Jayasena V. Colombo electric Tramways And Lighting Company Limited

1945 Present: Keuneman S.P.J. and Jayatileke J.

JAYASENA, Appellant, and COLOMBO ELECTRIC
TRAMWAYS AND LIGHTING COMPANY, LIMITED,
Respondent.

227-D. C. Colombo, 13,898.

Contract-Sale of chattel of a description which it is in the course of the seller's business to supply-The words " of a description "-Include the meaning " of a class or kind "-Test for sale of article under its trade name- Sale of Goods Ordinance (Cap. 70), s. 15 (1).

Section 15 (1) of the Sale of Goods Ordinance enacts: " Where the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required, so as to show that the buyer relies on the seller's skill or judgment, and the goods are of a. description which it is in the course of the seller's business to supply (whether he be the manufacturer or not), there is an implied condition that the goods shall be reasonably fit for such purpose, provided that in the case of a contract for the sale of a specified article under its patent or other trade name, there is no implied condition as to its fitness for any particular purpose. "

The defendant Company who were agents for an instrument called the Ediphone sold to the plaintiff an instrument known as Telediphone for the purpose of recording and reproducing the charges of the Judges, of the Supreme Court to Juries in the course of their criminal jurisdiction.

On the evidence it was established that the two instruments were of the same class or kind although the process for recording was different In the two cases.

Held, that for the purposes of section 15 (1) of the Sale of Goods Ordinance the words " of a description " include the meaning " of a class or kind. "

Held, further, that the test of an article having been sold under its trade name within the meaning of the proviso to section 15 (1) of the Sale of Goods Ordinance is: Did the buyer specify it under its trade name in such a way as to indicate that he is satisfied, rightly or wrongly, that it will answer his purpose, and that he is not relying on the skill or judgment of the seller, however great that skill or judgment may be?

APPEAL from a judgment of the District Judge of Colombo. The plaintiff claimed judgment for Rs. 4,670 with interest and costs in respect of an instrument called Telediphone which was sold to him by the defendant Company and which was found on experiment to be defective and unsuited for the purpose for which it was brought. The chief question in the case was whether there was an implied condition as to fitness, under section 15 (1) of the Sale of Goods Ordinance. The District Judge held that the defendant Company knew full well why the Telediphone was needed and the purpose it was intended to serve. He further held that it was clear that the buyer (plaintiff) relied on the seller's (defendant Company's) skill and judgment in the matter. He,

however, held that the Telediphone was not an instrument of a description. which it was in the course of the business of the defendant Company to supply and. on this point, dismissed plaintiff's action.

H. V. Perera, K.C. (with him M. M. Kumarakulasingham), for the plaintiff, appellant.-Plaintiff brought this action to recover the consideration paid by him to the defendant Company for an instrument known as the Telediphone which failed to fulfil the purpose for which it was purchased. The question is whether the sale was subject to an express warranty or, if not, to an implied warranty. Although the letter P1 containing the express warranty was not addressed to the plaintiff, yet, it is submitted, the seller adopted the guarantee given by the maker of the instrument and therefore became liable on the footing of an express warranty. In the alternative, the sale was subject to an implied warranty under section 15 (1) of the Sale of Goods Ordinance (Cap. 70). Admittedly the C

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