Rae Sands V. Kadibhoy

Present: Lascelles C.J. and De Sampayo A.J.

RAE SANDS v. KADIBHOY.

69-D. C. Colombo, 31,050.

Sale, of rubber shares-Contract silent as to time for delivery of documents- Time for payment stipulated for-Sale, of Goods Ordinance- " Goods. "

In the case of a sale of shares, where the time for payment is stipulated for, but the contract is silent as to the time for delivery, the seller is bound to deliver forthwith or within a reasonable time before payment, unless his obligation is otherwise regulated by a binding usage or custom.

THE facts are fully set out in the judgment.

Bawa, K.C., for the defendant appellant.-No time was stipulated for the delivery of the scrip. In the state of the market at the time it was not possible to stipulate for delivery of the scrip at the time of payment. In the case of a contract to deliver, where no time is specified for delivery, a reasonable time will always be allowed for delivery (2 Nathan 535.) In considering what is reasonable time, regard must be had to the circumstances of the case. It would be impossible to lay down any hard and fast rule as to what constitutes unreasonable delay in the delivery of shares sold.

Even if the evidence does not prove a custom, it helps the Court to find out what is " reasonable time " in this case. Counsel cited Benjamin on Sales 683 {5th ed.), Union Corporation v. Carrington,1 Benjamin v. Barnett,2 De Waal v. Adlar," Field v. Lelean4.

Elliott (with him Hayley), for the respondent.-The case is governed by the Sale of Goods Ordinance of 1896. In the English Act the definition of the term " goods " specially excludes shares. In our Ordinance " goods " include all movables, except moneys. The ruling in Croos v. De Soysa5 does not apply to this case. Under section 27 of the Sale of Goods Ordinance the custom pleaded by the appellant has not been proved. Moreover, the alleged custom is unreasonable. It is unreasonable to expect a man to pay money and wait for months to get the scrip.

1 (1902-3) 8 C. C. 99.                                                                                     3 (1887) 12 A. C. 141.

2 (1903) 8 C. C. 244.                                                                                     4 (1861) 30 L. J. Exch. 168.

                                                                  5 (1903) 7 N. L. R. 32.

Bawa, K.C., in reply.-The case is governed by the Roman-Dutch law, and not by the Sale of Goods Ordinance. Section 27 applies to corporeal movables, and not to shares.

Cur. adv. vult.

May 14, 1912. Lascelles C.J.-

The facts which have given rise to this appeal are shortly as follows. On March 31, 1910, the plaintiff received from Mr. L. C: Davies, a broker, a bought note advising him that he had bought on his account 165 shares in the Rubber Plantations Investment Trust Company from the defendant at 65s. per share. The bought note provided that payment should be made in ten days from date, but was silent as to the time for delivery of documents. On April 2 the plaintiff re-sold the shares to Somerville & Co. On April 10, 1910, the plaintiff wrote the letter P 2 to Mr. Davies asking him to forward transfer and scrip for the shares, on which he, the plaintiff, would give at cheque in payment. On the following day the defendant wrote to Mr. Davies demanding payment for the shares. On the same day Mr. Davies communicated to the defendant the plaintiff's letter P 2 asking for the scrip. Mr. Davies then, on April 12, received from the defendant the letter P 5 asking him to send a cheque to Messrs. Keel & Waldock, who, the defendant stated, would hand over the transfer and scrip. The defendant added that if the amount was not paid that day the defendant would consider the contract cancelled.

This letter was shown to the plaintiff, who, on the same day, wrote to Messrs. Keel & Waldock offering to send a cheque in exchange for the scrip. Messrs. Keel & Waldock on the 13th r

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