Gokaldas and Co. v Ghai and Sons (C.A. 53/1929.) [1929] EACA 124 (1 January 1929)

### APPELLATE CIVIL.

#### Before THOMAS, J.

# RUGNATH GOKALDAS & Co. (Appellants) (Original Defendants)

### $\cdot$ v. M. R. GHAI & SONS

## (Respondents) (Original Plaintiffs) C. A. $53/1929$ .

#### Contract for sale of goods-agreement between parties at a distance.

Held: - That there is no distinction between an offer made by letter and one made by telegram. There does not appear to be any duty<br>on a person making an offer to date his communication and if he neglect to do so the party accepting cannot derive any benefit from such neglect.

Schwartze for appellants.

Dayly for respondents.

JUDGMENT.—This appeal involves a question of considerable importance and interest.

The facts are shortly as follows: - On the 12th of February, 1929, Messrs. M. R. Ghai and Sons (the original plaintiffs and now the respondents), sent a telegram to Messrs. Rugnath Gokaldas and Co (the original defendants and now the appellants), which ran as follows:-" Wire rate 50 tons good native maize immediate delivery." To that telegram the defendants replied by a telegram as follows: -" Maize native 20 tons ready rate 13/50 reply to-day." That telegram was sent on the 14th of February, 1929, at 10.50 a.m. The defendants at the time they sent it were informed by the Post Office Authorities that there would be some delay on account of line interruption. This telegram was in fact delivered to the plaintiffs on the 15th of February, 1929.

The offer was accepted by telegram on the 15th and on the 17th the defendants replied by telegram as follows:—" Received wire late maize 20 tons ready rate 14 reply immediately to-day."

The Magistrate decided "that it should have been evident to the defendants when they were warned of the delay in the transmission of the wire of the 14th that their telegram might not be received by the plaintiffs on that day and that the word to-day would signify to-day on which the wire was actually received."

"The defendants should accordingly have covered themselves by adding after the word 'to-day' the words 'the 14th'."

"The defendants failed to take the elementary precaution and must accordingly be the sufferers."

The Magistrate then found that a contract had been entered into and gave Judgment for the Plaintiffs. From that decision the defendants appeal.

No date having been inserted in the message, apart from the offer having been made by telegram with which I will deal later, the first quetsion to be considered is whether the time runs from the date of the offer being made or from the date of its being communicated to the other party.

Now in the case of Morrell v. Studd and Millington, 1913, 2, Chancery, p. 648, an offer to purchase the plaintiff's premises was made by a letter which was dated September, 1912. That offer was signed on the 20th of September and sent to a firm of house agents who receiving it the same day forwarded it to the plaintiff who in turn received it on the 21st or 23rd of September. The offer gave on month for acceptance. It was contended that the month was intended to run from the actual receipt by the plaintiff and ASTBURY, J., dealing with that contention remarked: "I do not read the offer in that way." There is no distinction between an offer made by letter and one made by telegram. There does not appear to be any duty on a person making an offer to date his communication and if he neglect to do so the party accepting cannot derive any benefit from such neglect the obvious reason being that the party accepting should assure himself as to the date in the first instance.

The only date given to the respondents in this case was that of the date stamp of delivering office. That stamp obviously has nothing to do with the offer. If such a stamp dated an offer made by telegram an offer might through some error in the office be kept open for an indefinite period.

Generally speaking the Post Office Authorities date telegrams when handed in. No fee is paid especially for this service; possibly it is included in the charge for the telegram. Senders of telegrams may place reliance on the date being inserted although it would seem that the Post Office at Kisumu is superior to such trifles. But receivers of telegrams who find that the date has been omitted by the Post Office Authorities may make the necessary enquiries at the Post Office at their end. Omission to do so might well be considered as a failure to take an elementary precaution. For the senders have reason to believe that the telegram has been dated whilst the receivers know that it has not.

The appellants when sending the telegram were informed that there would be a delay in the transmission; but there was nothing to indicate that that delay would prevent the telegram from being' delivered the same day that it was handed in or that delivery would be delayed for nearly a whole day.

For the reasons above set out the appeal must be allowed, the Judgment entered for the respondents must be set aside and Judgment must be entered for the appellants (defendants). The appellants to have the costs of this appeal and of the original trial.

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