KEARLEY & TONGE, LTD., v. PETER

021-NLR-NLR-V-24-KEARLEY-&-TONGE,-LTD.,-v.-PETER.pdf


( 78 )
1922.
[FulI • Bench.]
Present ; Bertram C.J. and Porter and Schneider JJ.KEARLEY & TONGE, LTD., v. PETER.
50—£>; C.f Colombo, 2,103.
**
Agreement to import goods for anotherr—Clause . Ip. contract. that ail com-plaints regarding gdods should be made, within seven days of arrivalof goods—Latent defect in' goods—No complaint "made withinseven days—Claim for damages.
Defendant ordered . a consignment of Australian jama through theplaintiffs, and it was agreed between them that all' complaintsregarding the geode should, be made within seven -days'-from arrivalof the goods. The goods arrived in November, 1920, and seventeenspecimen cases Were delivered todefendant at onc^, and the restwere, -by agreement,, kept at plaintiffs’ stores . and delivered onFebruary 4, .'1921!;'. -The defendant found the seventeen cases ingood condition, ."but—-found that . some of the tins delivered in■February were leaking-owing … to bad soldering. The defendantclaimed damages in. respect of the bad tins.
Held [per . Bebtham ' C.J;. and Schneider J. – (Porter •J.dissenliente)], that as the defect was . a – latent defect the–defendantwas entitled to claim damages, even though he -had made no claimwithin seven days.
BbrTbam C.J.—The -fact that the -buyer has examined the goods,before '■ accepting them does not prejudice any claim he may have,■as regard^ any defects/which a reasonable, examination would nothave . revealed,' It is', ‘possible for "a seller by-“special contract to.contract, himself .-out of the pliability which –'the -law imposes "uponhim, J.knd the question- in this/ case is,-jias he effectively.^ done so ?In other words, is it the true meaning of the (danse that the buyerundertookto make within seven days any complaint which hemight have to make, even with regard to a defect, whichwith those seven days could not possibly be known to him,and renounced the right to make any such complaint .afterwards, …. The- law regards with jealousy any ‘ attempt by personswho are liable under the law unreasonably to relieve themselvesof their responsibilities by the insertion of general words in aprinted contract. It requires them in such cases to make theirmeaning clear by express words.-
THE factst are set out in the judgment of the Chief Justice.
H. J. C. Pereira, K.C. (with him Navaratnam), for defendant,appellant.—Clause 8 of the indent cannot include latent defectswhich were not discoverable, within seven days of delivery. Itcould only he construed, to cover defects that could be discoveredon inspection. It was: the duty of the plaintiffs to supply goods of a
( TO )
merchantable quality. This is an implied condition required by the 1982.
■ Sale of Goods Ordinance, No. 11 of 1896, section 14 (2) and 15 (2) Keariey <L,
. The rule that risk passes with the property does not apply to T{m9e*damages resulting from a latent defect. There is evidence of the Vsurveyor, which hils not been .rebutted by. the plaintiffs, that thesoldering was inefficiently carried out.: This is a defect whichcould not have been discovered by the.-plaintiffs on inspection at thetime of delivery. The fact that the seventeen cases delivered inNovember were to all outward appearances good and merchantableis evidence that the defect Wat latent and could be found out onlywhen the jam began to exuded Counsel cited Drummond v. VanIngen,1 Jones v. Juet]e and HeUbutt v., Hickson.3
H.t V. Perera (with, him Spencer Rajaratnam), for1', plaintiffs,respondent.—Clause 8 was understood by the parties to includeall defects both patent and latent, and so it was acted on by themfor years. There is definite evidence, that this clause was insertedso that the plaintiffs may pass on their liability to the manufacturers.
It is always open to the parties to contract out of the Sale of GoodsOrdinance, and so they have done fix this case. Therefore, conditionsas to merchantable quality provided in sections 14 (2) and 15 (2).
