Wakilii

Singh v Jeram (Civil Appeal. No. 8 of 1944)

East African Court of Appeal · [1945] EACA 4 · 1945 Appeal Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Second appeal from decision of Resident Magistrate, Nakuru, confirmed on first appeal by H.M. Supreme Court of Kenya
Decision
Decree in favour of respondent set aside; appellant entitled to reject the goods and resist the claim for the price.

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court of Appeal held that a contract for the sale of goods is not rendered illegal merely because it was entered into on unlicensed premises under the Traders Licensing Ordinance. Oral evidence of a subsequent variation of the mode of delivery was admissible under section 92 proviso 4 of the Indian Evidence Act because the contract became enforceable by part acceptance and was no longer required by law to be in writing. Where a seller delivers a quantity substantially short of the contracted amount (16 cwt short of 12 tons), the buyer is entitled to reject the goods under section 31(1) of the Sale of Goods Ordinance, as quantity is a material term of the contract, not merely a condition. A buyer who initially rejects goods on one ground is not precluded from later relying on other valid grounds for rejection in his defence. Appeal allowed.

Outcome

Decree in favour of respondent set aside; appellant entitled to reject the goods and resist the claim for the price.

Facts

The respondent owned a chalk quarry and had approximately 12½ tons of chalk stored at his unlicensed premises in Nakuru. On 24 December 1938, the appellant, a soap manufacturer, inspected the chalk and entered into a written contract to purchase 12 tons: 2 tons to be collected at Nakuru within one week, and 10 tons to be booked within one month at the same price. On 6 January 1939, the appellant collected ½ ton at Nakuru and the parties orally agreed that the remaining 1½ tons would be sent by rail to Eldoret along with the 10 tons. The respondent dispatched 10 tons 14 cwt to Eldoret, a shortage of 16 cwt from the agreed 11½ tons. The appellant rejected the goods by letter dated 20 January 1939, initially citing quality concerns. The respondent sued for the price. The appellant defended on multiple grounds including that the contract was void for illegality (unlicensed premises), that oral variation evidence was inadmissible, and that he was entitled to reject for short delivery. The magistrate and Supreme Court found for the respondent.

Issues

  1. Whether a contract for the sale of goods entered into on unlicensed premises is void and unenforceable under the Kenya Traders Licensing Ordinance 1936.
  2. Whether oral evidence was admissible to prove a subsequent oral variation of the mode of delivery under a written contract for the sale of goods.
  3. Whether the buyer was entitled to reject goods delivered short of the contracted quantity under section 31(1) of the Kenya Sale of Goods Ordinance 1930.
  4. Whether section 13(1)(c) of the Sale of Goods Ordinance precluded rejection where the contract was for specific goods or was not severable and part acceptance had occurred.
  5. Whether a buyer who initially rejected goods on grounds of quality could later rely on grounds of short delivery in his defence.

Orders

  • Appeal allowed.
  • Decree in favour of the respondent set aside.
  • Costs awarded to the appellant in this Court and in the Courts below.
  • Order for costs against the appellant in the lower Courts set aside.

Rules and key headnotes

Contract Law — Illegality — Revenue Statutes — Traders Licensing — Effect on Enforceability
An agreement for the sale of goods is not rendered illegal or unenforceable by the fact that it was entered into on premises not licensed under a traders licensing ordinance where the ordinance is a revenue-collecting measure rather than one enacted to enforce public policy or protect the public, and where the contract on its face is not one which ought not to be enforced.
Contract Law — Sale of Goods — Definition of 'Store' — Isolated Transaction
The definition of 'store' in a traders licensing ordinance as 'any building or part thereof in which goods are sold or exposed for sale' points to a habitual or continued course of conduct rather than an isolated act of selling, and a single sale of goods stored at a dwelling-house does not render the premises a 'store' requiring a licence.
Evidence — Oral Evidence — Variation of Written Contract — Admissibility
Where a written contract for the sale of goods has become enforceable by the buyer's acceptance of part of the goods under section 6(1) of the Sale of Goods Ordinance, the contract is no longer one required by law to be in writing, and oral evidence of a subsequent oral agreement to vary the mode of performance is admissible under proviso 4 to section 92 of the Indian Evidence Act.
Contract Law — Sale of Goods — Rejection for Short Delivery — Material Term
Where a contract specifies a definite quantity of goods without qualifying words such as 'about' or 'approximately', quantity is a material term of the contract, and a substantial variation in quantity (16 cwt short in a contract for 12 tons) entitles the buyer to reject the goods under section 31(1) of the Sale of Goods Ordinance, regardless of whether the goods are specific goods or whether part acceptance has occurred.
Contract Law — Sale of Goods — Section 13(1)(c) — Scope of Application
Section 13(1)(c) of the Sale of Goods Ordinance, which provides that breach of conditions can only be treated as breach of warranty where the contract is not severable and the buyer has accepted part of the goods, applies only to conditions to be fulfilled by the seller and not to material terms of the contract such as the quantity to be delivered; section 31 on short delivery applies to all goods whether specific or not.
Contract Law — Sale of Goods — Rejection — Grounds — Change of Ground in Defence
A buyer who has repudiated a contract for a given reason which fails him is not precluded from raising other defences in litigation; if a buyer had repudiated giving no reason at all, all defences would be open to him, and his reasons for initial rejection are not crucial to the defences available in subsequent proceedings.
Civil Procedure — Costs — Apportionment — Success on Issues
The general rule is that costs follow the event and the party who on the whole succeeds in the suit gets the general costs, but where the suit involves separate issues the costs of any particular issue go to the party who succeeds upon it; however, for an issue to entitle the unsuccessful party to costs of that issue, it must be an issue which has affected the result of the suit in whole or in part, and success on alternative defences which do not affect the eventual total success of the successful party does not warrant apportionment of costs.

Legislation cited (8)

  • Kenya Sale of Goods Ordinance 1930 s.6(1)
  • Kenya Sale of Goods Ordinance 1930 s.13(1)(c)
  • Kenya Sale of Goods Ordinance 1930 s.31(1)
  • Kenya Traders Licensing Ordinance 1936 s.2
  • Kenya Traders Licensing Ordinance 1936 s.4
  • Indian Evidence Act s.91
  • Indian Evidence Act s.92
  • Kenya Civil Procedure Code s.27

Cases cited (11)

  • Payne & Roth v Lillico & Sons (1920) 36 TLR 569
  • British & Benningtons Ltd v N W Cachar Tea Co Ltd [1923] AC 48
  • Bessler & Co v South Derwent Coal Co Ltd [1937] 4 All ER 556
  • Braithwaite v Foreign Hardwood Co [1905] 2 KB 543
  • Ross T Smyth & Co v Bailey & Co [1940] 3 All ER 60
  • North Western Salt Co v Electrolytic Alkali Co [1914] AC 461
  • Morris v Baron & Co [1918] AC 1
  • Field v Great Northern Railway Company (1877) 2 Ex D 261
  • Ogle v Vane (Earl) (1868) LR 3 QB 272
  • Reid Hewitt & Co v Joseph [1918] AC 717
  • Blank v Footman Pretty & Co (1888) 39 Ch D 678

Full judgment

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Singh v Jeram (Civil Appeal. No. 8 of 1944) [1945] EACA 4 (1 January 1945)
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.