COURT OF APPEAL
DATE: 25TH JUNE, 1959.
BEFORE: VAN LARE J.A. AS C.J., GRANVILLE SHARP J.A. AND ACOLATSE J.
CASES REFERRED TO
(1) Campbell & Co. Ltd. v. Boullen & Gatenby ((1908) (S.C.) 490)
(2) Grimoldby v. Wells (32 L.T. 490);
(3) Taylor v. Great Eastern Railway Co. ([1901] 1 K.B. 774).
(4) Hartley v. Hymans ([1920] 3 K.B. 475);
(5) T. & J. Harrison & ors. v. Knowles & Foster ([1918] 1 K.B. 608).
COUNSEL
A. Asafu-Adjaye for defendant-appellant. (That part only of Counsel’s argument which deals with the point of law before the Court is here reported.) Plaintiff could have refused to take delivery altogether, and have claimed damages in contract. She was wrong to elect to accept the goods and to sell them, in order (as she said) to minimise damages. If she found on examination that the goods were not those she had ordered, she should have rejected them and have claimed damages immediately. If she elects to accept goods which she found not to be according to her sample, then she loses her right of action for breach of contract. It is the act of re-sale by the plaintiff which nullifies her right of action to sue for damages. See Halsbury (1st Edition), Vol. 25, article 396/404, on acceptance of goods. And see Chitty on Contract (20th Edition), p. 774, under the heading “Bulk shall correspond with sample.”
Akufo-Addo for plaintiff-respondent. Since no authority has been cited for the proposition that the purchaser must reject if the goods are not according to sample, it is submitted that the true proposition of law is that the buyer may reject, not that he must reject.
JUDGMENT OF GRANVILLE SHARPE J.A.
(His lordship stated the facts, and proceeded:—)
In the case of each delivery it could hardly be questioned on the evidence that certain bales contained goods which were much inferior to sample, and this state of affairs seems to have been
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accepted by the defendant. An attempt was, however, made by him, and by Counsel on his behalf at the trial, to deny that the order for 40 bales was placed with him by the plaintiff. This suggestion was repeated by learned Counsel before this Court. It cannot on the evidence be accepted.
The defendant was, when his evidence is examined, of defective memory, and the evidence of the witness Brown, who at the material times worked for the defendant as Promotion Sales Manager was clear and emphatic, and upon it, and the evidence of the documents, the learned Judge was fully entitled to find that each of the contracts, for breach of which the plaintiff claimed damages, was a contract entered into with the defendant.
Learned Counsel before the trial-Judge, and indeed the defendant himself, had each pinned his faith for the purposes of the defence on a contention that the defendant had contracted only as an agent, and not in such circumstances as to render himself personally liable to the plaintiff. The question whether an agent, even if his agency and his principals are disclosed, is in the circumstances of the transaction personally liable is a question of fact to be decided upon the evidence in any particular case.
In the instant case, the learned Judge resolved this question in favour of the plaintiff, on the grounds that the plaintiff, an illiterate, gave orders to the defendant and not to the foreign principals for goods, for which she paid the defendant in this country; that it would be absurd to suppose that the parties to the contracts intended that the plaintiff should look to persons in Japan to accept liability on the contracts to the exclusion of the defendant, and that the circumstances were such as to indicate clearly that it was intended that the defendant should and did contract personally. I cannot say that the learned Judge was not justified on the evidence in reaching such a conclusion. I respectfully agree with him.
A further point was argued by learned Counsel for the appellant, though it was not at any time raised in the Court below. Shortly put, the contention of Mr. Asafu-Adjaye was that a buyer of goods who has accepted the goods in the sense of taking them into physical possession cannot thereafter complain as to defects in the goods, or claim damages for failure on the part of the seller to deliver goods of contract quality. In other words, the buyer has no alternative between rejection of the goods and payment of the full price upon accepting the goods.
