Present: Fisher C.J. and Akbar J.

HETTIARATCHI v. TERUNNANSE.

359-D. C. Kurunegala, 12,907.

Sale of goods-Contract for transfer of car-Payment of value within one month-Breach of agreement-Cause of action-Ordinance No. 11 of 1896, s. 18, rule 4.

An agreement for the sale of a car provided for the payment of its value within one month, when the seller undertook to transfer his interest in the car. On failure thereof, the purchaser agreed to return the car, paying a penalty.

Held, that the property in the car did not pass to the purchaser, unless the price was paid within the month and the transfer taken.

Where the seller sued for the recovery of the value of the car on the assumption that there had been a completed contract of sale,-

Held, that the. plaintiff's cause of action was a ,breach of contract.

APPEAL from a judgment of the District Judge of Kurunegala.

De Zoysa, K.C. (with Ameresekera). for defendant, appellant.

H. V. Perera (with Abeysekera), for plaintiff, respondent.

March 4, 1930. FISHER C.J.-

In this case the learned District Judge gave judgment for the plaintiff for Rs. 2,000, being the price of a motor car alleged to have been sold to the defendant, and the question is whether there was a

sale, having regard to the terms of the agreement dated August 15 1927. That agreement is in the following terms: -

" On August 15, 1927, at Kurunegala.

" I the undersigned B, Dewamitta Terunnanse Incumbent of Botota Vihare do hereby remove the Chevrolet car bearing No. D1110 belonging to Mr. D. J. Hettiaratchi, Headmaster of the Buddhist Mixed School in Kurunegala, agreeing to pay therefor the sum of rupees two thousand (Rs. 2,000) as its full value within one month, and if it is found impossible to pay the said sum of money within one month the said car will be returned together with a sum of rupees five hundred (Rs. 500) as a penalty. That during the said term if any damage was caused to the said car the full value thereof be paid to the said Mr. D. J. Hettiaratchi. It is hereby agreed that immediately after the full value -has been paid within one month, the said D. J. Hettiaratchi shall transfer all his interest in the said car to me . . . . "

The agreement therefore (a) entitled the defendant to remove the car; (b) gave him the right to purchase the car for the sum of Rs. 2,000 within one month; (c) imposed an obligation on him to return the car if he did not pay the Rs. 2,000 within one month together with a sum of Rs. 500 " as a penalty." Whether this is to be regarded as a penalty, in the sense which makes such sums irrecoverable, or the payment of a sum in consideration of having been allowed to use the car for one month may be open to question, but having regard to the course we propose to adopt in this case , it is unnecessary at this stage to express an opinion on the point; {d) made the defendant liable for any damages which may have been caused to the car during the period of one month; (e) provided that if the defendant pays the full purchase money within one month the plaintiff " would transfer all his interest in the said car " to the defendant. It seems to me clear, in view of the last mentioned provision, that the property in the car was not to pass unless the defendant duly exercised his option to purchase within one month. It was urged by Counsel for the respondent that rule 4 (b) of section 18 of the Sale of Goods Ordinance, 1896, covered the case. The operation of section 18 depends on the initial words " Unless a different intention appears "; when this is not the case the " rules for ascertaining the intention of the parties as to the time at which the property in the goods' is to pass to the buyer '' thereafter set out are to be applied. Under the agreement in question the time at which the property was to pass is clearly laid down and the contingency on which it was to pass never arose. A " different intent