1931 Present : Maartensz A.J.

MULLER et al. v. FERNANDO.

52-C. R. Colombo, 54,900

Sale of goods-Action by brokers for breach of contract-Bought note-Note or memorandum in writing-Ordinance No. 11 of 1896, s. 4.

Plaintiffs, who are produce brokers sent their clerk with samples of rubber they had for sale with a bidding sheet to prospective buyers. The clerk entered in the sheet the prices offered by the buyers, including those of the defendant's attorney.

On the same day the plaintiffs posted the bought note to the defendant.

Held (in an action brought by the plaintiffs for breach of contract), that they could not rely on the bidding sheet or the bought note to constitute a note or memorandum within the meaning of section 4 of the Sale of Goods Ordinance.

APPEAL from a judgment of the Commissioner of Requests, Colombo.

N. Nadarajah, for defendant, appellant.

Gratiaen (with him Amarasekera), for plaintiffs, respondents.

September 30,1931. MAARTENSZ A.J.-

This was an action for the recovery of a sum of Rs. 223.70, the damages sustained by plaintiffs by reason of the defendant's failure to take delivery of and pay for certain lots of rubber which the plaintiffs alleged the defendant had contracted to buy from them.

The action was tried on several issues of law and fact. The defendant appeals from the learned Commissioner's finding in favour of the plaintiffs.

The learned Commissioner held on the issues of fact that the defendant on or about May 27, 1929, contracted to buy the lots of rubber in question from the plaintiffs unconditionally, and that the plaintiffs had suffered damages to the extent claimed.

I see no reason to dissent from the findings on the facts.

The appeal was strongly pressed on the issues of law. The issues are as follows: -

(4) Was there a memorandum of the alleged sale?

(5) If not, can plaintiffs maintain this action?

(8) Did the plaintiffs act as brokers or agents in this matter?

(9) If so, can they maintain this action?

(10) In any event can the plaintiffs maintain this action as they were agents for the sellers?

It was contended by the appellant that the bidding sheet P 1 and the letter P 11 from he defendant to the President of the Rubber Buyers' Association, which the learned Commissioner said, " may well be regarded as furnishing a memorandum of the contract to satisfy section 4 of the Sale of Goods Ordinance", did not constitute a memorandum in writing of the contract as P 11 did not set out the terms of the contract on which the plaintiffs were suing.

It was also contended that the Commissioner was wrong in holding that the sale was a sale by auction and that the plaintiffs were in the position of auctioneers and therefore entitled to maintain the action.

These contentions necessitate an examination of the circumstances in which the contract was made. They are as follows :-On May 27, 1929, the plaintiffs, who are produce brokers, sent their clerk Miranda with samples of the lots of rubber they had for sale with the bidding sheet P 1 to prospective buyers. Miranda entered in this sheet the prices offered by the buyers, including those of the defendant's attorney, S. B. Fernando; his .bids are shown in P 1 under the head " M. A." They were made at 2 or 2.30 P.M.

At 4.10 P.M. Miranda informed S. B. Fernando that his bids were accepted.

Miranda's evidence is that S. B. Fernando's bids were made unconditionally and that he did not repudiate the contract but said in a half-hearted hesitating manner that he would take the rubber. On the same day, he posted to Fernando the bought note P 3 which is as follows: -

" Dear Sir,

We beg to inform purchase made by us this day on your account of the following lots of rubber at the price named for each lot as under " (next follow details of the lots of rubber purchased) " as per samples handed buyers and delivered in good merchantable condition at our stores. Payment as