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CROOS v. DE SOYSA
NLR7V32
CROOS v. DE SOYSA
D. C, Colombo, 15,873.
Sale of arrack farm-Agreement to sell-Ordinance No. 11 of 1896, &' 11-Movables-Tangible or corporeal things-Goods-Interpretation.
An agreement between A and B for the sale of the right to tell arrack within a defined' district and for a given period, which A had obtained from the Government as its " renter, " is good and valid although not in writing.
It is not a contract for the sale of " goods " within the meaning of section 4 of " The Sale of Goods Ordinance, 1896. "
The word " movables " as used in the definition for " goods" doer not include anything more ' than corporeal movables, and the term " goods " in section 59 of that Ordinance means all tangible movable property, except money and in certain cases crops and things attached to the soil.
THE defendant, who had bought from the Government the rent of the arrack farm of the town and district of Negombo for 1902 and 1903, agreed verbally to sell to the plaintiff the said rent. The plaintiff complained of a breach of this agreement by the defendant and claimed damages.
The defendant took the objection that the agreement was not enforceable by action, inasmuch as it was a contract for the sale of " goods," and there was no note or memorandum of it in writing as required by sub-section 1 of section 4 of Ordinance No. 11 of 1896.
The District Judge over-ruled this objection.
The defendant appealed.
Dornhorst , K.C., for defendant, appellant.-The subject-matter of the agreement not being immovable properly must necessarily fall into the class " movable property, " and the agreement therefore required to be in writing under the Sale of Goods Ordinance.
A chose in action was expressly excluded from what was compre- hended in the term " goods " used in the English Sale of Goods Act, and the District Judge was therefore wrong in applying to the present case the law as to choses in action under the English Act. The present case was governed by Ordinance No. 11 of 1896, and in it " goods " were said to include all " movables. " Sub-section 3 of section 21 of Ordinance No. 7 of 1840 was repealed by Ordinance No. 11 of 1896, and the Legislature intended to make provision by the new Ordinance in respect of what was included in the term "movable property" used in the old Ordinance.
Walter Pereira (with him Schneider), for plaintiff, respondent.- The English Law does not govern the case. Only certain rules of that law were, by section 58 of the Ordinance, made to apply to contracts for the sale of goods, but the present question had to be looked at in the light of the Common Law of the land. Things, under the Roman-Dutch Law, were corporeal or incorporeal (Gro-iius' Introduction, 2, 1, 10), and only corporeal things were either movable or immovable. Eights of action were incorporeal things which did not admit of division into the movable and immovable. Voet also divides things into corporeal and incorporeal (Com. ad Pand. 1, 8, 11), and says that the former are things which by their nature are capable of being handled; the latter which cannot be handled and consist in a right (jus), such as servitudes, inheritances, debts, &c. This is the primary division, although later on he illustrates how all things may be divided into movables and immovables, and inquires under which class each incorporeal thing is to be accounted. Looking at the provisions of the Sale of Goods Ordinance as to delivery of part of the goods sold, as to the manufacture by the seller of goods to be sold, as to the perishing of goods before sale, as to sales by sample and description, as to the risk in respect of goods sold, &c, it is clear that the Ordinance was intended to apply to tangible or corporeal things only.
Dornhorst, K.C., in reply.
Cur. adv. vult.
12th May, 1903. LAYARD, C.J.-
In this case the plaintiff sued the defendant for the recovery of dam
