011-NLR-NLR-V-07-CROOS-v.-DE-SOYSA.pdf
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1903.
May 12
CROOS v. DB SOYSA,
C., Colombo, 15,873.
Sale of arrack farm—Agreement to sell—Ordinance No. 11 of 1896, s. 11—•Movables—Tangible or corporeal things—Goods—Interpretation.
An agreement between A and B for the sale of the right to sell arrackwithin a defined district and for a given period, which A had obtainedfrom the Government as its “ renter, ” is good and valid although not inwriting.
It is not a contract for the sale of " goods ” within the meaning ofsection 4 of " The Sale of Goods Ordinance, 1896. ”
The word " movables " as used in the definition for “ goods ” doesnot include anything more than corporeal movables, and the term" goods ” in section 59 of that Ordinance means all tangible movableproperty, except money and in certain cases crops and things attached tothe soil.
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HE defendant, who had bought from the Government the rentof the arrack farm of the town and district of Negombo for
1902 and 1903, agreed verbally to sell to the plaintiff the saidrent. The plaintiff complained of a breach of this agreement bythe defendant and claimed damages.
The defendant took the objection that the agreement was notenforceable by action, inasmuch as it was a contract for the saleof “ goods,” and there was no note of- memorandum of it in writingas required by sub-section 1 of section 4 of Ordinance No. 11of 1896.
The 'District^ Judge over-ruled this objection.
; The defendant appealed.
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Domhorst, K.C., for defendant, appellant.—The subject-matter ofthe agreement not being immovable properly must necessarily fallinto the class “ movable property, ” arid the agreement there-fore required to be ih writing uqder the Sale of Goods Ordinance.
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A chose in action was expressly excluded from what was compre-hended in the term “ goods ” used in the English Sale of GoodsAct, and the District Judge was therefore wrong in applying to thepresent case the law as to choses in action under the EnglishAct. The present case was governed by Ordinance No. 11 of1896, and in it “ goods ” were said to include all “ movables.Sub-section 3 of'section 21 of Ordinance No. 7 of 1840 was repealedby Ordinance No. 11 of 1896, and the Legislature intended tomake provision by the new Ordinance in respect of what wasincluded in the term ‘‘movable property” used in the oldOrdinance.
Walter Pereira (with him Schneider), for plaintiff, respondent.—The English Law does not govern the case. Only certain rules ofthat law were, by section 58 of the Ordinance, made to apply tocontracts for the sale of goods, but the- present question had to belooked at in the light of the Common Law of the land. Things,under the Roman-Dutch Law, were' corporeal or incorporeal (Gro-tius’ Introduction, 2, 1, 10), and only corporeal things were eithermovable or immovable. Rights of action were incorporeal thingswhich did not admit of division into the movable and immovable.Voet also divides things into corporeal and incorporeal (Com. adPand. 1, 8, 11), and says that the former are things which by theirnature are capable of being handled; the latter which cannot behandled and consist in a right (jus), such as servitudes, inherit-ances, debts, &c. This is the primary division, although later on heillustrates how all things may be divided into movables and im-movables, and inquires under which class each incorporeal thingis to "be accounted. Looking at the provisions of the Sale of GoodsOrdinance as to delivery of part of the goods sold, as to the manu-facture by the seller of goods to be sold, as to the perishing ofgoods before sale, as to sales by sample and description, as to therisk in respect of goods sold, &c., it is clear that the Ordinancewas intended to apply to tangible or corporeal things only.
Domhorst, K.C., in reply.
„Cur. adv. vult.
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12th May, 1903. Layahd, C.J.—
In this case the plaintiff sued the? defendant fpr the recovery ofdamages alleged to have been suffered ,by the plaintiff by reasonof the breach on the part of the defendant of an alleged promioeby the defendant to sell to the plaintiff the rent of the arrack farmof the town and district, of Negombo for the years 1902 and 1903.At the trial on 8th daytof December, 1902, it was admitted that thealleged promise was not in writing, and the only issue that was
1903.
May 12.
2-
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1903.decided was, whether the agreement not being in writing and
May 12. eigned by the defendant was enforceable by action, the other issuesLayaad,C.J. the case being reserved.
The District Judge of Colombo held that the alleged agreementwas enforceable by action, although not in writing and not signedby defendant. The defendant has appealed against that judgment,and it is argued by the appellant’s counsel that the provisions ofsection 4 of the Ordinance No. 11 of 1896 apply to this contract,and as no note or memorandum of it has been made in writingand signed by the defendant, it is not enforceable by action inview of the provisions of sub-section 1 of that section.
