1934 Present: Macdonell C J. and Garvin S.P.J.

ASSEN CUTTY v. BROOKE BOND LTD.

67-D. C. Colombo, 41,436.

    Sale of goods-Delivery to buyer-Act of buyer inconsistent with ownership of seller-Whether acceptance may be presumed-Rejection of goods by buyer-Detention of goods by buyer after rejection-Damages for wrongful conversion-Breach of condition-Damages for warranty-Action on unwritten contract-Prescription-Recovery of money paid-Voluntary payment-Ordinance No. 22 of 1871, ss. 8 and 9.

A purchaser of goods is entitled during a period reasonably sufficient for examination to elect whether he will accept or reject them.

Any act of the buyer inconsistent with the ownership of the seller from which acceptance may be presumed must be done before the election has been determined.

Where the election has been determined by rejection the buyer becomes a bailee of the goods, and where during the existence of such a relationship the buyer detains the goods, the remedy of the seller lies in an action for damages. Where the buyer has accepted the goods, the breach of a condition to be fulfilled by the seller can only be treated as a breach of warranty for which damages may be claimed but not as a ground for rejecting the goods and repudiating the contract.

A claim for damages for breach of warranty of goods delivered upon an unwritten contract of sale is not an action " for or in respect of goods sold and delivered" within the meaning of section 9 of the Prescription Ordinance, No. 22 of 1871, and is not barred until after the lapse of three years after the cause of action shall have arisen.

Where a person with knowledge of facts pays money which he is not in law bound to pay and in circumstances showing that he is paying it voluntarily he is not entitled to recover it.

    THIS was an action arising from three contracts, P 1, P 2, and P 5, for the sale and purchase of tea dated September 13, September 18, and September 25, 1930, respectively, in terms of which plaintiff sold and delivered certain quantities of tea to the defendant. The plaintiff's claim related to contracts P 1 and P 5, while the defendant's claim in reconvention was based on contract P 2.

In respect of contract P 5 the plaintiff pleaded that he had delivered to the defendant 5,140 lb. of tea and became entitled to the sum of Rs. 1,174.77 which the defendant failed and neglected to pay. With respect to P 1 the plaintiff pleaded that he had delivered the tea and received the sum of Rs. 874.69, but that later the defendant compelled him by coercion and threat to pay the defendant the said sum of Rs. 874.69 on the ground that the tea supplied was not sufficiently good.

The defence to the claim based on contract P 5 was that the tea supplied was found not to correspond with the sample and was rejected. As regards plaintiff's claim to be paid the sum of Rs. 874.69 alleged to have been obtained from him by coercion and threat, the defendant alleged that, about a week after the delivery on the-contract P4-had been made, it was discovered that the tea was not equal to sample and that on its rejection the plaintiff voluntarily repaid the value. In reconvention the

defendant alleged that the tea delivered on P2 was found on examination not to correspond to sample, that he had rejected the same and that the plaintiff was liable to repay the sum of Rs. 675.

The learned District Judge awarded plaintiff a sum of Rs. 1,311.69 and costs and dismissed the defendant's claim in reconvention.

Hayley, K. C. (with him Gratiaen), for defendant, appellants.-The sale on all three contracts was by sample. The tea delivered under contract P5 was very much below sample and the appellants were justified in rejecting it. (Section 15, Sale of Goods Ordinance, No. 11 of 1896.) Further, when the rejection of the tea was communicated to the respondent's agent he acquiesced by asking the appellants to give b