Wakilii

Kassam Jivraj and Company Limited v Gulamhussein and Company Limited (Civil Case No. 42 of 1947 (Mombasa))

East African Court of Appeal · [1951] EACA 337 · 1951 Judgment for Plaintiff; Counterclaim Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First instance civil suit for breach of contract for sale of goods
Decision
Plaintiffs awarded refund and damages for non-delivery of chora; defendants awarded damages for non-acceptance of tuer, val, and maize; inquiries directed to ascertain quantum of damages

Observed later treatment

No later-treatment classification is recorded for this judgment.

Citator coverage is limited to judgments in the Wakilii corpus and source-matched treatment records. Absence of a signal is not an assertion that the case remains good law.

AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions—always read the source judgment before relying on it.

Holding

The court held that the defendants breached the contract by failing to deliver 250 tons of chora paid for by the plaintiffs, and that there was no equitable set-off between independent contracts. The plaintiffs were entitled to refund of the purchase price with interest and damages measured by the difference between contract price and market price at the date of breach. The court found that the plaintiffs had waived their right to reject late-shipped goods (except juvar) and maize shipped in two lots, and were liable for the defendants' loss on resale. Damages for perishable goods must be mitigated by resale within a reasonable time.

Outcome

Plaintiffs awarded refund and damages for non-delivery of chora; defendants awarded damages for non-acceptance of tuer, val, and maize; inquiries directed to ascertain quantum of damages

Facts

The plaintiffs, a Mombasa trading company, contracted on 29 October 1946 to purchase large quantities of grain from the defendants in Lourenço Marques. Payment terms required a telegraphic deposit of Rs. 125,000 and irrevocable letters of credit for the balance. The plaintiffs delayed payment and the letters of credit were defective. On 12 November 1946, a new contract was entered for 200 tons of chora and 250 tons of chora were freed from the original contract to be shipped per first available steamer, for which the plaintiffs paid in full. A separate contract was made for 800 tons of maize. The defendants shipped various goods but the plaintiffs failed to honour sight drafts for maize and other goods. The defendants refused to deliver the 250 tons of chora unless all outstanding drafts were paid. The plaintiffs refused and the defendants resold the goods elsewhere.

Issues

  1. Whether the defendants breached the contract by failing to deliver 250 tons of chora for which the plaintiffs had paid in full.
  2. Whether the defendants were entitled to set off the purchase price of chora against unpaid purchase price of maize and other goods.
  3. Whether the plaintiffs waived their right to reject goods shipped late or in excess of contracted quantities.
  4. Whether there was a binding contract for the purchase of 800 tons of maize.
  5. Whether the plaintiffs waived their right to reject maize shipped in two lots with a shortfall.
  6. What is the proper measure of damages for non-delivery of goods where there is an available market.
  7. What is the proper measure of damages for non-acceptance of perishable goods.

Orders

  • Judgment entered for the plaintiffs on their claim for refund of purchase price of 250 tons chora (Sh. 149,870) with interest at 6% from 1 January 1947 until filing of suit and at 6% thereafter until payment.
  • Inquiry directed to Deputy Registrar to ascertain market value of chora on 1 December 1946 to determine damages for non-delivery.
  • Judgment entered for the defendants on their counter-claim for loss on resale of tuer (£1,253-0-5) and val (£528-16-5), totalling £1,781-16-10.
  • Inquiry directed to Registrar to ascertain defendants' damages on maize as the difference between contract price and resale price to Adamjee Walji & Co. and East African Milling and Trading Co. Ltd.
  • Costs awarded on both claim and counter-claim.
  • Interest at 6% allowed on both claim and counter-claim from 1 January 1947 until filing of suit and at 6% thereafter until payment.

Rules and key headnotes

Contract Law — Sale of Goods — Multiple Contracts — Independence of Obligations
Where parties enter into multiple distinct contracts for the sale of different goods, each contract stands on its own and must be performed independently. A breach of one contract by the buyer does not justify the seller in refusing to perform another distinct contract.
Contract Law — Set-off — Equitable Set-off — Independent Debts
Equity does not allow set-off as between mutual independent debts unless there is some special equity justifying a set-off. Where a seller is under an obligation to deliver goods for which the buyer has paid, and the buyer owes money under a separate contract, there is no equitable set-off between the purchase price paid and the debt owed under the other contract.
Contract Law — Damages — Non-Delivery — Measure of Damages — Available Market
Where a seller wrongfully fails to deliver goods and there is an available market for the goods, the measure of damages is the difference between the contract price and the market price at the time when the goods ought to have been delivered. The price at which the purchaser might have resold the goods is irrelevant where no question of loss of profit arises and there is an available market.
Contract Law — Waiver — Acceptance of Late Delivery — Knowledge of Facts
A purchaser who agrees to accept goods shipped late or in excess of contracted quantities, with full knowledge of all the facts, waives the right to reject those goods for late shipment or excess quantity.
Contract Law — Sale of Goods — Delivery — Instalments — Presumption of Single Delivery
Where a contract for the sale of goods is silent as to whether goods are to be supplied in one lot or in instalments, and there is nothing in the documents to show that the parties intended more than one shipment, the rule is that the complete quantity must be delivered at one time.
Contract Law — Damages — Non-Acceptance — Perishable Goods — Duty to Mitigate
Where goods are of a perishable nature, it is the duty of the seller to mitigate damages by reselling within a reasonable time. The seller is only entitled to recover loss on resale up to the point of reasonable resale, and any subsequent loss due to unreasonable delay is not recoverable.
Contract Law — Consideration — Promise to Perform Existing Duty
A promise to perform an existing contractual duty does not afford good consideration. An arrangement whereby parties promise to do nothing more than they are already bound to do under previous contracts does not constitute a binding contract.

Legislation cited (6)

  • Sale of Goods Ordinance s.51(1)
  • Sale of Goods Ordinance s.51(2)
  • Sale of Goods Ordinance s.51(3)
  • Sale of Goods Ordinance s.30(2)
  • Sale of Goods Ordinance s.32(1)
  • Sale of Goods Ordinance s.48(3)

Cases cited (2)

  • Wetheim v Chicoutini Pulp Co (1911) AC 301
  • Barrow v Arnaud (1846) 8 QB 604

Full judgment

↓ Download PDF

The original judgment as reported. Read the original PDF before relying on any passage.

Kassam Jivraj and Company Limited v Gulamhussein and Company Limited (Civil Case No. 42 of 1947 (Mombasa)) [1951] EACA 337 (1 January 1951)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.