Katundu v Press Steel & Wire Limited (Civil Cause 522 of 1987) [1993] MWHC 2 (2 July 1993)

IN THE HIGH COURT OF MALAWIPRINCIPAL REGISTRYCIVIL CAUSE NO, 522 OF 1987BETWEEN: pastor WoW, katundu ......................... plaintiffandPRESS STEEL & WIRE LIMITED .................. DEFENDANTCORAM : BANDA, J. Ng’ombe, Counsel for the Plaintiff Saidi, Counsel for the Defendant Chigaru, Official Court Interpreter Maore, Court ReporterJUDGMENTThis is an action by the plaintiff against the defendant for damages for breach of contract. The plaintiff alleges that by a contract made partly in writing and partly orally the defendant sold and agreed to deliver to the plaintiff 40 x 16ft I. B. R. sheets of 24 gauge 11 x 22ft LB. R. sheets of 24 gauge and 10 x 6ft ridges. The plaintiff further alleges that all these sheets were sold at the agreed price of K1,618.01 and that it was agreed that delivery would be made in the month of November, 1986. The plaintiff alleges that in breach of the said contract the defendant wrongfully failed to deliver the said I. B. R. roofing sheets and that by reason of this breach the plaintiff has suffered loss and damage. The defendant admits owing the sum of K1,618.01 as a deposit for the quantities of sheets alleged in the plaintiff's statement of claim but denies that delivery was to be made in November, 1986. It is the defendants’ contention that as there was a general scarcity of materials to manufacture iron sheets it was understood by the parties that delivery of the iron sheets would take place as and when the iron sheets were available. It is further contended, in the alternative, by the defendants that if there was agreement to deliver by November, 1986 such agreement was frustrated by the scarcity of the materials to manufacture the iron sheets. The defendants have further contended that they have never refused to deliver the goods to the plaintiff and are still willing to deliver the same to the plaintiff2/...... - 2 -LIBRARYwhen the goods are available and provided the plaintiff is willing to pay the price ruling at the time of delivery. It seems to me to be crucial to discover, if at all, when a contract came into being between the parties. Great emphasis was placed on Exhibit 1 which the plaintiff has contended is a quotation which the defendant gave to the plaintiff. The defendants have vigorously denied making Exhibit 1 and have argued that it could not be their quotation as it is not on their headed paper nor is it signed by any of their officers. The defendants also contend that as Exhibit 1 contains addresses of other suppliers it could well have been made by other people. What then is the significance of Exhibit 1? In my judgment there is very little significance to be attached to Exhibit 1. It is my considered view that Exhibit 1 was given as a result of enquiries about the availability of I. B. R. sheets and their prices at the time. It gave prices of the type of sheets the plaintiff desired to buy. It is neither an offer to buy nor is it an acceptance to sell. It is for this reason that I would attach very little weight to it. Exhibit 1 only gave information as a result of enquiries the plaintiff made on prices of I. B. R. sheets. When then was the contract made between the plaintiff and the defendants? By Exhibit 2 the plaintiff informed the New Building Society to release KI,000 to the defendants as deposit towards the purchase price of I. B. R. sheets he was intending to buy from the defendants. That letter is dated 50th September, 1985 hut it is not clear when that sum of K1,000 was released to the defendants. However, according to the plaintiff the cheque for K1,000 was sent to the defendants in December, 1985. It was agreed that the last payment would be made 90 days after the first payment. It is clear, therefore, that on that basis the second and final payment of K618.01 was due at the end of March, 1986. It is agreed by both parties that delivery was to be made after final payment. I am satisfied and I find that when the defendants received the K1,000.00 from the New Building Society they had accepted the plaintiff’s offer to buy the I. B. R. sheets. The defendants do not deny that the cheque for K1,000 was sent to them, as deposit by the plaintiff, in December, 1985» It is in December, 1985, therefore, that a contract between the parties came into force. It was the plaintiff's case that he wanted the sheets as soon as he had finished paying for them. The obligation to deliver by the defendants only arose after the plaintiff had made his final payment for the sheets. It becomes vitally important to know when final payment was made. The plaintiff contended that delivery was delayed because the defendants had lost the cheque for* the balance. The plaintiff stated that theo c o o o cheque was lost by the defendants and that this was acknowledged to him by Mr. Avares who was General Manager at the time. Mr. Rajani for the defendants was in no position to dispute that contention as he was not the General Manager at the time. It is clear, however, that whether the cheque was lost by the defendants or the plaintiff there is evidence to show when the last payment was made. Exhibit 3 is a letter which