The Ordinance No. 11 of 1896 has been adapted from “ The Saleof Goods Act, 1893.” It is admitted that the provisions of that Actwould not apply to such a contract as the present. It is, howeverargued that the Legislature in defining goods as including allmovables except money extended the meaning of goods beyondcorporeal movables, and that goods as defined by our Ordinanceinclude incorporeal movables as well. Our law appears to dividethings into two classes, corporeal or incorporeal; the former aredivided into movables and immovables. Movables, again, aresubdivided into things which move themselves and things whichrequire to be moved. Incorporeal things are such as are not visibleto the sense. The present action appears to me to be concerningan incorporeal thing. Van Leeuwen (Koetze’s Translation, vol. I.,p. 145) lays down: “ But in order to decide whether debts, actions,and credits are to be deemed movable or immovable property, thisdistinction must be drawn, viz., that actions and the right whichone has over immovables are themselves also to be considered asimmovable, and all others are to be deemed movable property;” andit is argued that the Legislature in using the word “ movables ”intended to include therein not only what are actually movables,but what were deemed to be ‘‘ movable property ” under theRoman-Dutch Law, Bonser, C.J., in Babapvlle v. Bajaratnam(5 N. L. It. 1), held that the right to recover a sum of money wasmovable property for the purpose of section 19 of Ordinances No. 15of 1876. That decision does not appear to me to be in point, as theterm " movable property ” ha^ been expressly defined by that Ordi-nance to ” meqn* property of every description except immovableproperty.” The right ^to' recover a sum of money riot beingimmovable property t is covered by the definition, of movableproperty given in that Ordinance. We have also been referred inthe course of argument to the judgment of this Court in Dawson v.Van .Geyzel (3 C.L.R.,p.35), in which Justices Lawrie and Withersboth express their opiiiion that “ .movable property” in section 2
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of the Ordinance No. 8 of 1871 means only corporeal movables; and 1003>it is argued that that opinion was arrived at by the Judges, because Mayli.under the provisions of section 7 of that Ordinance all movable Layabd, C.J.property other than corporeal movables are expressly excludedfrom the operation of that Ordinance. That section, however,whilst expressly excluding “ ehoses in action,” does not mentionor refer to all the other kinds of incorporeal movable property.
The Judges, therefore, in expressing that opinion could not merelyhave relied on the provisions of that section, but must have lookedat the general scope of the Ordinance.
,The question to be decided by us is whether the Legislature indefining “ goods ” as including " all movables except money ”intended to use the word ” movables ” as extending beyond theordinary significance of the words, viz., things which move them-selves and things which require to be moved, to such incorporealthings which, though not really movables, are deemed under theBoman-Dutch Law to be movable property.
It is not surprising on reading the Ordinance No. 11 of 1896,which has been copied from the English Act dealing only withcorporeal movables, to find that it is inapplicable in almost everyrespect to incorporeal movables. I need only mention some of theprovisions .which seem to me inapplicable, viz., all that refer to“ goods to be manufactured,” the sale of goods in “ market overt,”
.the “ seller’s lien, ” “ stoppage in transaction, ” “ sales by sample, ”
“ market price,” and “ breach of warranty.”
It seems quite obvious to me that the word ” movables,” as usedin the definition for goods in the Ordinance No. 11 of 1896, doesnot include anything more than corporeal movables, and thatit was not the intention of the Legislature in using the word“ movables ” to include therein any incorporeal things which arenot strictly movables, though they are “ deemed ” for certainpurposes in our law to he movable property. I would thereforeaffirm the judgment of the District Judge, and remit the caseto the District Court so that the trial may be proceeded with.
The appellant must pay the costs of the appeal,
Wendt,* J.—
The question in this case is whether the contract for breach ofwhich the plaintiff .sues is one which the law requires *to £>e inwriting before it can be enforced. Admittedly * the contract inquestion was not in writing. The District Judge, having heaidthe question argued as a preliminary issue, Ifas held in favour ofthe plaintiff, and the defendant has appealed.
The contract was foi* the sale by defendant to plaintiff of whatis called an “ arrack rent:” that *s *° S£ty> ’a monopoly granted by
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1903. the Government to the “ renter ” of the right to sell arrack to theMay 12. public within a defined district and during a defined period.
Wendt, J. Defendant says the contract is not enforceable by action, becauseit is a contract for the sale of goods within the meaning of section4 of “ The Sale of Goods Ordinance, 1896,” and there was no partacceptance, or part payment, or note or memorandum in writing.The question then is, whether the subject of the contract was“ goods ” within the meaning of the Ordinance.
