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Present: Mr. Justice Wendt and Mr. Justice Grenier.DARLEY, BUTLER & CO. v. SILVA.
D. C., Colombo, 26,864.
Contract in writing—Oral evidence to vary written contract—Saleof
goods—" Future goods "■—Registration—Ordinance No. 8 of 1871—
Evidence Ordinance, s. 92.
The defendant entered into the following contract with theplaintiffs:—" I have this day sold to Messrs. Darlev, Butler & Co.10 tons citronella oil, as per standard Schinel's test, at the rate of76 cents per lb. of 16 oz., in galvanized drums not less than 7 cwt.each. Delivery at the wharf or at your stores ready for shipment,November, 1904, to April, 1905.”
Held, that the defendant could not be allowed to prove that theplaintiffs undertook to supply the drums, as such proof would be atvariance with the terms of the written contract.
Held, also, that the said contract need not be registered under theprovisions of Ordinance No. 8 of 1871.
WbndtJ.—Themovable property contemplated by Ordinance
No. 8 of 1871 must be definite and certain, so that it should becapable of being described and identified in a manner that wouldrender the registration effectual. If the propertyi dealt with bythe instrument is ” future goods ” within the meaning of “ TheSale of Goods Ordinance, 1896," then the instrument would not bea " bill of sale ” within the purview of Ordinance No. 8 of 3871.
PPEAL by the defendant from an order of the District Judgerefusing to frame certain issues. The facts material to the
report sufficiently appear in the judgments.
Van Langenberg, for the defendant, appellant.
Bawa, for the plaintiffs, respondents.
Cut. adv. vult.
October 13, 1908. Wendt J.—
The facts have been so fully set out in my brother Grenier’sjudgment, which I have had the advantage of seeing, that it isunnecessary for me to recapitulate them. I will deal first with theobjection to the validity of the contract, on the ground that it wasnot registered as required by Ordinance No. 8 of 1871. It is, I think,perfectly clear, from the terms of that Ordinance, that the movableproperty contemplated by it must be definite and certain, so that itshould be capable of being described and identified. in a mannerthat would render the registration effectual, which is the object ofthe whole Ordinance. If, therefore, the property dealt with by the
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instrument in question is “ future goods ” within the meaning of 1908.
" The Sale of Goods Ordinance, 1896, ” that is to say, goods to be 0<3tober 13.manufactured or acquired by the se&er after the making of the Wendt J.contract, then the instrument would not be a “ bill of sale ” withinthe purview of the Ordinance of 1871- It is, I think, clear that theparties in making the contract now before us did not contemplateany specific corpus of oil, nor even any oil then in esse, but (if I mayuse the expression) oil at large. It was not even a sale by sample,but the quality was defined by reference to a test known to the trade.
Defendant would have complied with his contract by proceeding tomanufacture the oil and by delivering the specified quantity respond-ing to the specified test. I hold that the contract sued upon wasnot obnoxious to the Ordinance No. 8 of 1871. I must not, how-ever, be understood as assenting to the view which I understand thelearned District Judge to have expressed, viz., that the Ordinanceapplies only to .transactions which, whatever their form, are in effectno more than by hypothecations, and that therefore a bona fide outand out sale of movables need not be registered. On that point 1express no opinion.
The other point argued before us, as to .the admissibility of thesuggested 4th and 5th issues, has, I think, to be decided by section92 of the Evidence Ordinance. The state of facts which, as defend-ant’s counsel informed us, these issues were intended to set up wasthis. Plaintiffs wanted to purchase oil ready for shipment, packedin drums of a particular kind. Defendant could supply the oil,hut had not the drums, and did not see the way to getting them.
