JUDGMENTBY: THOMSON CJ, HILL JA, GOOD JA

THOMSON CJ I have had the advantage of reading the judgment of Hill J.A. I agree with what he says and wish to add a few words only of my own.

On the evidence I do not think there is the slightest room for doubt that what the respondents agreed to sell and what the appellants agreed to buy was shovels the metal portion of which was of and bore the "Spatenmann" brand. What was supplied was shovels the metal portion of which was of another brand and there was thereby a breach of contract.

In the circumstances it was for the purchaser to make his election. He could repudiate the contract, refuse to accept delivery, and sue for damages, or he could accept delivery and sue for damages as for breach of warranty. He elected to follow the second of these courses.

The measure of damages in such a case is normally the difference, if any, between the market value of the goods supplied and the market value of the goods ordered, both values being taken as at the date of delivery. This is not because of anything contained in sub-section (3) of section 53 of the Sale of Goods Act, 1893, for there is no corresponding sub-section in section 59 of our Sale of Goods Ordinance. The law on the subject in this country is the general law relating to compensation for loss caused by breach of contract. That law is set out in section 74 of the Contracts (Malay States) Ordinance which is the same as section 73 of the Indian Contract Act, which was held by the Privy Council in the case of Jamal v Dawood 43 IA 6 to be merely declaratory of the English common law relating to damages.

The English rule is thus stated by Kelly C.B. in the case of Engell v Fitch (1868-9) LR 4 QB 659, 669:--

"The measure of damages is the difference between the contract price

and the value at the time when the contract was broken."

That case related to a contract for the sale of land. From such cases as Rodocanachi v Milburn 18 QBD 67 and Williams v Agius [1914] AC 510 it is clear that where the contract relates to goods for which there is a market the measure of damages is the difference between the contract price and the market price at the contracted date of delivery. From the case of Slater v Hovle [1920] 2 KB 11 it is clear that the purchaser is not entitled to compensation for loss of profit from a sub-contract for resale unless the sub-contract was known to the vendor at the time of the original contract, but the facts relating to such a sub-contract may pro tanto be looked at as evidence having a bearing on the question of market value (see Heskell v Continental Express Ltd [1950] 1 All ER 1033)

In the present case the subject matter was 100 dozen shovels and the contract price (which was paid) was $ 33.54 per dozen. Delivery took place about 28th October, 1959. Regarding the market price there was evidence that in July one of the plaintiffs customers in Kota Bharu was prepared to pay $ 37.50 a dozen. On 3rd November, 1959, the plaintiffs bought shovels in Singapore and the price they paid was $ 41.50, that is about $ 8 a dozen over the contract price. The plaintiffs are hardware dealers, their customer in Kota Bharu is a hardware dealer and so is the firm from whom they bought shovels in Singapore. In the absence of any suggestion of collusion it is reasonable to accept that these people know all about the market price of shovels and none of them is likely to have bought or sold such things at a price very different from the market price. On that evidence damages amounting to $ 400, that is at the rate of $ 4 a dozen, cannot be said to be unjustified by the evidence and indeed for myself I should have thought a considerably higher figure would have been justified.

I would allow the appeal with costs.

Before departing from the case I would, like Hill J.A. express my appreciation of the assistance I have derived from the very careful and well-reasoned judgment of the learned Magistrate.

HILL JA This app

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