(c) will not apply (Sharp v. The Great Western Railway Co.)*
' -■ The surveyor’s evidence is of no value either as regards thecondition of the'jam -or as regards the soldering of the tins. Hedooes not pretend to be an expert. The question whether thedefect was a latent defect or not is a question of fact, and shouldhave been put in issue. Then plaintiffs could have called evidenceto show that it was not latent. Now it is not, open to the defendantto raise, for the first time in appeal, a point of law which depends, onfacts not before the Court.
J. C. Pereira, K.C., in reply.
cur. adv. wit.
September 26, 1922. Bertram C.J.—
This is a commercial action relating to a claim by the defendantwith respect to certain jams said to have proved unmerchantable,which he ordered from the plaintiffs as Commission Agents.
The learned District Judge has delivered a very carefully reasonedjudgment and has made a number of findings of fact, with practi-cally all of which I find inysfelf in agreement. These findings offact, however, do not affect the real issues -of the case, which are,in the firsts place, a question of the legal interpretation of a clause inthe contract; and, secondly, a question of fact* arising out of thatinterpretation.
1 {1887) 12 A. c. 282.3 (1872) lr. R. 7 <7. P. 488.
* (1868) L. It. 3 Q. B. 107.* -(1841) 0 M A W. 7.
( 80 )
1988.
Bertram
CuT.
Kearley <bTonga, Ltd,.,v. Peter
It is not necessary to go very fully into the facts. Briefly statedthey are as follows: —The defendant ordered a consignment ofAustralian jams through the plaintiffs, and the plaintiffs undertookto order and import them on' plaintiffs’ account. It is recognizedthat it was the plaintiffs and the defendant who are the parties tothe contract. The jams duly arrived early in November, 1920, anda partial delivery of the consignment was made at once. One caseof each kind of jam, seventeen in all, selected haphazard were dulydelivered to the defendant and found to be in perfect condition.The delay in delivering the rest of the consignment, according tothe findings of the learned District Judge, was due to a request ofthe defendant that plaintiffs should keep the jams for him as he hadno spare storage space. A dispute as to the price at which the jamswere to be invoiced arose. This was settled and the price adjustedon November 18, 1920. The remainder of the jams was not removed’ to defendant's premises until February 4, and on February 5 he gavehis promissory note for the amount due.
The defendant states that within a few days of the arrival of thesejams he had occasion to open two cases, and found that some of thetins in the cases were leaking, and that the jam which had exudedfrom these leaking tins had spoiled the labels of the others so as tomake them most unattractive to customers. The defendant stated,at first in qualified terms, but afterwards with some assurance,that he mentioned the circumstance to the plaintiffs’ broker thesame day. The broker denies this, and says that nothing was saidto him till the beginning of March or early in April, and I agree withthe learned Judge that the broker’s njemory of the circumstance ismore to be relied on. At any rate the defendant did not take thematter seriously, and, perhaps, thought the defects found in thesetwo cases were accidental. He did not have occasion to open anymore cases until about April 20. He then discovered on openingseveral cases that they were all in the same condition, that is to say.jam had exuded from some of the tins in each case and had spoiltthe labels of the whole. He thereupon took measures to have asurvey made and complained to the plaintiffs. . He did not giveplaintiffs notice of the survey, and the surveyor states that in themajority of cases this is not done. The plaintiffs on April -25, twodays before the survey, wrote to their principals in Australia saying“we regret to have to report that the tins that contained the jamwhich you sent us have been badly made, and the contents are oozingout and damaging the labels.” They asked for a further supplyof labels, a 100 of each-kind, and concluded, “the tins being unsale-able, our customer will probably claim on you for the damagedartices, unless we are able to replace the labels, therefore pleasebe good enough to expedite the despatch as soon as possible.”Two days later a-survey was made by Mr. G. F. Edge, who is Lloyds*surveyor. His survey report stated that he found 707 tins out of
( 81 )
800 to be leaking. From an examination of the cases he concludedthat the damage could not have taken place since they were takendelivery of by the consignee. The .tins which had leaked most.were those containing red current jelly and apple jelly, whichcompromise 504 tins out of the 707. The surveyor declared “afterclose examination of the tins, I am of opinion that the soldering isinefficiently carried out, and presumably chemical action sets upquicker in the case of the red current and apple jellies than in theother .jams, but that leakage eventually takes place, more or less,in all. " He pronounced the damaged tins unmerchantable andrecommended a sale.