Whereupon ft was agreed that plaintiffs should procure the necessarydrums and sell them to defendant, and defendant agreed that ifthey did so, he would fill .them with 10 tons of citronella oil of thespecified quality, and sell both oil and drums to plaintiffs at theprice of 76 cents per lb. of the oil. This statement, apart from itsvariance from the written instrument, which I shall presently dealwith, suggests that the sale and delivery of tfie drums was a conditionprecedent to defendant’s obligation. Issue 4 is not apparentlyworded to raise that question, because the agreement it mentionsmight well have .been by a distinct and separate contract, the breachof which, while it entitled defendants to damages, such damagesconceivably including any damages payable by defendant to plain-tiffs for non-performance of'his contract, would afford no defence tothe action. Paragraph 4 of the answer, too, is not definite uponthis point; it speaks of two contracts. But let us take the statementof counsel.
Clearly the matter suggested in that statement is at least an“ addition to ” the terms of the written document, and must .there-fore be excluded by the principal enactment of section 92 of theEvidence Ordinance. But defendant seeks to introduce it underproviso 2 or proviso 3, Take proviso 2 first. In applying it we
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must have regard to the degree of formality of the document, whichipay vary between (say) a card with a few disconnected wordswritten upon it and a regular notarial instrument [illustration (h)].Here a notarial instrument was not required by law. The contractis, however, on the face of. it complete, defining every point whichone would expect the record of a transaction of the kind to providefor, and ij> is attested. It is not a mere hurried memorandumpencilled on a visiting card. Primd facie, therefore, the Court wouldbe disposed to regard an instrument prepared with so much care anddeliberation as embodying the whole of the engagement between theparties and to shut out the evidence of any separate oral agreement.The suggested oral agreement, moreover, deals with a matter onwhich the document in question cannot be said to be “ silent, ”and in my opinion it contradicts .the document. In the contractof sale embodied in the writing the drums are regarded as belongingto the vendor, and he is to sell them to the plaintiffs, while, accordingto the terms which are stated to represent the true and full contractbetween the parties, the drums are regarded as the property of theplaintiffs, which they are, in the first instance, to sell and deliver todefendant. The two contracts are inconsistent with each other,and to let in defendant’s evidence would therefore be to contradictthe written document signed by him.
The finding that the alleged term which defendant seeks to addto the written contract is inconsistent with it really disposes ofthe attempt to apply proviso 3, because the alleged condition pre-cendent must be capable of standing side by side with the writing.In truth what is set up here is not such a “ contingency ” as illustra-tion (/) to section 92 indicates, but a different agreement as to thesubject of sale from that embodied in the writing.
For these reasons I think the appeal should be dismissed with costs.
This is an appeal from an order made by the District Judgerefusing to frame two issues of law suggested by the defendant’scounsel in the following terms: —
Did the plaintiffs agree to supply the defendant with galvan-
ized drums to enable him to fulfil his contract?
If so, can plaintiffs maintain lEs action?
The District Judge decided two other issues in favour of theplaintiffs, the first one being whether section 10 of Ordinance No. 22of 1871 barred the action, and the other being whether the documentsued on not Tiaving been registered, under Ordinance No. 8 of 1871any action could be maintained on it. Counsel for the appellantadmitted that he was unable to support the appeal on the pointof prescription, and we have therefore to deal only with issues (a)
and (6), and with the question as to the effect of non-registration of 1908.the document under Ordinance No. 8 of 1871.October 13
The action was founded upon a contract dated October 21, 1S04» Gbbnikbby which the plaintiffs alleged the defendant agreed to sell to theplaintiffs 10 tons of citroneUa oil according to a certain standard, ingalvanized iron drums not less than 7 cwt. each. The plaintiffs’cause of action was that the defendant wrongfully failed and neglectedto deliver any oil in terms of the contract to plaintiffs’ damage ofBs. 9,791.25. The defendant answered admitting the contract,but he averred that at the time that the contract was entered intothe plaintiffs agreed to sell and deliver to the defendant galvanizediron drums of the size mentioned in the contract, to enable thedefendant to fulfil the same. The defendant further averred thatthe plaintiffs failed to deliver the drums to the defendant, that thedefendant was consequently unable to deliver oil in terms of hiscontract, and that subsequently the plaintiffs agreed to and actuallydid cancel the contract pleaded in the plaint, and the defendant onhis part cancelled the contract for the sale and delivery to him bythe plaintiffs of galvanized drums.
