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FRADD v. BROWN & Co. LTD.
NLR18V302
1915. Present
: Wood Renton C.J. and Shaw J.
FRADD v. BROWN & CO., LTD.
41-D. C. Colombo. 35,186
Sale of goods-Warranty-Condition-Contract in writing-Verbal
warranty-Evidence-Findings of fact based on credibility of witnesses-When Appeal
Court may interfere.
An affirmation made by a vendor of goods at the time of sale is a warranty only
if it appears, on evidence, to be so intended.
" It has frequently been pointed oat that when the question turns on the manner
and demeanour of witnesses the Appellate Court should generally be guided by the
impression made on the Judge who saw the witnesses; but there may obviously be
other circumstances quite apart from manner and demeanour which may show whether
a statement is credible or not, and those circumstances may warrant the Court in
differing from the Judge, even on a question of fact turning on the credibility
of witnesses whom the Court has not seen. Clearly also there may be cases in
which it is apparent that the Judge has misapprehended the facts in evidence
before him and in which he has failed to notice, or give doe weight to, other
facts in evidence before him which tend to support or contradict the verbal
evidence. "
THE
plaintiffs, Messrs. Brown & Co., Limited, sued
the respondent, Mr. Percy M.
Fradd, for the recovery of a sum of Rs. 6,382.56, the balance alleged to be due
on an account for goods sold and delivered and work done between September,
1911, and June, 1912, and including a sum of Rs. 4,252.05, the price of a 28
brake horse power Hornaby oil engine. The defendant, although he originally
denied the correctness of the amount claimed by the plaintiffs, ultimately
admitted it, except as to a sum of Rs. 196.23 in respect of work and labour
dose. He disputed this item on the ground that the work had been rendered
necessary by defects in the Hornaby oil engine which the plaintiffs had supplied
to him.
The main defence, however, to the action consisted in a claim in reconvention.
This claim is embodied in paragraph 6 of the answer:-
For a further answer the defendant states that in the month of September, 1911,
being in seed of an engine for his desiccating and fibre machinery, he stated
his requirements to the plaintiffs, vis., to work four pain of fibre drams, one
winnower, one disintegrator, and two desiccators, and was assured by the
plaintiffs that a 28 horse power Hornsby oil engine, which the plaintiffs said
they could supply at a cost of Rs. 4,252.10, would meet the defendant's
requirements as aforesaid. Acting on the assurance so given by the plaintiffs,
the defendant purchased from the plaintiffs an engine, which the plaintiffs
represented to be one of 28 horse power with balk oil and 24 horse power with
liquid fuel, and which the plaintiffs said was sufficiently powerful for the
defendant's needs as aforesaid. The said engine was delivered to the defendant,
and the price of it appears in the Raid account A under date September 36, 1911.
The defendant subsequently found that the said engine could not develop more
than 15 horse power with liquid fuel, and that it was not sufficiently powerful
for the defendant's requirements as aforesaid.
The defendant alleged that in consequence of the circumstances stated in the
above paragraph he had suffered loss of profits to the extent of Rs. 8,400; that
the value of the engine was only Rs. 2,832.50; and that, after deduction of his
own admitted indebtedness to the plaintiffs, the latter owed him Rs. 7,565.67,
which he claimed as damages. The learned Acting Additional District Judge
dismissed the plaintiffs' action and gave judgment for the defendant for the sum
of Rs. 1,855.54, the difference between the sum of Rs. 4,912.56 which he found
to be due to the plaintiffs and the sum of Rs. 6,768.10 which he awarded to the
defendant as damages. The plaintiff appealed.
Elliott and E. W, Jayewardene, for plaintiff, appellant.
Bawa, K.C