1922.
Bertram
• c.j:
Kearley dtrTonge, Ltd.v. Peter.
The plaintiffs, on the report of the survey being communicatedto them, declined to take back the damaged tins, and they were sold.They were by no means worthless, and realized some 60 cents a tin.The nett sum realized was- Rs. 233.69, and defendant gives plaintiffscredit for this amount..
The first question we have to consider is the question of law, thatis to say, the legal interpretation of clause 8 in the contract, whichis in the following terms :—“All complaints regarding the goodsto be made in writing within seven days from arrival of the goods.-"In my opinion “ arrival ’’ here means “ arrival at the port ofColombo. ” I consider that effective delivery of the whole con-signment was given by delivery of the seventeen specimen cases,and that the defendant had thus an opportunity of examining theconsignment on its arrival. The clause is not very definitelyexpressed. It says that all complaints are to be made within sevendays, but it, does not definitely say that in any case in which no suchcomplaints are made they will not be entertained afterwards. Xwill take it. however, that this is the meaning of the clause.
The question which now arises is this: Is this clause to be taken asabsolute, and as including not only defects which could have beenreasonably ascertained by examination of the goods within theseven days referred to, but also latent defects which cpuid notreasonably be so ascertained? The general law oh the subjectdoes draw a distinction between these two classes of defects/ Itis specially enacted in the Sale of Goods Act, and the enactmentsin both cases embody- the result of a line of decided cases, thatwhether goods are bought by description or by sample, the fact thatthe buyer has examined the goods before accepting them does notprejudice any claim he may have as regards any defects which areasonable examination would not have revealed. See sections 14
and 15 (2) (c) of the Sale of Goods Ordinance, No. 11 of 1896. Itis, of course, possible for a seller by a special contract to contracthimself out of the liability which the law thus imposes upon him.and the question'in this case is : Has he effectively done so?In other words, is it the true meaning of the clause that the buyerundertook to make within seven days any complaint, which he might
( 82 )
1022.
BbbtbauCUT. *
Kearlcy ATonge, Ltd.,v. Peter
have to make, even with regard to a defect, which within thouseven days could not possibly be known to him, and renouncedthe right to make any such complaint afterwards.
i*
I attach little importance, -to the admission which the- defendantmade under very , skilful cross-examination, that he “ understoodunder the indent that if he did not complain in seven days inwriting he could not complain/' What we have to determine is, notwhat the defendant, thought the words meant, but what they mustbe taken in law to mean. Parties to cases in cross-examinationare often induced to express peculiar views of their legal rights.Sometimes these indiscretions may be put right by re-examination.I have no doubt that if the defendant had been asked in re-examina-tion whether, in so speaking, he intended to include complaints asto defects of which he could not become aware till after the sevendays were over, he would at once have qualified this admission.
The law regards with jealousy any attempt by persons who areliable under the law. unreasonably to .relieve, themselves of their re-sponsibilities by the insertion of general words in a printed contract.It requires them in such cases to make their meaning clear byexpress words. Perhaps the most conspicuous example of thisprinciple is to be found in the iLaw of Carriage by Sea (see Carveron Carriage by Sea, paragraph* 77, 94, and 101, where the cases atecollected). Thus, it, is presumed, unless stated to the contrary, thatthe shipowner, even;1 where he has excluded liability for negligence,is. to continue liable ;for negligent acts and defaults committed byhimself or by his servants or agents engaged in performing thecontract. " General words excepting losses from a particular causedo not protect him if that cause .came into operation through hisown neglect or default." See the Xaiitho.1 In another case theshipowner had disclaimed liability for loss by thefts, but thiswas held not to include thefts by persons on board the ship. “ itis not, I think, reasonable to suppose, where the language used isambiguous, that it was intended that the shipowner should notbe liable, for thefts by one of the crew or persons on board. Theshipowner must protect himself if he intends this by the useof unambiguous language.