Primd facie these averments in the answer introduce an elementinto the contract which the terms of it do not permit of. What thedefendant says in effect is that the plaintiffs at the time the contractwas entered into entered into another distinct and independentcontract with him, whereby the plaintiffs were to supply thedefendant with the means of fulfilling the contract pleaded in theplaint. The defendant says that because the plaintiffs did notsupply him with a certain quantity of drums he could not fulfil thecontract with them, but, singularly enough, he asks for no damages,for the breach of the contract he alleges in his answer. He wouldrather suggest that he was excused from fulfilling the contractpleaded in the plaint by reason of the plaintiffs not fulfilling thecontract pleaded in the answer.
Now let us see whether there is anything in the written instrumentitself which would justify the defendant in his endeavour to intro-duce into it, under the provisions of section 92 of the Evidence Act,what he seeks to import into it. I may here refer to the words ofsection 92, which says that “ where the terms of any such contract,grant, or other disposition of property required by law to be reducedto the form of a document have been proved, no evidence of anyoral agreement or statement shall be admitted as between theparties to any such instruments or their representatives in interestfor the purpose of contradicting, varying, adding to, or subtractingfrom its terms.” There are several provisos to this section, but, asstated by Ameer Ali in his work on the Law of Evidence at page725, quoting from Goodeve’s Evidence, p. 365: “ In the applicationof the rule it is necessary to bear in mind rather the principle inwhich it originated than its formal character, and this principle is
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1908. simply to make the instruments the record of the transaction con-Oetobtr 13. elusive of its obligations. Accordingly, the rule does not excludeGrbnier contradictory evidence of mere formal matters, such as dates,A.J.recitals, and so forth, not being of the essence of the transaction;
since, while presumable not to have been stated with formal pre-cision, their correction would not trench on the obligatory portionof the instrument.”
Having this principle in mind, let us now examine the instrumentitself upon which this action is founded, to see what the partiesthemselves intended.it to mean. The instrument is in the followingterms:—“ I have thi6 day sold to Messrs. Darley, Butler & Co.10 tons citronella oil, as per standard Schinel’s test, at the rate of76 cents per lb. of 16 oz., in galvanized drums not less than 7 cwt.each. Delivery at the wharf, or at your stores ready for shipment,November, 1904, to April, 1905." The words are very plain and canhave only one meaning, and that is, that the defendant contractedto supply the plaintiffs with certain quantities' of citronella oil ingalvanized drums. There is nothing from which it may even begathered or inferred that the drums were to be supplied by theplaintiffs. If that was a part of the contract, nothing would havebeen easier than to insert appropriate words to that effect, and I takeit that both parties entered into the contract upon the distinctunderstanding that the defendant was to supply the oil in galvanizeddrums to be procured by himself. What the defendant is nowseeking to do is to vary and contradict the terms of this writtencontract by desiring to lead evidence of an oral agreement that thedrums were to be supplied by the plaintiffs. Such an oral agreementwould, in my opinion, be entirely subversive of the original contract,and render it practically useless to the plaintiffs. I think, therefore,that the District Judge was right in refusing to frame issue (a).
As regards the question of non registration, I entirely agree withthe view taken by the District Judge. It is clear that there was noout and out sale of the oil in question, the oil then being in existence,but the document sued upon was intended to serve simply asevidence of the contract or agreement to deliver oil of a certainquality at a certain time at some future date. The concludingwords of the document are sufficiently'indicative of this. The wordsare, “ Delivery at the wharf or at your stores ready for shipment.November, 1904, to April, 1905.”
I would dismiss the appeal with costs.
DARLEY BUTLER & CO. v. SILVA