Section 59 of the Ordinance enacts that in the Ordinance, unlessthe context or subject-matter otherwise requires, “ goods ” includeall movables except moneys, and also include growing crops andthings attached to or forming part of the land which are agreed tobe severed before sale or under the contract of sale. The effect ofa definition in these terms is that the word defined is to have itsordinary meaning, and in addition to denote the things which thedefinition says it is to ‘‘include.” (See the case of Ludoviciv. Nicholas, 4 N. L. B. 12; 1 Browne, 49.) Wha.t then is theordinary meaning of the term “ goods ”? It was apparently- notintended to be a mere translation of the Latin term bona, whichin our law includes land, for the intention to be gathered fromthe second branch of the definition is to exclude all interests inland. Goods, I think, in its ordinary signification, means tangiblemovable property. I have not been able to find in any Englishcase a definition of the term apart from the definition containedin a statute. In the Statute of Frauds, section 17, the term “ goods,wares, and merchandise ” is said by Lord Blackburn, in summingup the effect of the cases, to comprehend all tangible,, movableproperty (Blackburn on Sale, pp. 6, 9). In Humble v. Mitchell (11 Aand E, p. 205) it was sought to bring shares in a joint stock companywithin the 17th section of the Statute of Frauds, upon the authorityof several cases which had established that they came within thedescription in the Bankruptcy Act of ” goods and chattels ” of whicha bankrupt may be the reputed owner so as to vest them in theassignees. But the Court of Queen’s Bench held that the languageand intention of the two Acts were distinguishable, and that theshares were mere “ choses in action,”' incapable of delivery, and notwithin the scope of the 17th section. Now, section 4 of the Sale ofG00&3 Ordinance,4 like section 17 of the Statute of Frauds, makespart delivery one of the‘ alternative conditions precedent to thevalidity of the contjact. The right which is the subject of thepresent contract is equally incapable of delivery with a share ina joint stock company, and I think the ratio decidendi of Humble v.Mitchell is therefore applicable. (It will be observed that in theEnglish Sale of Goods *Act of 1893* on which our Ordinance is based
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" goods ” include all chattels personal other than things in actionand money. A share in a company would, I suppose, have fallenwithin this definition but for the exclusion of “ things in action.”Next, what is the meaning of “ movables ”? In the Boman Lawthings were divided into corporeal and incorporeal the formerbeing things which in their own nature were tangible, e.g., land,slaves, elothing, &c., and things incorporeal being such as are in-tangible, e.g., rights, such as inheritance, usufruct, and obligations.Grotius (Maasdorp’s Translation, p. 61) shows that this division wasaccepted by the Roman-Dutch Law, and that corporeal things weresubdivided into movable and immovable. Voet (I, 8, 1—17)bears this out, although he adds (re. 18) that the greatest portionof the Municipal Laws is content with the rough division intomovables and immovables. Dealing with this latter division,Grotius, in one of his opinions (De Bruyn, pp. 293, 296), says:■“ Obligations and other personal claims are not placed in the samecategory with movables, but constitute a separate third class of
propertyNotwithstanding the opinion of some that actiones
personates bonis mobilibus accenseri, most lawyers hold that theseconstitute tertia quoedam species.”
I therefore understand the term " movables ” also to importtangible movable things. The exception of “ moneys ” (not moneyas in the English Act) seems to confirm this view, as though distinctand separate sums of money were contemplated, not money in theabstract. The nature of the provisions contained throughout theOrdinance, as pointed out by my lord, favour the constructionwhich would limit its application to corporeal movables.
The ease of Babapulle v. Raja Ratnarn (5 N. L. R. 1) was decidedupon the special definition in the Ordinance No. 15 of 1876 ofmovable property, which was very different from that with whichwe are concerned. Almost the same may be said of the case ofDawson v. Van- Geyzel (3 G.Ij.R. 35), for although the term ” movableproperty ” was not defined in the Ordinance No. 8 of 1871, yet thedecision proceeded upon the Court’s view of the language andscope of that Ordinance. £jo far as it goes, however, that decision,ruling * that the Ordinance which dealt with sales, among otherdispositions of movable property, applied exclusively to corporealmovables, is in favour of the respondent.%
In the; ease of Marker v. Hassen (2 N.tL. R. 218J this Court had tointerpret the term “ goods ” in section 9 of “ The Prescription Ordi-nance, 1871,” which provided for actions 5or “ goods sold anddelivered.” Bonser, C.j*., considered it to mean ” movable property ”■the equivalent of goods, wares, and pierehandise in the Statute ofFrauds; and Lawrie, J., held it to mean all movables except money
1903,May 12.
Wendt, J.
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1903. bonds, &c., sold and capable of physical delivery and actuallyMayiz. delivered.
Wendt, J. In the result, 1 am of opinion that the term ‘ ‘ goods ’ ’ in theOrdinance means all tangible movable property except moneys,and is also specially made to include in certain cases growingcrops and things attached to the soil.
It follows that the provisions of section 4 of the Ordinance donot apply to the contract upon which plaintiff declares, and thatthe District Judge was right in holding the plaintiff entitled toproceed with his action.
The appeal should be dismissed, and with costs.