On the same principle, £ am of opinion, in view of the generalprinciples of the law as laid down in the Sale of Goods Ordinanceand in view of the extreme generality of the clause under considera-tion, that it must not be taken to include complaints with regardto latent defects which could not be discovered by a resonableexamination within the seven days referred to.
Mr. H. V. Pererhj who appeared for the respondents, cited tous on the other side an authority which was both interesting andapt (Sharp v. The Great Western Railway Co. (supra)). In that casean agreement for the supply of railway engines provided the test of
1 (I6S7) 12 A. C. SOS.
( 83 )
a 1,000 miles run up for the purpose of testing the materials and 1828.
workmanship of the engines supplied, and it was provided that if
the engine was perfect at the end of the run-, the supplier should have CJ.
no further liability in respect of these matters. The run disclosed Keartey &
no defects, but afterwards an engine burst, and it was contended that
■this was due to a defect in the copper lining of the fire box, which,
owing to inferiority in quality, had worn thin’ with undue rapidity,
and it was argued that the test could not be deemed to relieve the
suppliers of liability for defects which could not have reasonably
been discovered in the course of the trial run. This argument was
disallowed, and the Court refused to permit evidence to be led for
the purpose. It must be borne in mind, however, that each case
must depend upon its own circumstance, and that in the case
cited the words relieving the supplier from liability were full and
explicit.
This being the legal position, let us proceed to Consider the questionof fact. Was there in the case of these jams a.Iatentidefect renderingthem to a certain extent unmerchantable ? It may be taken thatjams packed in tins, for sale by a retail traded lja that condition, arenot merchantable, unless they are so seedjrefy soldered, that thejam will remain good for a. reasonable period. The defendantstates, and there is nothing to cohtradict faim, that jams might hereasonably expected to remain in good condition for two years ifnecessary. In this case thejp.eriod withm which the alleged defectmanifested itself was about isix months, and it seems, to me thata retail trader would be entitled to expect his imported jams toremain in good condition for at least this period. What then is .the.latent defect alleged ? The surveyor says in his Report, * ‘after closeexamination of the tins, .1 am of opinion that soldering is ineffi-cient]^ carried out/’ and proceeds to refer to/ . Chemical action insuch a way as to show , that the exuding of the jams from-.the tinswas, in his opinion, due to chemical action (by'which j take him tomean fermentation), and that this chemical action was caused, byinefficient soldering. What ,is morC, . this; Was . just the view “theplaintiffs themselves took as to theprobable Realise of the troublewhen it was reported to them by the defendant. In. writing totheir Australian suppliers they said :• “ We regret to have to reportthat the tins that contained the jain which you sent us have been
badly made, and the contents are oozing out.. ’ Why then shouldthis natural explanation, supported, as it is*, by the consideredopinion/ of the siirveyor made after, close ekamfeafcich, :not beaccepted? Personally, I am prepared to accent1 it.that';
the surveyor diselaiiiis the <^alxfr6ations .of “ail expert as. to how,long jams keep, ” and is ndt 'sure'that he- ha^evdi-' examined jams'before, .but I take it that as. Idoyds^surveyor me.-h^s been jgelected.
— ~ man of practical good sense, Wjio could /be'
il surveys of goods with intelligence. Hebas given ^ his opinion ‘ .
as a
general
(84)
1988.
Bertram
OUT.
Kearley doTenge, Ltd.,Peter
I do not see why in giving his opinion he should be expected toexclude every conceivable alternative possibility.
