Supreme Court
Action No. 1 of 1981
10th April, 1981.
Moe, J.

Mr. P. Zuniga for the Plaintiff
The Defendant in Person

Purported contract of sale for a pump - Plaintiff alleging he entered into oral contract with Defendant to sell pump to Defendant - Plaintiff's allegations not supported by evidence - Application for payment of alleged purchase price dismissed.

JUDGMENT

In this matter the plaintiff claimed $600.00 being the price of a pump which he sold and delivered to the defendant and which sum the defendant has failed to pay. The plaintiff's evidence was that on the 25th March last year, the defendant approached him about a pump asking whether he didn't want to sell, lend or hire him one. He told the defendant he would see if he has one at home. Lately that day he sent a message to the defendant that he had one and about 5 o'clock the defendant's son came for the pump. He deliver the pump to the son and told him he was selling it. He did not state a price.

2. According to the plaintiff, he met the defendant about one month after and all the defendant told him was that the pump wasn't working. He sent various messages to the defendant concerning the pump and about two months later, he himself went to the defendant' s house and asked him what happened to the pump. The defendant said he is not going to use it, he is going to carry it back. He the plaintiff said O.K.

3. Three weeks later (i.e. about July) he saw a pump under his mother's house. He took it to the defendant and asked him about it, telling him it was not the plaintiff's pump and that that pump did not have the parts it had when he delivered it to the defendant. Both the defendant and his son said it was the plaintiff's pump. The son said that only the pipe is missing. The defendant told the plaintiff to do what he want, he was not going to pay the plaintiff. So he went to the Sergeant of Police. He left the position like that for a long time.

4. Later on, the defendant called him and said he was going to pay him for the pump. He told him he wanted $600.00 for the pump. The defendant said that was too high. He wanted it for less. He contacted the defendant on further occasions and on the last occasion which was around September according to him the defendant did not say he wasn't going to pay $600.00. He said that on this last
occasion he sent a note by his son to the defendant who sent him $50.00 with a message that he should go for the pump. He sent back the $50.00.

5. The defendant in his evidence admits he contacted the plaintiff about a pump. The plaintiff found a pump and sent it to him. He and his son installed it and tried it. It didn't function. He tried to repair the pump but couldn't get it to work. He told this to the plaintiff who said nothing. He insists he never arranged to buy the pump and the plaintiff never charged him $600.00 for the pump. He however sent $50.00 to the plaintiff to give him something but the plaintiff sent it back. He denied that it was as long as three to four months after receipt of the pump that he returned it. He said the plaintiff knew the same week the pump wasn't working and he returned it during the same month he received it. He admits he still has the pipe to the pump. He only heard about $600.00 when he got a letter from the Attorney-at-Law Mr. Zuniga. He explained that he sent $50.00 because although the pump didn't work, he would have to give satisfaction for something.

6. It is clear that there was no agreement between the plaintiff and defendant with regard to the transaction between them when the pump was delivered to the defendant. It is convenient to decide first for what purpose the pump was delivered. As I understood it, the plaintiff was saying that the pump was delivered in pursuance of an agreement of sale to the defendant. I am unable to come to that conclusion. In the first place, the plaintiff's own evidence was that when he saw a pump under his mother's house, he complained that his pump was not returned. If that is so, that may give rise to a different cause of action. Indeed he the plaintiff went to the police on the basis that his pump was not returned and further he left the position like that for a long time. I accepted the defendant's version of what took place in March, as he put it to the Plaintiff in cross-examination and he elaborated in his evidence, that he received the pump as he told the plaintiff to try it and see if it will work and if he got it to work he will pay him for it. It was significant also that the plaintiff having had this put to him in cross-examination, he said in re-examination that he expected to see the defendant the day after he delivered the pump to make arrangement to see if he was going to pay for the pump or not.

7. I accordingly held that the plaintiff did not establish that there was a sale on or about March 1980 as pleaded in the Statement of Claim. I further determined that the plaintiff has not established that there was a sale at all. His account was that having left the matter for a long time after his complaint to the police, the defendant offered to pay for the pump and he has ever since asked $600.00 for it. I did not accept that the defendant would have gone to the plaintiff to offer to buy a pump, which he had tried, found not working, returned to the plaintiff and about which the plaintiff did nothing for a long time. Again I accepted the defendant's version that he offered $50.00 as some satisfaction and that he never agreed to pay $600.00 for the Pump. In the circumstances I held that the plaintiff has not established that there was ever a contract of sale by him to the defendant of the pump. It is not for me to de determine whether the defendant is liable to the plaintiff in some way. I determine only the claim before me and in view of my findings judgment is entered for the defendant. No order as to costs.

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