1943 Present: Soertsz S.P.J. and Hearne J.

ALARIS, Appellant, and WIJEYSEKERE, Respondent.

380-D. C. Colombo, 9,158.

Broker-Purchaser of goods himself-Not an agent of seller to attach liability to the latter on a memorandum signed by the former-Contract contained in several documents-Proof of contract-Sale of goods for payment against delivery-Delivery by instalments-Failure to pay on delivery-Breach of contract.

Where a broker purchased goods for himself he cannot sign a note or memorandum even under an assumed name as agent of the seller in order to make the latter liable to be charged on a contract evidenced by such note or memorandum within the meaning of section 5 of the Sale of Goods Ordinance.

Where it is proposed to prove the existence of a contract by several documents it must appear upon the face of the instrument signed by the party to be charged that reference is made to another document and this omission cannot be supplied by verbal evidence. If, however it appears from the instrument itself, that another document is referred to, that document may be identified by verbal evidence.

Where a contract for the sale of goods provides for payment against delivery and the buyer accepts delivery by instalments but refuses to pay on delivery, the other party is discharged from his obligations under the contract.

APPEAL from a Judgment of the District Judge of Colombo.

The facts appear from the argument and the judgment.

H. V. Perera, K.C. (with him C. Thiagalingam and G. Thomas), for the defendant, appellant.-Under contract No. 599, the defendant was to supply to the plaintiff 2,000 ply-wood chests, 750 of which were to be delivered during May, 1937, and the remainder in June. Payment was to be made " against delivery". Plaintiff, the purchaser, now claims damages resulting from the non-delivery of 1,200 out of the 2,000 chests. It is submitted that there was a repudiation of the contract at the moment when the plaintiff refused to make payment for the 800 chests already delivered under the contract. It is true that the defendant had committed breach of contract by not delivering the instalments within the time provided for in the contract. But what happened was that the plaintiff accepted the belated deliveries and gave time for the delivery of the remaining chests. In the circumstances there was no breach of contract on the part of the defendant. See the cases cited in Leake on Contracts (8th ed.) p. 635. It was the plaintiff who was in default in not paying for the chests which were actually delivered. It is clear, not only from the terms of the contract but also from the correspondence produced in evidence, that payment was to be made " against delivery ". In consequence of the failure of the plaintiff to make payment for the chests which had already been delivered the defendant was entitled in law to be discharged from any obligation to supply the remainder of the chests. For the effect of the expression " Payment against delivery" see sections 31 and 28 of the Sale of Goods Ordinance (Cap. 70) and Halsbury's Laws of England (2nd ed.), Vol. 29, para. 168.

In regard to contract No. 800, we refused to supply the 1,000 chests which we undertook to sell under it in view of the attitude of the plaintiff in contract No. 599. Further, it cannot be enforced because it does not comply with the requirements of section 5 of the Sale of Goods Ordinance. The bought note P 2 referred to in the evidence does not constitute the necessary note or memorandum required under section 5. One of the parties to a contract cannot sign the name of the other as his agent so as to bind him ; the signature as agent must be by a third person. See Sharman v. Brandt et al [L. R. (1871) 6 Q. B. 720.].

W. S. de Saram for the plaintiff, respondent.-There was no provision in contract No. 599 for separate payments for each instalment. What was purchased was 2,000