Wakilii

Uttamchand and Co. Ltd v Hawkes and Co. Ltd (Civil Appeal No. 45 of 1954)

East African Court of Appeal · [1955] EACA 287 · 1955 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from the Supreme Court of Kenya challenging an award in favour of respondent confirming house for the price of goods procured under an indent
Decision
The judgment of the Supreme Court of Kenya awarding the respondent Sh. 24,117.25 was upheld

Observed later treatment

No later-treatment classification is recorded for this judgment.

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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

Held that a confirming house acts within its authority and exercises reasonable skill and diligence when it accepts delivery of goods showing a slight excess in quantity (approximately 3% over) and a negligible delay (two days), where the market conditions at the time of delivery showed the principal would have wanted the goods accepted and shipped as soon as possible. The contractual exemption for 'incorrect out-turn' covered the excess quantity delivered.

Outcome

The judgment of the Supreme Court of Kenya awarding the respondent Sh. 24,117.25 was upheld

Facts

The appellant, a Mombasa piece goods dealer, commissioned the respondent confirming house in London to purchase textile goods from Manchester suppliers under an indent dated 13 February 1952 stipulating delivery in April 1952. The indent exempted the respondent from liability for delays in shipment or incorrect out-turn. The respondent placed an order for 48 pieces totalling 1,920 yards. An invoice dated 2 May 1952 showed delivery of 49 pieces totalling 1,973 yards. Due to severe shortage of shipping space causing delays of seven to twelve months, the respondent registered the goods for shipment and sought alternative routing. In August 1952, when the respondent notified the appellant of expected shipping space in September, the appellant purported to cancel the indent. The goods arrived in Mombasa in February or March 1953. The appellant refused to pay the sight draft or take delivery. Local market prices had fallen by approximately Sh. 2 per yard between June 1952 and the goods' arrival.

Issues

  1. Whether the respondent confirming house acted outside the scope of its authority or failed to exercise reasonable skill and diligence in accepting delivery of goods from suppliers when the goods were delivered in excess quantity (49 pieces totalling 1,973 yards instead of 48 pieces totalling 1,920 yards).
  2. Whether the respondent was protected from liability for the excess quantity by the contractual term exempting it from responsibility for 'incorrect out-turn'.
  3. Whether the respondent acted outside its authority by accepting delivery allegedly made two days late (2nd May instead of April).
  4. Whether the respondent had a duty to communicate with the appellant before accepting the late or excess delivery.

Orders

  • Appeal dismissed.
  • Costs of the appeal to the respondent.

Rules and key headnotes

Agency — Confirming House — Standard of Care and Diligence
A confirming house which purchases goods on its own account for an indentor acts in the capacity of agent for reward and must use the care, skill and diligence reasonably necessary for performance of its undertaking, assessed against the background of market and other relevant conditions existing at the time of its decisions.
Sale of Goods — Excess Quantity Delivered — Agent's Authority to Accept
Where goods delivered exceed the quantity ordered by a slight or negligible amount not constituting a proposal for a new contract, an agent with authority to accept delivery does not exceed its discretion or act outside the scope of its authority by accepting the consignment, having regard to market conditions and the principal's known commercial interests.
Sale of Goods — Incorrect Out-Turn — Contractual Exemption
A contractual clause exempting a confirming house from liability for 'incorrect out-turn' covers discrepancies in the quantity of goods turned out and delivered by suppliers, and is not confined to defects attributable solely to the manufacturing process as distinct from packing errors.
Agency — Duty to Communicate with Principal
An agent is not under a duty to communicate with its principal before accepting delivery of goods where a slight delay in delivery (two days) is of no practical or commercial significance, shipping delays of many months are inevitable, and it is reasonable to suppose acceptance serves the principal's best interests and accords with the agent's implied authority.
Sale of Goods — Time of Essence — Late Delivery by Suppliers to Confirming House
Where a confirming house has contracted with suppliers as principal and separately with indentors as agent, the confirming house's obligation is not to deliver goods as a seller but to exercise reasonable skill and diligence in placing the contract and obtaining delivery; technical delay of two days in delivery at the place of manufacture with no evidence that any shipping opportunity was thereby lost does not constitute a breach of the agent's duty.

Legislation cited (2)

  • Sale of Goods Act s.30(2)
  • Indian Evidence Act s.106

Cases cited (16)

  • Bhailal & Co Ltd v Lakhamshi & Co Ltd (Civil Appeal No. 25 of 1950)
  • Beal v. S. Devon Rail Co. (1864) 3 H & C 337
  • Benjamin v. Barnett (1903) 19 T.L.R. 564
  • Broom v. Hall (1859) 7 C.B. (N.S.) 503
  • Bowlby v. Bell 136 E.R. 114
  • Cunliffe v. Harrison (1851) 6 Ex. 903
  • Duncan v. Hill (1873) 8 Ex. 242
  • Ellis v. Pond (1898) 1 Q.B.D. 426
  • Hartley v. Hymans (1920) 3 K.B. 415
  • Johnson v. Kearley (1908) 2 K.B. 514
  • Mersey Steel & Iron Co. v. Naylor 9 A.C. 434
  • Pettman v. Keble (1850) 19 L.J. (N.S.) 325
  • Proudfoot v. Montefoiri (1867) 36 LJ. Q.B. (N.S.) 225
  • R. v. Kakelo (1923) 2 K.B. 793
  • Zuilchenbart and others v. Alexander and another (1861) 4 L.T.R. 412
  • Nune Sivayya and another v. Maddu Ranganayakulu 62 I.A. 89

Full judgment

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Uttamchand and Co. Ltd v Hawkes and Co. Ltd (Civil Appeal No. 45 of 1954) [1955] EACA 287 (1 January 1955)
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.