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WALAKDAS et al. v. SUPPRAMANIAM CHETTY
NLR20V23
Present : De Sampayo J.
WALAKDAS et al. v. SUPPRAMANIAM CHETTY.
92-C. R. Colombo, 54,825.
Sale of goods-Acceptance of part of the goods-No writing-Action by buyer for
damages against seller for non-delivery of the balance.
The contract of sale which is rendered binding by the acceptance of part of the
goods by the buyer is the whole contract, and not the contract as against the
buyer only ; and, therefore, even in the absence of a writing embodying the
terms of the contract, a buyer who has accepted part of the goods may maintain
an action for damages against the seller for non-delivery of the balance.
THE facts are set out in the judgment.
Balasingham, for defendant, appellant.-The acceptance of a portion of the goods
constitutes an enforceable contract of sale. It has the same force as payment of
the price or a memorandum. It binds both parties to the contract. The defendant,
therefore, is entitled to enforce the contract of sale as against the plaintiff
for not having delivered 80 bags according to the contract. Counsel cited
Halsbury, vol. 25, p. 129 et seq. ; Benjamin on Sales 151.
Arulanandan, for plaintiffs, respondents.-The acceptance of the goods cannot
bind the seller. Even in the case of a memorandum, it should be signed by the
party to be charged.
Cur. adv. vult.
April 20, 1917. DE SAMPAYO J-
The plaintiffs sued the defendant for the value of 20 bags of poonac sold and
delivered by them to the defendant. The defendant admitted that the amount
claimed was due to the plaintiffs, but pleaded that the plaintiffs had
contracted to sell 100 bags of poonac, of which the plaintiffs delivered to him
only the said 20 bags, and he made a claim in reconvention for damages for
breach of contract in respect of the remaining 80 bags. The Commissioner
disallowed the defendant's claim in reconvention, on the ground that as
admittedly the contract was not in writing the defendant could not in law seek
to enforce it. I think this view of the law is erroneous.
Section 4 (1) of the Ordinance No. 11 of 1896, which governs this matter, is as
follows: " A contract for the sale of any goods shall not be enforceable by
action unless the buyer shall accept part of
the goods so sold and actually receive the same, or pay the price or
a Part thereof, or unless some note or memorandum of the contract . behalf. "
At first sight there is something in the suggestion on behalf of
the plaintiffs that the contract formed by means of acceptance
of part of the goods has regard only to a case where the buyer is sued, and not
where the buyer sues on the contract. But I think that the section intends that
such acceptance shall bind both the parties with regard to the whole contract.
Delivery and acceptance are reciprocal acts, and there is no reason why the
contract thereby induced should not bind both parties. Acceptance-of part of the
goods is put on the same effective footing as payment of part of the price, and
in the latter case there will be no question that the buyer can enforce the
contract by action. Section 4 (1) of the Ordinance is taken from section 4 (1)
of the English Sale of Goods Act, which itself is based on section 17 of the
Statute of Frauds. The. English section, however, contains words which appear to
me to throw additional light on the meaning of the provision. For under it the
contract is enforceable, if the buyer "' give something in earnest to bind the
contract, " or, as the Statute of Frauds has it, " to bind the bargain. "
Similarly, the performance of any of the other acts mentioned in the first part
of the section binds the contract in the same way. The effect of acceptance of
part of the goods, as also of payment of the price or part thereof, is to.
establish the existence of an enforceable contract of sale between the parties (Tomkinson
v. Staight1[1 (1858) I7 C. B. 997.]), and, as was said by Cotton L.
J. in Kibble v. Gough,2[
