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Present : De Sampayo J.
WALAKDAS et al v. SUPPBAMANIAM dHETTY.
92—0. B. Colombo, 64,825.
Sale .of goods—Acceptance of- part of the goods—No writing—Action bybuyer for damages against seller for non-delivery of the balance.
The contract of sale which is rendered binding by the acceptanceof part of the goods by the buyer is the whole contract, and not thecontract as against the buyer – only ; and, therefore, even in theabsence of a writing embodying the terms of the contract, a buyerwho has accepted part of the' goods may maintain an action fordamages against the seller for non-delivery of the balance.
facts are set out in the judgment.
Balasingham, for defendant, appellant.—The acceptance of aportion of the goods constitutes an enforceable contract of sale.It has the same force as payment of the price or a memorandum.It binds both parties to the contract. The defendant, therefore, isentitled to enforce the contract of sale' as against the plaintiff fornot having delivered 80 bags according to the contract. Counselcited Halsbury, vol. 25, p. 129 et seq. ; Benjamin on Sales 151.
Arulanandan, for plaintiffs, respondents.—The acceptance of thegoods cannot bind the seller. Even in the case of a memorandum,it should be signed by the party to be charged.
Gut: adv. vult.
April 20, 1917. De Sampayo J.—
The plaintiffs sued the defendant for the value ^f. 20 bags ofpoonac sold and delivered by them to the defendant. The defend-ant admitted that the amount claimed was due to the plaintiffs, butpleaded that the plaintiffs had contracted to sell 100 bags of poonac,of which the plaintiffs delivered to him only the said 20 bags, and hemade a claim in reconvention for damages for breach of contract inrespect of the remaining 80 bags. The Commissioner disallowedthe defendant’s claim in reconvention, on the ground that asadmittedly the contract was not in writing the defendant couldnot in law seek to enforce it. I think this view of the law iserroneous.
Section 4 (1) of the Ordinance No. 11 of 1896, which governs thismatter, is as follows: “ A contract for the sale of any goods shallnot be enforceable by action unless the buyer shall accept part of
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the goods so sold and actually receive the same, or pay the price ora part thereof, or unless some note or memorandum of the contractbe made and signed by the party to be charged or his agent in thatbehalf. ”
At first sight there is something in the suggestion on behalf ofthe plaintiffs that the contract formed by means of acceptanceof part of the goods has regard only to . a case where thebuyer is sued, and not where the buyer sues on the contract. ButI think that the section intends that such acceptance shall bindboth the parties with regard to the whole contract. Delivery andacceptance are- reciprocal acts, and there is no reason why thecontract thereby induced should not bind both parties. Acceptanceof part of the goods is put on the same effective footing as paymentof part of the price, and in the latter case there will be no questionthat the buyer can enforce the contract by action. Section 4 (1)of the Ordinance is taken from section 4 (1) of the English Sale ofGoods Act, which itself is based on section 17 of the Statute ofFrauds. The. English section, however, contains words which appearto me to throw additional light on the meaning of the provision.For under it the contract is enforceable, if the buyer “ give some-thing in earnest to bind the contract, *' or, as the Statute of Fraudshas.it, “ to bind the bargain. ” Similarly, the performance of anyof the other acts mentioned in the first part of the section binds thecontract in the same way. The effect of acceptance of part of thegoods, as also of payment of the price or part thereof, is to establishthe existence of an enforceable contract of sale between the parties(Tomkinson v. Staiglit1), and, as was said by Cotton L.J. in Kibble v.Gough, 2 “ the object of the statute is that, where there was nocontract in writing, there must be some overt act to render the.bargain binding. ” The bargain or contract which is thus renderedbinding is the whole contract, and not the buyer's part only.
The judgment is set aside, and the case remitted to the Court ofBequests for further proceedings. The defendant will have thecosts of appeal.
* (1878) 88 L. J.t at page 20$.
WALAKDAS et al. v. SUPPRAMANIAM CHETTY