the rest. He must either reject the whole or accept the whole.

Action

The facts are fully set out in the judgment.

Advocates E.M. Kronfli………… for the p1aintiffe

The defendants in person.

M. r. Hashim, D.J. By a written contract of hire-purchase dated the 2 September 1954, the plaintiffs agreed to let, and the first defendant agreed to hire, one Tangye Diesel Engine of 50 horse power, with its accessories as supplied by the manufacturers, including one 4 by 4 inch pump, and a set of piping, for a total price of L.E.517.575 m/ms. of which the defendant paid in advance a sum of L.S.249.735 m/ms.. leaving a balance of L.S.26.840 m/ms. to be paid quarterly by instalments of L.S.89.280 m/ms. each as from the 3ist January 1955. The second defendant is a guarantor.

The first defendant took delivery of the goods on the 2 September ‘p54 and the 7th. October 1954, and conveyed them to Shendiwhere they were erected by his own engineer. After a month or so, the first defendant reported to the plaintiffs that the pump was not capable of drawing water properly, whether from a defect in the erection, as the plaintiffs allege, or a defect in the pump itself because it was an old one, as the first defendant alleges. The plaintiffs’ engineer went to the locality and effected repairs at a cost of L.S.11.500 m/ms.

Now the plaintiffs are claiming the balance of the price due plus this sum of L.S.11.500. m/ms. plus interest. On 19 th. October the case was dismissed for non-attendance of the parties. On 13th. October the case was re-opened and a default decree in favourof the plaintiffs

was issued on i April 5957. An. application to set aside the default decree was dismissed, but the dismissal was reversed on revision, and the trial resumed.

The defendant is disputing the sum of L.S.7 m/ms. being the price of the pump delivered to him, and the sum of L.S.11.500 m/ms. being the cost of the repairs. He also alleges that as a result of breach of contract he suffered damage in his cultivation, amounting to L.S.450 but he has not counter-claimed in this action for such damages.

Besides the documents produced and the statements of the parties there is no evidence to rebut the claim. It is obvious that the goods in this case were sold as one lot, engine, pump and accessories. The right of the buyer after inspection is to accept or to reject. If the goods or part of them do not correspond with the terms of the contract the buyer may accept them all or reject themall ; he cannot accept part and reject part in so far as the contract is not severable. There was, in any case, no rejection by the first defendant even of the pump alone, because he had it repaired, and he accepted it, and has been working it from the end of 1954 up to the present day. In these circumstances it is clearly far too late for the defendant to claim a right of rejection. I therefore enter judgment in favour of the plaintiffs against both defendants for the sum claimed.

                                                                                    Judgment for plaintiffs.