(COURT OF APPEAL)

OSMAN IBRAHIM EL ZEIBAG v. PUCA BROTHERS

AC-REV- 148-1960

 Principles

·  Sale of Goods—Unfit goods—Right to reject lost after acceptance and disposal of goods—Buyer’s remedy action or counterclaim for damages

In a contract for the sale of goods, the buyer’s right to reject the goods for breach of a condition is lost after he has accepted and disposed of them, and the buyer is liable on a bill of exchange ‘ he has accepted for the price. The buyer’s remedy in such a case is an action or counterclaim for damages.

Judgment

M. A. Hassib J. May 28, 1960:—Plaintiffs brought an action against defendant for recovery of value of a bill and interest. Defendant though admitting the particulars resisted the claim on the allegation that the greater  part of the goods in respect of which the bill was accepted was unfit for human consumption.

The court below tried the suit on three issues, namely:

(1) Was it agreed that the goods should arrive before the date of maturity?

(2) Was the greater part of the goods when received unfit for human consumption and were the plaintiff’s agents notified accordingly?

(3) Are the defendants entitled to withhold payment?

As for the first question. I do not think it is essential to the determination of the suit. The transaction as far as I see it is as follows: sale of goods was agreed to and ordered from outside The defendant accepted the bank draft as payment of the price. The goods arrived and were delivered, but the defendant did not return them. He receivcd the goods and disposed of them.

If fitness for human consumption is a condition by implication or other wise, the said condition, after acceptance and disposal of the goods, no longer justifies non-payment of the price for which defendant accepted a bill. The appropriate remedy in such a case is by an action or counterclaim for damages. The defendant did not make a counterclaim, and as the draft is admitted, it is a waste of time to reopen the case. Defendant’s remedy is still surviving. He can bring an action for damages.

 Application, therefore, is hopeless not because it would amount to prolonging the litigation, but because defendant’s remedy is by an action for damages or a counterclaim and he did not make one.

Application, therefore, is summarily dismissed under Civil Justice Ordinance, s. 176 )1(