(COURT OF APPEAL)

 PERROTTA & COMPANY LTD. vs. EL SHARIF MOHAMED SALAH

AC-Revision-50-59

Principles

  Contract—Sale of goods by description and by sample—Clause of contract waiving right to damages, effect of  Evidence-                                                                         Failure by buyer to produce sample gives rise to presumption in favour of seller                                                                                                                                           

  Practice and procedure—Damages-—Effect of contract waiving right to claim damages                                                                                                            

     When goods are sold by description as well as by sample, the goods must correspond with the description as well as with the sample.                                                                        
     Where a sample is delivered to the buyer the responsibility is on him to keep it and produce it in Court.                                                                                                         

     Where a contract contains a clause waiving the right to claim damages should the goods delivered turn out not to be in accordance with description and sample, the only course open to the delivered is to return the goods and no question of damages, or their mitigation, can arise.                                                                                       
     Abdel Gader Khalil vs. Perrotta & Co. Ltd. (AC-APP-32-55) followed.
Revision
     The facts and history of the action appear from the judgment of M. A. Abu Rannat C.J.   

Judgment                                                                                                                       

Advocates: Mohamed Ahmed Orabi …………..for applicant

                    Roushdi Boutros ……………………for respondent

     28th July1959 M. A. Abu Rannat C.J. : —This is an application for revision by Messrs. Perrotta & Co. Ltd., the defendants, in Khartoum District Court Civil Suit No. 643/I957 against the decision of the Judge of                                                       

* Court: M. A. Abu Rannat C.J.: Abdel Rahman El Nur J.

the High Court, Khartoum, in HC/REV/229/1958, whereby the learned Judge of the High Court reversed the decree of the District Judge, Khartoum.

   The facts are not seriously disputed, but for the purpose of deciding this application, it is necessary to restate them. On 24thApril1953 the plaintiff Sharif Mohamed Salah signed a written contract which was on a printed form, whereby he agreed to buy 210 dozens of bowls with base and cover, and 260 dozens of bowls without cover. The contract provided that these goods were to be supplied by Messrs. Zamar of Italy through the defendants, Messrs. Perrotta & Co. Ltd., who were admittedly the agents of the suppliers in the Sudan. The contract itself was signed by the plaintiff and defendants.

     Clause 4 of the conditions contained in the contract reads:

     “In case the goods turn out to be not in conformity with what was

    ordered, the buyer is entitled to refuse them, but however, without any

right to claim any damages from suppliers or their agents.”

It was also stipulated in the contract that the goods would be delivered to the buyer on payment of cash against documents through Barclays Bank. On 24th July 1953, Messrs. Perrotta sent a letter to the plaintiff informing him that the goods were shipped byZamar and calling on him to pay the price and other expenses.

     On 19th September 1953, Barclays Bank sent a letter to Messrs. Zamar telling them that plaintiff did not pay for the goods on their arrival in Port Sudan. Then Messrs. Perrotta (defendants) approached the plaintiff with a view to pay the price and take delivery of the goods. The plaintiff refused to take delivery of the goods on the allegation that other goods which were received from Zamar proved to be of inferior quality to those originally offered by the defendants. At this stage, a third person by nameGumuchian intervened and persuaded the plaintiff to take delivery of the goods on the representation that they were cheap. Then the defendants agreed to give the plaintiff £S.200 under the guarantee of Gumuchian for the purpose of payment of part of the price to Barclays Bank. This was arranged on 5th November 1953, and the plaintiff signed two promissory notes, each for £S.100, payable on 5th January 1954 and 5th February 1954.

    On 27th February1954 the plaintiff failed to pay the £S.200 secured by the two promissory notes, and the defendants instituted Civil Suit No. 727/54 in the District Court, claiming the £S.200 and costs. Action was allowed and the plaintiff disputed the claim on the ground that when he received the goods he discovered that they did not correspond with the sample or description. The plaintiff, who was defendant in CS/727/54 stated that he would counterclaim for the recovery of £S.196.675m/ms which he had paid for the goods in addition to the £S.200 which were the subject of CS/727/54.

                                                                     On 25th May 1954 issues were framed, but the issues did not cover the counterclaim. After this date the case dragged on without amendment of the issues or proper hearing. This may be due to the fact that many District Judges dealt with this case and not a single one made a real attempt to determine it. However, on 30th May 1956, one of the District Judges heard the plaintiffs (Perrotta) on oath and issued a decree in the absence of defendant (Sharif Mohamed Salah) to pay £S.200, which was secured by the two promissory notes, and costs amounting to £S.13.030m/ms.

   On 18th November1957 Sharif Mohamed Salah instituted Civil Suit No. 643/57 against Perrotta, which is the subject of this revision. He claimed from defendants the recovery of £S.196.675m/ms and non-payment of the £S.200 and costs, which is the subject of the default decree in CS/727/54.

  On 31St May 1958 the District Judge, Khartoum, determined the case on the merits and dismissed plaintiff’s claim. On application for revision to the Judge of the High Court, the learned Judge set aside the District Judge’s decree and ordered the defendants to pay to the 0plaintiff £S.396.675m/ms and costs. The £S.396.675m/ms is made up of the £S.200 which was the subject of the default decree against plaintiff, and the £S.196.675m/ms the balance of price which was paid by him to the bank. Before the District Judge it was argued by the defendants that they were not liable to the plaintiff as they were mere agents to a disclosed principal, and the District Judge decided this issue against them. Before us this issue was dropped, as I believe the defendants are unable to find legal support for their contention. The question as to whether the defendants were liable or not was fully discussed by the Court of Appeal in AC/Appeal/32/ 1955. In that case the contract between plaintiff Abdel Gader Khalil and the same defendants was identical with the contract in this case, and it was there decided that the defendants were liable.

    For the purpose of this application we are called upon to decide one main issue, viz., whether the goods supplied to the plaintiff correspond with the sample and/or description.

   The plaintiff contends that the goods supplied did not correspond with the sample shown to him by the defendants’ agent, and he further states, and the defendants admit, that the sample was taken by them after the agreement was concluded. The plaintiff then produced a sample and alleged that it was similar to the one which was shown to him by defendants’ agent. In giving his evidence, the defendants’ agent stated that the sample produced in Court was not the sample shown by him to the plaintiff. This fact is never denied by the plaintiff and the evidence of the defendants’ agent is off the point.

   In my view, either the defendants produce the sample which, they admit, they were keeping, or fail. It is physically impossible for the plaintiff to produce a sample which was taken from him by the defendants,                                  

who took upon themselves the responsibility of keeping and preserving it. This disposes of the application and I need not go into the argument as to whether the goods correspond with the description given in the Order of Sale. However, when goods are sold by description as well as by sample, the goods must correspond with the description as well as with the sample.

   The applicants raised the point that even if they were liable, the respondent should have mitigated the damages. The answer to this point is simple. Both clauses 3 and 4 of the contract provide that the respondent cannot claim damages, and that the only course open to him is to return the goods to the applicants.

  The application is dismissed with costs, which are taxed at £S.8.000 m/ms. and it is further directed that on settlement of the amount decreed, the respondent must deliver all the goods to the applicants.

Abdel Rahman El Nur J.: —I concur.

                                                                            (Application dismissed)