In the present case the plaintiff, buyer, had no opportunity of inspecting the goods before paying the full price for them and taking them into possession. When she saw the goods for the first time she
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noticed that they were in very large part inferior in quality to the goods contracted for. She at once complained, and the defendant could not gainsay, and did not seek to gainsay, the plaintiff’s complaint. It may be said that the plaintiff at this time could successfully have asserted a right to reject the whole of the deliveries, and demand the return of the price she had paid, and it is argued that in failing to do this she took the goods as they were and had no right whatever to claim damages in respect of their acknowledged imperfections.
We asked learned Counsel for authority in support of this proposition, and as he had not at the time any such authority available he undertook to furnish it in chambers. This in due course he did, and I have carefully perused these authorities. They seem to me, with due respect to counsel, to be for the most part irrelevant, and to have little or no connection with the point, but it is perhaps due to Counsel that they should be referred to.
Grimoldby v. Wells (32 L.T. 490) was a case which turned solely on the assertion by the buyer of a right to reject. No other point came under consideration. Taylor v. Great Eastern Railway Co. ([1901] 1 K.B. 774) decided that the fact that section 4 of the Sale of Goods Act, 1893 had not been complied with did not necessarily prevent the property in the goods from passing to the insolvent buyer so as to give his Trustee a better right than the unpaid seller. Bigham J. in the course of his judgment observed in passing, “of course receipt does not necessarily involve acceptance.”
Hartley v. Hymans ([1920] 3 K.B. 475) decided that where, time being of the essence of the contract, the buyer accepts late deliveries and so conducts himself as to lead the seller to believe that the time is extended, the buyer cannot afterwards refuse to accept late delivery without giving notice to the seller that he requires delivery within a reasonable time. T. and J. Harrison & ors. v. Knowles and Foster ([1918] 1 K.B. 608) was a case on its own facts involving no point of principle. The decision was that a description of ships as being “of deadweight 460 tons” was not in the circumstances of the case a part of the contract so as to entitle the buyer to repudiate the contract, when it transpired that some of the ships were of deadweight under 460 tons.
The case cited by learned Counsel which comes nearest to the present case is Campbell & Co. Ltd. v. Boullen & Gatenby ((1908) (S.C.) 490). There the seller had contracted to deliver maroon twill according to sample. Part of the bulk was inferior to sample, and it was held that the buyer might reject the
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whole, or he might retain the whole and claim damages in respect of the inferior twill, but it was not open to him to retain the part equal to sample and reject the other part. In my view this present case is illustrative of the principle in the case just cited. The plaintiff took delivery of goods, accepted the whole, and claimed damages in respect of that part of the whole which was inferior to sample. I think that she was well within her rights in so doing.
The only further point which remains for consideration is the argument of Counsel as to the learned Judge’s assessment of damages. This, it was said, was not supported by the evidence, and was erroneous in two respects. Firstly, a sub-buyer of the plaintiff had given evidence that she bought, for 30/- a piece, 300 pieces of sample B. The plaintiff and her supporting witnesses had said that there were in the bales in question only 200 pieces of sample B which were not inferior, and were saleable at 65/- per piece.
Counsel therefore contended that the plaintiff had recklessly sold at least 100 pieces at a price much below the market value, and should bear such loss herself. I think that reading the evidence as a whole, the witness made a genuine mistake as to the goods she in fact bought, and in fact did not buy goods equal to sample B, but bought 300 pieces which were in accordance with sample D, the inferior goods.
Next it was said that the learned Judge, in assessing damages in respect of the inferiority of the larger delivery of 40 bales, wrongly accepted as the basis of his calculation a prevailing market price for goods of the contract description of £5 per piece. I am of the opinion that there was evidence which the learned Judge was entitled to accept that £5 was in fact the market price at the material time of goods of the contract description. Indeed, this was the only evidence before him.
Learned Counsel for the respondent told us that at the conclusion of the case in the trial Court, he and his opponent had calculated the damages as a matter of arithmetic on the basis of the learned Judge’s findings, and had passed the total figure to the Judge, who accepted it. The final figure and its basis were fully explained to us and no exception can be taken to it, assuming that the learned Judge proceeded from sound premises. In my view he did so proceed, and I would not disturb his conclusion. I would therefore dismiss this appeal.
JUDGMENT OF VAN LARE J.A. AS C.J.
I agree.
JUDGMENT OF ACOLATSE
I also agree.