In my opinion, therefore, the defendant hag suffered damageowing to a latent defect in the jams supplied to him, and the existenceof this latent defect was a breach of the implied condition whichthe law imports into all such contracts that the goods shall be ofmerchantable quality. In respect of that breach he is entitled todamages, and I think that in the circumstances of the case, and inview of the way in which the matter was treated in the Court below,he must be considered as entitled to debit the plaintiff with theamount of his loss, and to treat these damages as due to him on apartial failure of consideration in respect of the promissory noteupon which he is sued. I would, therefore, – allow the. appeal withcosts, and concur in the order made by my brother Schneider.
Porter J,—
In this appeal I regret to find myself of a different opinion frommy Lord the Chief justice and my brother Schneider J. I havehad the opportunity and advantage of reading the judgments of. both the learned Chief Justice and my brother Schneider J., andthe facts of the case are sufficiently stated therein. The points onwhich I differ are three : —
. There is. no evidence on the record that the jam v^as bad.Such evidence as there is appears to. me to be to the effect that thejam was good, and it was eventually sold by auction at sixty centsa tin with . damaged labels. The evidence of Lloyds’ surveyor;himself goes no further than to show that some of the tins wereleaking, and he recommended a saie. One cannot believe thathe considered the jams other, than fit for human food when herecommended their sale. Thb. evidence of the defendant only goesto show that with fresh labels. the jams would have been saleablein the ordinary course of defendant’s business, and they requestedplaintiffs to obtain the labels.
There is no evidence on the record of a latent defect in thesoldering, or any other defect,-which might not have been discoveredby the defendant on examination. The only evidence is the opinionof the Lloyds’ surveyor, who does not pretend to be an expert. Itis worthy of note that the plea of a latent defect was not raised inthe Court below, and never suggested by either parties, or counsel,in the Court below, and it seems to me to be a clever plea raised byclever counsel, for the first time in this Court, when the case camehere on. appeal.
1(3) The clause 8 in the indent is, T think* intended by the parties
to cover such a case as this, and does in law cover the case. Thewords are “all complaints regarding the goods to be made inwriting within seven days from arrival of the goods.” It wouldbe well to consider the position of the parties. The plaintiffs are
( 85 )
brokers, and as such, necessarily, wish to limit the time of their 1022.
liability, so as tq, be able to prefer any claim which they may have _ _
against the pebple from whom they. buy. The/defendant is a *
dealer in provisions with a monthly turnover of Rs. 40,000, and hasbeen so “for some eight "years. He'admits that/* he understood that v. Peter ’’under – the indent if, he did not complain in seven., days in writinghe could' not complain. I attach the greatest importance to thisstatement of the defendant. . It is a statement made on oath, notby a child, but by an astute business man. He was not re-examinedon this point, and I do not think it fair to assume that it wasan indiscretion which could be put right by re-examination, or toassume that %$,.statement would have been qualified by re-examina-tion. I consider that Sharp v. The Great Western Railway Go.
(supra) applies most aptly to the present case. In that case the latentdefect was proved, but as the parties had contracted themselvesout of the Sale of. Goods Act, the parties were held to their contract.
In my opinion, the parties in the present case have by clause 8 oftheir indent contracted themselves but of the Sale of Goods Ordi-nance, No. 11 of 1896, even if the defect in the soldering of the tinswas of such a nature as could not have been discerned by a reasonableexamination. But as I have said above, there is no evidence thatthe defect was of such a nature, except- an expression of opinion byLloyds’ surveyor (who had had nb previous experience of examiningjam tins) that he thought the leakage was due to inefficient soldering.
The letter of the plaintiffs to the sellers of. the Jam in Australia isnothing more than a request to them to. expedite the forwardingof the labels and setting out the complaint made>by the defendantto them.
For these reasons I think that, the Judge in the Court below wasTight, and that this appeal should be dismissed with costs.
Schneider J.—
b
This appeal was partly argued in the first instance before a Benchconsisting of my Lord the Chief Justice and my brother Porter.
After I was associated with them two questions only were argued.
The one of fact and the other of the construction of indent P 1.
