Case No.:

-(ACAppeal-4- 1960)

Court:

Court of Appeal

Issue No.:

1960

Principles

·  Sale of Goods-Caveat emptor

In an action for recovery of a sum of £S.8oo oil protiiissor Ootes being balance price of a diesel lorry sold by plaintiff (respondent) to defendants (appellants) the defendants counterclalmed for res ision of the ontract on the grounds (a) that the diesel engine s as of a peculiar type unknoss n in the Sudan for which no spare parts were available and s hich they were only induced to buy by reason of the fraudulent misrepresentation of the plaintiff that he had a permit to import spare parts, 30(1 (h) that there v crc certain defects in the lorry which rendered it useless for the purposes for which it was bought No fraud was proved.
Held: That in a sale of a specific article between dealers in the type of that article the rule is caveat emptor.

Judgment

(COURT OF APEAL)

SAYED HASSAN BESHIR AND ANOTHER V. BASIL.S.SAAI.

1. -(ACAppeal-4- 1960)

Summary appeal

Advocate: El Rasheed Nayel… for appellant

May 11, 1960. B. Awadalla I. ---I recommend summary dismissal of this appeal under rule 13A of Order Xl. I think that the case was admirably tried by His Honour the Province Judge and in my view the application is hopeless.

The case is one of those now very common instances where a person buys a second-hand car and gives out negotiable instruments which he fails to pay at maturity and when sued set up a defence of fraud or unmerchantability of the vehicle.

In this case a diesel lorry was sold by the respondent in January 1955 for a sum of £S.I, 4oo—fS.3oo of the purchase price was paid in cash and the whole balance by ten promissory notes payable over a period extend ing from March to December I955. Two of those bills totalling, LS.300.

 Were duly paid. The balance due was £S.8oo. It was agreed at the time of sale that all promissory notes carry in’terest at 8 per cent. P.a. These proceedings were instituted to recover the said sum of £S.8oo plus interest.

The defendants (appellants) counterclaimed for rescission of the con tract on the ground of fraud; alleging that the diesel engine was of a peculiar type unknown in the Sudan for which no spare parts were avail able and it was only by reason of the fraudulent misrepresentation of the respondent that he had a permit to import spare parts that they were induced to buy the lorry.

The defendants also contended that there were certain defects in the lorry, which rendered it useless for the purposes for which it was bought (ci. page ii of the record); and that some spare parts, which formed part of the transaction, were not delivered.

His Honour - the Province Judge correctly framed the issues as follows:

(a)   Was the lorry of unmerchantable quality?

(b) Were the spare parts shown in paragraph t of the plaint delivered to defendants?

(c) Was the sale iniuced by fraud?

(d) Is defendant entitled to rescind the contract? (Law)

(e) Is defendant entitled to damages?

(f) If the answer to (d) and (e) is No,” to what relief is plaintifi entitled.

As to issue (a): There is no doubt that this is not one of the cases in which an implied condition of merchantability is annexed by law. It was a sale of a specific article between persons who are both dealers in that type of article and the rule is caveat emptor. The court’s conclusion is therefore correct.

As to issue (b): Paragraph 13 of the record contains an admission by first defendant receiving all the spare parts save for some three battery cells not alleged by plaintiff (respondent) to have formed part of the sale and not specifically claimed by appellants (defendants) in the counterclaim.

.As to issue (c): No representation whatsoever was proved to the satisfaction of the court. The court had before it only the statement of the parties (plaintiff denying and one of defendants asserting a mis representation). The court was impressed by the story of plaintiff (respon dent) who is described by the court as “honest and fair-minded.” The Appeal Court therefore cannot substitute its own standards for that of His Honour the Province Judge.

 The remaining issues are based on the above three issues and fall with them.

M. A. Abu Rannat C.J.: —Appeal is dismissed summarily as hopeless ‘inder rule 13A of Order XI of the Civil Justice Ordinance.

                                                                                (Application dismissed)

 Court Abu Rannat C.J. and B. Awadalla J.