sent a replacement cheque and it is dated 16th August, 1986. It is, curious to note however, that Exhibit 13 which is a letter re- s requesting the New Building Society to make final payment is dated 7th February, 1986.well before the 90 days had elapsed after the first payment. However, be that as it may, there can be no doubt that by August, 1986 the plaintiff had made the final payment. This is not disputed by the defendants and on that date the duty to deliver the sheets became live. The defendants have contended that it was not possible for them to deliver by November, 1986 because on that day they had no stocks from which they could make delivery to the plaintiff. It was also the defendants further contention that it was understood by the parties that delivery would only be made if and when the sheets were available. The onus to prove that there were no stocks available was on the defendants as this was an issue which was peculiarly in their knowledge. The defendants showed in Exhibit DI that there were no stocks in November, 1986. But the obligation to deliver arose in August, 1986 when they received final payment from the plaintiff. It was incumbent upon them to show that there were no stocks available in August, 1986. Mr. Rajani conceded that they received stocks of I. B. R. sheets in 1986 but only denied having them in stock in November, 1986. Mr. Rajani further stated that although they had received stocks in 1986 they supplied to their customers on first come first service basis. Mr. Rajani also stated that it was a custom in the Hardware trade that goods are delivered at ruling prices. The plaintiff stated that he was not told about the alleged custom and Mr. Rajani is not in a position to say whether this custom was brought to the attention of the plaintiff as Mr. Rajani was not present at the time theyplaintiff first made contact with the defendants. However, whether or not such a custom exists in the trade there can be no doubt that Exhibit 6 which is the defendants own letter and signed by their Company Secretary contradicts the alleged custom. Exhibit 6 states that the defendants were prepared to supply to the plaintiff 26 gauge I. B. R. sheets ’’from the next available consignment at the originally agreed prices”. Mr. Rajani stated the phrase "prices originally agreed” meant "prices ruling at the time of delivery”. While it is possible to interpret the two phrases in this manner if that is what was originally agreed it seems to me that4-/...... - 4 -Mr, Rajani is not competent to say that it was agreed that delivery of the sheets would be at "the prices ruling at the time of delivery". I have carefully considered the evidence before me including the respective contentions by counsel. I am satisfied and I find that by August, 1986 the plaintiff had fully paid for the sheets he had wanted to purchase from the defendants. I find that the agreement made between the parties was that the defendants would only deliver the sheets after the plaintiff had made final payment. This is abundantly clear from Mr. Rajani’s evidence that although the defendants had stocks available in February, 1986 they could not have delivered the sheets to the plaintiff because he had not made the final payment. The defendants were in breach of contract in August, 1986 when they failed to supply to the plaintiff the I. B. R. sheets which he had bought from them. I am satisfied that by reason of that breach the plaintiff has suffered damage and loss. He cannot now buy the same number of sheets at the price of £1,618.01 which he paid the defendants in 1986. According to Exhibit 12 the plaintiff would now have to spend a sum of K5»867,J1 to buy the same number of sheets as compared to K1,618.01. This means the plaintiff kill have to find a further sum of £4,249.30. The plaintiff has also claimed special damages in the sum of K20,000. He stated that it is an estimate of his loss arising from the defendants breach of contract. Special damages must be specifically proved. The plaintiff did not say how that loss had arisen. The plaintiff did not even know how much it would cost him to transport sand; he did not know how much it would cost him to obtain cement, I am satisfied that the plaintiff has not proved the £20,000 special damages claimed. A claim for specific performance has also been made in this case. The normal remedy for breach of contract is the recovery of damages at common law. Specific performance is an equittable remedy and the fundamental rule is that it will not be decreed if there is an adequate remedy atilaw. I am satisfied that damages would be adequate compensation in the present case and the claim for specific performance must fail. - 5 -I am satisfied that the plaintiff has proved, on a balance of probability, that the defendants were in breach of contract when they failed to deliver the goods. There will, therefore, be judgment for the plaintiff in the sum of K4,24-9.30 plus KI ,618.04 which the plaintiff originally paid to the defendants bringing the total of damages awarded to K5,867.34. The defendants are condemned in the costs of these proceedings. PRONOUNCED in open Court this 2?th day of June, 4989, at Blantyre. R. A. BANDA JUDGE