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Present: Ennis J. and Shaw J.NOORBHAI & CO. v. JANOO.
722—D. C. Colombo, 48,356.
Sale of goods—Memorandum—No mention of price.
When price has been agreed . upon, it must be embodied in the
memorandum for the sale of goods.
• fJ^HIS was an action for the recovery of a sum of Rs. 3,500 asdamages alleged to have been sustained by the plaintiffs byreason of the failure of the defendant to deliver to them 350 bags ofsugar, which the plaintiffs alleged that the defendant on July J.6,1917, agreed to sell and deliver to them at Rs. 35 per bag.
The defendant admitted the agreement to sell the 350 bags ofsugar, but denied that the price agreed on was Rs. 35 per bag.
He denied that he failed to deliver the sugar, and that the plaintiffshave sustained damages to the extent of Rs. 3,500.
By way of further answer, he stated that he agreed to supply theplaintiffs with 350 bags of sugar out of a consignment which he wasexpecting at the current market rate on the date on which deliverywas to be made, and that on the arrival of the sugar he notified theplaintiffs of its arrival, but that the plaintiffs refused to pay thecurrent market rate, to wit, Rs. 41 per bag, for the sugar and removeit, and that the sugar was consequently not delivered to theplaintiffs.
The parties went to trial upon the following issues: —
(1) and (2) On facts.
Can the plaintiffs maintain this action in the absence ofsome note or memorandum in writing of the contract signedby the defendant?
Can the plaintiffs lead oral evidence to prove that the priceagreed on was Rs. 35 per bag?
1 24 Q. B. D. 683.
» (1911) 1. K. B. 520.
( 187 )
The defendant contended that the agreement to sell should havebeen reduced to writing, and that the document P 1 which plaintiffsproduced was insufficient in law. No part of the price was paid,and no part of the goods were delivered.
The defendant further contended, even if the document P 1 wasenough to satisfy Ordinance No. 11 of 1896, that the plaintiffs couldnot lead oral evidence to prove the price.
The learned District Judge made the following order on the law: —
I am of opinion that the document is sufficient compliance with therequirements of section 4 of the Ordinance No. 11' of 1896.
I cannot accede to the proposition that it is not
competent to the plaintiffs to prove orally that the price was agreedon in respect of the goods referred to in that document, and what thatprice was. The document is of a purely informal character.
I decide the third and fourth issues against the defendant.
After trial the Judge held on the issues of fact in plaintiffs’favour, and entered judgment as prayed for.
The document P 1 was as follows: —
E. A. Janoo.
D. 0. No. 1.Colombo, July 16, 1917.
The Storekeeper, Pettah.
Please deliver the under-mentioned articles to Seth T. A. JeewanjeeNoorbhai or bearer.
Sugar bags 350 cash.(Signed) Naina Mohamado,
A. St. V. Jayawardene (with him Bartholomeusz), for appellant.
Bawa, K.C. (with him R. L. Pereira), for respondent.
February 28, 1919. Ennis J.—
This was an action for damages for breach of contract to sellsugar. The appellant contends that there was no memorandum inwriting such as is required by section 4 of the Sale of Goods Ordi-nance, No. 10 of 1896. The document P 1 was produced, but thatcontained no mention of the price agreed upon. Both the partiesin the case concurred in saying that a price had been agreed on,but they differed as to the price itself. The learned Judge heldthat P 1, being only the counterfoil, should be read as one documentwith its foil, and it was suggested in the course of the case thatthe foil contained a note of the price. The defendant-appellantproduced a foil in the book D 5. The learned Judge held that thecounterfoil P 1 did not come from the book D 5, on the ground thaton comparing the printed lines on P 1 with the books D 5 the lines
Noorbhai 4Co. v. Janoo
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Noorbhcti <bOo. «. Janoo
did not correspond with the lines on the counterfoils of the otherfoils in D 6. We have had these two exhibits before us, and-1 amunable to agree with that conclusion. One of the counterfoils inthe book has been found to be identical with P 1 as regards thealignment, and very few of the counterfoils appear to have thesame alignments. The book must have been together and trimmedafterwards, so that the alignments are not exactly the same. Thispoint having failed the respondent, it appears that the memorandumdid not contain mention of the price. There are two English cases,Acebal v. Levy and another 1 and Hoadly v. M’Laine,* both to theeffect that when the price had been agreed upon, it must be embodiedin the memorandum. The formalities required by the Sale of GoodsAct not having been complied with, the appellant is entitled to'succeed.
The appeal is allowed, with costs; and the plaintiff’s action isdismissed, with costs.
Shaw J.—I agree.
NOORBHAI & CO. v. JANOO