ANTON ORTOLANI, Appellant-Defendant v. L. B. HARRIS, Respondent-Plaintiff
Contract-Parol evidence rule-Oral agreement regarding quality of goods
Sale of Goo_ds-Delivery-Place of-Recognition of local trade custom
1. The parol evidence rule prevents proof of an oral agreement that
goods supplied should be of the same quality as a given sample where
the contract has subsequently been reduced to writing and makes no men-
tion of such agreement.
2. In a contract for the sale of goods, where there is no express
agreement about the place of delivery, it must be assumed that the place
of delivery is the place where the goods are known to be or are going
to be manufactured.
Appeal
The facts of this case as they appear from the case record are
shortly the following:
On November 30, 1906, a written contract was concluded be-
tween the appellant, a Khartoum building contractor, arid the re-
spondent, a brickmaker, whereby the respondent agreed to supply
the appellant with 5,000,000 bricks. The conclusion of the written
contract was preceded by a Iengthly oral discussion in the course
of which, the appellant alleges, he produced some sample bricks
and requested the respondent to supply him with bricks of no lesser
quality than the sample. The appellant further alleges that the re-
spondent promised to supply bricks of even better quality than the
sample. In the written contract, however, nothing was said about
the bricks being equal to any sample. The contract only stated that
the respondent should, during the first month, supply the appellant
with 10,000 bricks per day, and with 15,000 bricks or more per
day thereafter. It further stated that the bricks were to be supplied
at a price to be arranged. It did not say anything about the place
of delivery of the bricks.
·Court: Bonham Carter, Acting J.C.
During the first month the average number of bricks delivered
by the respondent was slightly more than 1000 per day and just over
10,000 per day for the two months that followed. These quantities
were partly delivered by the respondent in boats hired by him and
partly collected by the appellant in his owri boats.
The appellant wrote several letters to' the respondent complain\
ing of irregular deliveries and of the poor quality of the bricks 'which
he said were much inferior to the sample agreed upon. Finally,
after the end of the third month the appellant told the respondent
that he would take no more bricks from him and actually started
to - buy bricks elsewhere. The respondent then approached the ap-
pellant in an attempt to reach an agreement as to the price of the
bricks already supplied. No agreement was reached.
The respondent thereupon brought an action before David son,
J., the Khartoum Civil Judge, asking for LE.800 as damages for
breach of contract and also for the ascertainment of the price of
the bricks already' supplied. The court with the consent of both
parties appointed one Mr. Seabright to determine the price. Mr.
Seabright decided that the price should be PT. 120 per 1000 bricks.
The court also came to the conclusion that the appellant was guilty
of a breach of his contract with the respondent and that the LE.800
claim as damages was not excessive.
August 5, 1907. Bonham Carter, Acting J.C.: The first, ground
on which Mr. Ortolani has appealed against the judgement of Mr.
Davidson is that he wishes to bring verbal evidence that, at the time
of making the contract of November 30, 1906, certain sample bricks
were agreed upon by Mr. Harris as the standard for the bricks to be
made by, him. As, however; the contract was reduced to writing it
is not admissible for Mr. Ortolani to call oral evidence in order to
vary or add to the terms of the written contract. I may add that
Mr. Harris has denied on oath that any sample was agreed upon,
thus making it even more 'necessary for us to stick to this rule.
Mr. Ortolani secondly puts forward as a ground" of appeal that
the bricks supplied bv Mr. Harris were so bad that the court ought
not to enforce the contract against Mr. Ortolani. As regards this
I concur with the observations in the judgement of Mr. Davidson.'
The text of the judgement of Davidson J. could not be traced.
I may further point out the fact that Mr. Ortolani never refused to
accept any of the bricks supplied by Mr. Harris and that he never
repudiated the contract. The evidence produced by Mr. Ortolani
does not prove any intention to repudiate the contract, In these
circumstances we can only draw one of two inferences, (i) -that
either the bricks were of a quality acceptable to Mr. Ortolani, or
(ii) they were not of a quality acceptable to him but he nevertheless
decided to keep them, thereby accepting the" breach and 'waiving his
right to any remedy it might have given rise to.
Mr. Ortolani also objects that Mr. Harris has failed to deliver
the quantity of bricks agreed' upon . and has sold bricks to other
persons although he had no right to sell bricks to any other person
until his contract with Ortolani was satisfied. As to delivery, I
think that since there was no agreement as to who should make the
delivery it must be assumed that the bricks were sold on the siteand
that it was Mr. Ortolani's duty to collect them. This I am told is
the custom prevailing in the brick ·trade.
As regards the sale to other persons, the question would never
have arisen if Mr. Ortolani had taken delivery in accordance with
the contract, but as Mr. Ortolani failed to take over the bricks Mr.
Harris was' justified in selling them elsewhere. As Mr. Harris never
failed in his deliveries to Mr. 'Ortolani as regards quantity, the sale
of these -bricks to other persons caused no damage to Mr. Ortolani.
On the last day of appeal Mr. Ortolani raised the issue that the
profit claimed by Mr. Harris of PT. 25 per 1000 bricks was excessive.
But before the judge Mr. Ortolani admitted this profit, "if bricks
were good," and no question as to the amount of this profit was
raised either in Mr. Ortolani's statement of the case submitted/ -te
the judge or in his case for appeal. According to the particulars
given by Mr. Harris, the cost of producing 1000 bricks averaged
PT. 92.5, leaving a profit of PT. 27.5. Mr. Ortolani states that the
profit could not exceed 6 to 10 per cent. Having regard to Mr.
Ortolani's admission {ind the absence of any reference to the case in .
his statement of appeal I accept Mr. Harris's statement.
I therefore come to the conclusion that Mr. Ortolani's appeal'
must fail a.nd he must pay Mr. Harris the costs of this appeal in
addition 1;6 the costs in first instance.
Appeal dismissed