Messrs. Khalil & Anor V. George Mastronikolis (1949)

LawGlobal Hub Judgment Report – West African Court of Appeal

Sale of goods—Whether sale by sample—Sale of Goods Act, 1893, section 14,exceptions 1 and 2.

The facts, which formed the basis of the decision, are fully set out in the judgment.

Cases referred to :

1. Gardiner v. Gray, 171 E.R. 46.
2. Thornetl v. Beers (1919), 1 KO. 487; 88 L.J.K.B. 684; 120 L.T. 570.
3. Drummond v. Van Ingen (1887), 12 A.C. 284; 56 L.J.Q.B. 563; 57 L.T. 1; 3 T.L.R. 541.

Appeal from the Supreme Court of Nigeria.

David for Appellant (defendant below).

Kayode for Respondent (plaintiff below).

The following judgment was delivered:

Blackall, P. In this case there was a conflict of evidence on some material points, but the trial Judge accepted the evidence of the respondent and his brother, and we see no reason to differ from his findings of fact which were shortly as follows.

The respondent purchased a quantity of engine oil in three lots from the Commerce & Industries Department. He was approached by the appellant who said he wanted it and asked the price. He did not, however, inform the respondent of the purpose for which it was required. The respondent agreed to sell the oil at 2s. 6d. per gallon or 12s. 6d. per drum and told the appellant to examine it. Next day appellant went to respondent’s office while the drums were still in the course of arriving and repeated that he wanted the oil. Respondent’s brother then took three sample:;, one from each lot. The appellant selected one and said he would take the whole of that lot which amounted to about 5,000 gallons. Respondent’s brother asked the appellant to send a note of the transaction, and a day or two later appellant sent lorries to fetch the oil together with a brief note (Exhibit ” A “) requesting respondent to supply 900 drums of heavy engine oil.

It was at first argued by Mr. David for the appellant that Exhibit ” A ” was a complete contract in itself but when it was pointed out by the Court that it made no mention of price he conceded that the Court could look elsewhere for evidence on this point, though not any further. Mr. Kayode per contra submitted that Exhibit ” A ” was merely confirmatory of the oral contract already made. In our view this submission is sound.

In support of his argument for the appellant Mr. David cited the case of Gardiner v. Gray (1) in which it was held that, where a specimen of the goods is exhibited to the buyer, and there is a written contract which merely describes the goods as of a particular denomination—this is not a sale by sample, but there is an implied warranty that the goods shall be of a merchantable quality of the denomination mentioned in the contract. That case is, however, distinguishable from the present one in several respects. In the first place the quality of the ” waste silk ” supplied by Gray turned out to be much inferior to the sample, whereas there was no evidence that the oil supplied by the respondent differed from the sample inspected by the appellant. In the second place it was proved that the goods supplied by Gray were not saleable under the denomination of

” waste silk “. But there was no evidence that the oil supplied to the appellant was not saleable as engine oil; the appellant merely adduced evidence to show that it was unsuitable for use in internal combustion engines.

A case more in point is Thornett v. Beers (2) which concerned the sale of glue in barrels. After certain negotiations it was agreed that the parties should meet so that the purchasers could inspect the glue. The purchasers came and were given every^–facility for inspection but contented themselves with examining the outside of the barrels: in the words of Bray, J., ” they were willing to take the risk, the price being so low “. This, it seems to us, was the attitude of the appellant. He evidently thought he was getting a very good bargain so he did not take the trouble either to enquire from the respondent whether the oil was suitable for motor engines, or to take the sample with him and have it tested.

Mr. David also referred to the case of Drummond v. Van Ingen (3). In that case the cloth supplied was the same as the sample, but it lacked the requisite cohepion which made it unsuitable for the making of coats which, to the knowledge of the sellers, was the purpose for which it was required.- It was held that there was an implied warranty that the goods sold should be fit for use in the manner in which goods of the same quality and character would ordinarily be used. But, as already mentioned, in the present case the purpose for which the oil was required was not made known to the seller, and there was no evidence that the oil -supplied was unmerchantable for other purposes for which engine oil would ordinarily be used.

After consideration of the facts as found by the Court below and of the authoriies it appears to us :-

1. That this was not a sale by sample.
2. That the appellant did not either expressly or by implication make known to the respondent the particular purpose for which the oil was required, and consequently the case does not fall within exception (1) to section 14 of the Sale of Goods Act.
3. That it was not a sale by description, but in any event there was no evidence that the oil was not of. merchantable quality as engine oil, but merely that it was unsuitable for use in one particular type of engine. It cannot, therefore, be brought within exception (2) to section 14.

The appeal should, in our view, be dismissed.

Appeal dismissed.