Present: Bertram C.J. and Loos A.J. 1919.

MOHAMED EZAK v. MARIKAR.

275-D. C. Colombo, 51,991.

Contract for sale of goods-Enforcement of the contract-Memorandum- Essentials of the contract-Part payment by cheque-Sale of Goods Ordinance, s. 4 (1).

A letter written subsequent to the conclusion of a contract of sale by a party is sufficient to enforce the contract against him if all the ingredients of the bargain agreed - upon by the parties are embodied therein.

Where the letter did not specify the place of delivery, though it was one of the actual terms of the contract, it was held that there was not a memorandum to satisfy the requirements of section 4 of the Sale of Goods Ordinance.

It is not open to a party to rely on letters as constituting the memorandum and to perudiate one of the terms which the memorandum so constituted contains.

Where a cheque is tendered in part payment and is accepted in part payment, it is a part payment within the meaning of section i (1) of Sale of Goods Ordinance, though it be dishonoured later.

THE facts appear from the judgment.

Hayley, for the defendant, appellant.-There is no contract between the plaintiff and the defendant, as none of the provisions of section 4 (1) of the Sale of Goods Ordinance, No. 11 of 1896, has been complied with. There has not been an acceptance of any part of the goods or any note or memorandum signed by the defendant, or payment of any part of the price. A cheque was given on " Sunday, but the payment of it was stopped on Monday. Thus, it is not part payment as contemplated by the section. Davis v. Phillipe, Mills & Co.1 A cheque which is dishonoured later is not payment. Pape v. Westacoth.2 " Payment at a cheque is only a conditional payment, and when the cheque is honoured, that operates as a payment from the date of the giving of the cheque." Meyappa Chetty v. Weerasoriya,3 Hadley v. Hadley.4 In this case the cheque was not honoured, and cannot therefore be considered as part payment.

E. W. Perera, for the plaintiff, respondent.-There is a memorandum in this case sufficient to satisfy the requirements of section 4 (1). All the essential terms of the contract are fully set out in the letter sent by the defendant's proctor. Such a memorandum

Foot notes

1 [1907) 24 T. L. R. 4.    3 (1916) 19 N. L. R. 79.
2 11894) 1 Q. B. 272.    4 {1898) L. R. 2 Ch. 680.

would be sufficient. Hoyle v. Hoyle; 1 25 Hals. 135. The memorandum need not be made at the time the contract is entered into. It may be at a subsequent date.

In this case the parties did not consider the place of delivery essential. It was not mentioned at the time of entering into the contract. Thus, section 28 of the Ordinance would apply, and the place of delivery would be the seller's place of business.

" The object of the statute is that where there was no contract in writing, there must be some overt act to render the bargain binding." Kibble v. Gough.2 In this case the giving of the cheque would be an overt act contemplated by the statute. When a cheque is tendered as part payment and is accepted as such, it would satisfy the requisites of the section. Parker v. Crisp & Co; 3 Davis v. Phillips, Mills & Co. 4

Hayley, in reply.-Every essential of the contract must appear in the memorandum. Benjamin on Sales, 5th ed., p. 247; McLean v. Nicoll; 5 Ancher v. Baynes.6 In this case place of delivery is essential, as it affects the price where there had been an actual agreement as to the price, the paper which did not contain that part of the bargain was held insufficient. Acebel v. Levy;7 Benjamin on Sales, 5th ed., p. 263. If the parties considered a term material and decide on it, it must be stated in the memorandum.

[BERTRAM C.J.-Where a cheque is tendered as payment and is accepted as payment, it would satisfy the requirements of the section.]

Only if it is honoured on presentment. A cheque dishonoured is not payment.

The