MAURICE BENIN, Appellant-Defendant v. GABRIAL MICHAELIDES, Respondent-Plaintiff AC-REV-18-1929
Damages-Sale of Goods-Measure of damages when identical goods not avail-
able
The defendant agreed to sell to the respondent a quantity of Benin
cement. He failed to deliver at the stipulated time. The plaintiff did not
find Benin cement in the market and' bought Portland cement, a cement
more expensive in cost. The Court of Appeal held that because no goods
like those contracted for .were available at the time of the breach, the plain-
tiff was entitled to buy goods of a slightly better quality and higher price
. and to recover the difference between the price he actually paid for them
and that which he would have paid if the contract was performed.
Revision
The facts as they appear from the record of the. case are as
follows:
On May 22, 1928 the defendant agreed to sell to the plaintiff
a hundred tons of cement, Benin brand. Delivery was to be made
. at the rate of fifteen tons per month. The price agreed upon was
£E.4.514 m/ms per ton.
Up to August 4, 1928, the defendant delivered 55 tons but
after that failed to deliver the instalments due in September, October
and November.. Because of the defendant's failure the plaintiff had
to buy the remaining 45 tons of cement on the market. He could
not find Benin cement in Khartoum and in the end bought Portland
cement at £E.5.500 m/ms per ton. The plaintiff then brought an
action to recover,' by way of damage for breach of contract, the
difference between the price he paid for the Portland cement and the
contract price of the Benin cement. Judge Halford gave judgement
. * Court: Bell C.J., Owen J.
for the plaintiff. The defendant is now asking for revision of that'
decree.
Advocates: Labib Sorial '. for appellant; Tryfor Francoudi
. for respondent
October 24, 1929. B. H. Bell" C.J.:, In most cases the proper
measure of damages is the difference between the contract price and
that which goods of a similar quality bore at the .time when they
ought to have been delivered. But the plaintiff says that Benin cement
was not available in 'Khartoum. He goes on to say that he bought
Portland cement instead and the learned judge believed him. The
defendant produced one witness who said that there was in Khartoum
in October, 15 to 20 tons of Benin cement. The learned judge was
not, however, impressed by this evidence.
The position is therefore as follows; if Benin cement was available
in Khartoum its value ought to have been taken for the purpose of
assessing damages; if it was not available the plaintiff was entitled
'to buy the more expensive Portland cement instead in. order to fulfil
his contracts and the court found that he did buy Portland cement;
whether Benin cement was available or not is purely a question of
fact. The learned judge found as a fact that Benin cement was not
available and it is not possible to say that there was no evidence on
which he could come to this finding.
For these reasons I am of opinion that the appeal must be
dismissed with costs.
Owen J. I concur.
Application dismissed