Of fact, whether there was a latent defect in the goods whichrendered them unmerchantable; the other, whether clause 8 in the'indent P 1, that all complaints regarding the goods should be madein writing within seven days from the arrival of the goods is absolute,aud shuts out any complaint of whatever nature from being madeafter the time limit fixed by that clause. The contention on behalfof the plaintiffs-respondents was that if there was any defect in thegoods it was not latent, and if defect there was,, whether latent orotherwise, any objection on account of it was precluded; unless itwere made within the terms of clause 8.
I will address myself first to the question of fact.
( ae )1988. The goods in question were jams and jellies o£ several kinds ofBchnkixvermanufactured in Australia and imported to this Colony for sale
J.by the defendant, who is a retail dealer in a large. way of business.
Kearley A I would accept as proved that the goods arrived in Colombo in* November, 1620, and that the defendant took immediate delivery ofseventeen out of forty-eight cases, and that the balance was storedfor him by the plaintiffs and was delivered to him in February, 1921.Shortly after the delivery of these cases, the defendant discoveredthat the contents in ft certain percentage of the tins were exuding,and that the labels had been damaged. He thought that it wouldbe all right if these damaged labels were replaced. He accordinglyasked the plaintiff company for fresh labels.
Subsequently he suspected that the contents of the tins werenot in order, and had a survey made by Mr. Edge, a local Lloyds’surveyor, who reported that upon inspection by him on April 27,1921, he found the cases in fair order, but that on having themopened and examining the contents he found 707 tins out of a totalof 1,800 leaking; that he examined the tins closely and came tothe conclusion that the soldering had been insufficiently carried out,with the result that chemical action had set in. He gave it as hisopinion that these tins were in an unmerchantable condition, andrecommended that they be sold by public- auction. This was done.
The defendant claims in this action to restrict the plaintiffcompany’s demand for the price of the damaged goods to the sumactually realized by their sale.
The surveyor’s report and evidence are not challenged, exceptupon the ground that he is not an expert in jams nor their packingin tins. His own evidence shows that he has not had muchexperience as a surveyor, but it seems to me that the reason urgedagainst the value of his evidence is not sound. It does not want anyexpert knowledge in jams or chemical action or the soldering of tinsto examine tins which had been soldered, and to point out that thesoldering had not been done properly when the contents are apparentlyexuding. It is* matter of common knowledge that fermentationsets in in jams unless they are kept in airtight vessels. But in thiscase, whether there had been fermentation or not, the fact is undeni-able that the jam was exuding, and exuding through apertures leftby defective soldering.
I would, therefore, accept the surveyor’s evidence on the point.1 do so the more readily as there is nothing in the rest of the evidenceagainst accepting his evidence. His .evidence is that the damageto the contents-of the tins was caused by defective soldering. Thequestion then arises,, was that a latent defect? Again, the evidence,to my mind, proves that it was latent in the sense that.it was notdiscoverable in the contents of the seventeen cases which were takendelivery of at first. The defective soldering was concealed by thepaper label in which each tin was wrapped.
( 87 )
A purchaser does not und would not be expected to tear the labelto inspect the soldering. He would assume that it had been doneproperly so long as the label discloses no indication to the contrary.
It is proved by tjtfe evidence called by the plaintiff company thatthe seventeen cases first delivered had been pioked out haphazard,and the defendant's evidence, which stands unshaken proves thatthe contents of the tins in those cases were in order and roused nosuspicion. He disposed of them in the ordinary course of his busi-ness. They were merchantable. The soldering was done by themanufacturers in Australia. The defect, therefore, was in existencewhen the tins left the manufacturers’ possession. It was latenttill the discolouration of the labels led to its detection. There isnothing in the contract under which the goods were sold to precludethe application of the provisions of section 14 of the Sale of GoodsOrdinance, No. 11 of 1896, except the contention regarding the effectof clause 8 of the contract, which I shall deal with presently. Underthe provisions of that section there is an implied condition thatthese goods shall be of merchantable quality. The evidence provesthat they were not merchantable. Hence there was a breach ofthis implied warranty.
It was argued that the goods were of merchantable quality whenthey were delivered in November, 1920, because the course of theexudation of the contents was not discovered till April, 1921. Thisargument is not sound.
It was held in Beer v. Walker 1 that where a wholesale provisiondealer contracted to send at stated intervals, from London by rail,to a retail tradesman at Brighton a quantity of rabbits, that therewas an implied warranty by the wholesale dealer that the rabbitswould be fit for human food, not only when delivered at the BailwayStation in London, but when in the ordinary course of transit theyshould reach the retail tradesman at Brighton, and until he shouldhave had then a reasonable opportunity of dealing with them in theusual course of business.
The facts of that case are analogous to those in this case. Itwas proved that the rabbits were in good order and condition andmerchantable when delivered to the railway at London. Upon orshortly after their arrival at Brighton one of the casks was openedand the rabbits were found to be good, but upon opening the othercask shortly afterwards, the rabbits therein were found not to be ingood order or condition or merchantable or fit for human food.
It is not proved in this case that the tins of jam, which werefound damaged and unmerchantable in April, were not in that statein November, 1920, when delivery was first made. But, assumingthat they were then to all appearance merchantable, yet the factthat they had turned unmerchantable by April would entitle thedefendant to raise the defence of a breach of warranty, because his
1 {1877) 48 L. J. (N.S.) O. P. D. 677.
1988.
SCHKKIDEB
J.
KearUy «&Tange, Ltd.,v. Peter
C 88 )
1922,
SCHNBIDER
J.
Kearley &Tonge, Lid,v. Peter
evidence is, and that evidence stands uncontradicted, that “ it< is acommon thing to keep jam for one or two years.” A' retail dealer,it seems to me, might legitimately claim that the implied warrantyas to merchantableness in this species of goods must be deemed toextend for at least a, period of six months.
It was next contended .that as.defendant had accepted the goods,and had examined the seventeen cases and found them merchantable,he was debarred from impeaching the quality of all the goods. Thatthere was no implied condition as regards the rest. . This contentionagain is not sound.. The proviso to section 14 (2) is that ” If thebuyer has examined the goods, there shall be no implied conditionas reg&rds defects which such examination ought to have revealed.”Here the fact is that there was no examination of the cases notincluded in the seventeen cases, nor was the defect such as wasdiscoverable by the examination of the seventeen cases.
But the main contention on behalf of the plaintiff company, wasthat by virtue of clause 8 of this contract or indent the claim foundedupon .the implied warranty could not be asserted by the defendant,because he had made no complaint in writing within seven days of thearrival o,f the goods. The words of• that clause are ” all complaintsregarding the goods to be made in writing within seven days fromarrival of the goods.”
The contention was that this clause shuts out every complainton any ground whatsoever, unless it were made within seven days.I am unable to uphold that construction of these words. Theymust be strictly constructed against the plaintiff company. Sucha construction is not the natural meaning of the words.
I cannot imagine how a complaint can be made of a defect unseenand unknown. The words are “ all complaints.” They refer, andcan only refer, to complaints regarding such matters as would berevealed by an examination of the goods in the ordinary course ofbusiness. They cannot refer to latent defects. If the words wereintended to protect the plaintiff company altogether from anyclaim whatsoever, the language employed is clearly inapt andinsufficient. It is not possible to give to those . words . the effectwhich would be conveyed by words- such ’ as these, ‘‘ Unlesscomplaint is made within seven days of the arrival of the goods, theplaintiff company are absolved from any claim whatsoever againstthem upon-this contract.”
I would therefore hold against this contention.
In the result I would set aside the decree appealed against, anddirect that judgment be given for the plaintiff company for thesum of Rs. 268.79 lying in Court to the . credit of the action. Theplaintiff company must pay the defendant his costs of the actionand of this appeal.
Set aside.