Supreme Court
Action No. 142 of 1979
21st November, 1980.
Barrington - Jones, J.

Mr. G. Godfrey and Mr. N. Dujon for the Plaintiff.
E.W. Francis, Esq., Q. C. for the Defendant.

Sale of Goods Ordinance - Meaning of sections 15
and 16 thereof - Sale of goods by description -
Implied warranty that goods sold correspond with
description given by buyer - Effect where goods do
not correspond with description given.

J U D G M E N T

On the 21st March, 1979 the Plaintiff purchased a crankshaft from the Defendant Company and it is common ground that the Plaintiff was supplied with a crankshaft for a naturally aspirated engine. It is the Plaintiff's case that he specifically requested a crankshaft suitable for a turbo charged engine, and that he was not supplied with the article that he had specifically requested. It was the Plaintiff's evidence that he had on a date prior to the 21st March, 1979 made inquiry by telephone of the Defendant Company and had spoken to Mr. Emilio Awe and had asked if they had in stock a '360' crankshaft for a turbo charged engine. He says that Awe confirmed that they had one, and the Plaintiff said he asked that it be kept for him. He said that he then went to the Company's office on the 21st March, 1979 in company with one Hector Sabido where he then asked Mr. Awe for the '360' turbo charged crankshaft that he had mentioned on the telephone previously. He said that Awe then went to the Kardex and came back and told him the price was B$1,668.51; and he later picked up the crankshaft from the Defendant Company's store.

Mr. Sabido gave evidence confirming that he had gone with the Plaintiff to the Defendant Company on the 21st March, 1979. He says that he heard the Plaintiff ask Awe for a crankshaft for a "360' turbo charged engine. He said that Awe went to the back and returned and said that they had it, and that it was over the warehouse. It was put to Sabido in cross-examination that he had not heard anything about a '360' turbo charged engine and he replied, "I heard it definitely".

For the Defendant Company Mr. Murphy, the Supervisor of the Ford Agency, stated that the Agency does not stock spare parts for turbo charged '360' or '380' engines, neither do they stock turbo charged engines, and he averred that the Agency had never stocked parts for turbo charged engines. Mr. Murphy after examining the Delivery Note exhibited in Court said that the crankshaft supplied would fit a '360' naturally aspirated engine, but could not say whether it would fit into a '380' naturally aspirated engine. He said that he later received a complaint from the Plaintiff and made a check and ascertained that the crankshaft supplied was of the type that he Plaintiff had requested. Mr. Murphy admitted in cross- examination that a customer would not know what the Defendant Company had in stock, and that he would rely on the Clerk for this information. Mr. Murphy said that the crankshaft supplied was for '360' naturally aspirated engine. In conclusion Mr. Murphy told me that much would depend on the competence of a person purchasing such a thing as a crankshaft.

Mr. Emilio Awe, whom it is accepted was the Clerk who attended the Plaintiff in regard to the purchase of the crankshaft, also gave evidence although it appears that he had left the Defendant Company in the middle of 1979 after the Plaintiff had made his purchase. This witness in identifying the Delivery Note exhibited in Court dated the 21st March, 1979 recognised his initials on the right hand side of the Note. He admitted that he had sold the crankshaft to the Plaintiff on that date and said that he knew it was the last crankshaft in stock. Rather surprisingly Mr. Awe said that whilst he was employed at the Agency he did not know that parts for turbo charged engines were not stocked, and said he thought at one time there were some air filters for turbo charged engines. But more importantly this witness said that whilst he recalled the Plaintiff speaking to him about the crankshaft he did not really remember what the Plaintiff had said and did not recall any previous telephone call; but remembered the incident at the Agency and of taking the Plaintiff over to the Agency's Store where he showed the crankshaft to the Plaintiff whom he said just looked at it.

Mr. Awe remembered the Plaintiff returning some time later complaining that the witness had sold him the wrong crankshaft and the witness said that he had advised the Plaintiff to see Mr. Murphy or Mr. Duncan and he said he saw him go upstairs at the Defendant Company's premises.

In cross-examination Mr. Awe said that he could not say if the Plaintiff asked for a turbo charged crankshaft, indeed he said that he could not now say what the Plaintiff had asked for. The witness said that he did not think to check this particular crankshaft with any other member of the staff. Mr. Awe admitted that the staff of the Defendant Company check the part numbers, and agreed with Mr. Godfrey that customers rely on the servants of the Defendant Company to supply the correct part. Mr. Awe said that he remembered checking the Kardex to make sure that a crankshaft was in stock but he could not remember whether he had checked with anyone else. He admitted returning to the Plaintiff after he had checked the Kardex and telling him that they had the part. Mr. Awe admitted that his experience did not extend to telling the difference between a turbo charged crankshaft and a naturally aspirated crankshaft. Finally Mr. Awe agreed with Mr. Godfrey that it was possible that the Plaintiff had telephoned him on the 20th March, 1979.

The Defendant Company also called Mr. Michael Gomez who said he was a Clerk in the Agency Division of the Defendant Company, and that he remembered the Plaintiff coming to the Agency on the 21st March, 1979 concerning a crankshaft, but he said that he could not remember if the Plaintiff was accompanied by anyone else. Mr. Gomez said that he did not speak to the Plaintiff and was some distance away when Mr. Awe spoke to him; but that as a result they had both gone to the Kardex to check whether they had a crankshaft in stock for a Ford `360` engine. He said that they found that there was one in stock, and that then Awe had returned to attend the Plaintiff. Mr. Gomez said that he did not recall the part number of the crankshaft they looked up in the Kardex.

Mr. Gomez said that if he was asked for a crankshaft for a `360` engine he would look for one to suit and he asked to refer to the Ford Parts Book. Upon referring to this Book (which he said was in use in 1979 and had not been subsequently amended) he referred to page 41 Section 7 and gave the number 713F-6303-CAA for a crankshaft for a `360`engine (which is the number recited in the Plaintiff`s Statement of Claim). He said that there were two types of `360`engine, one turbo charged and the other non turbo charged. He said that the Agency did not stock turbo charged engine parts.

In cross-examination Mr. Gomez said that they had never stocked turbo charged engine parts but he did admit that he remembered air filters for turbo charged engines being in stock. Mr. Gomez further agreed that the part number that he had quoted to the Court was for a naturally aspirated engine; but said that he would not know if this could be termed a replacement (substitute) part. He further said that he did not know if the part was made specifically for a '360'or a '380' engine. Mr. Gomez further agreed that there is a crankshaft manufactured exclusively for the '360' turbo charged engine. Mr. Gomez also agreed that if a person asked for a turbo charged crankshaft he would not mean the part with the number that he had quoted from the Parts Book.

Mr. Gomez concluded by saying that different bearings were recommended for use is a turbo charged engine when using a naturally aspirated crankshaft.

It will be seen that I have dealt in some detail with the evidence of those who were personally involved in the purchase of the crankshaft by the Plaintiff, and whilst there were a number of other witnesses both for the Plaintiff and the

The Plaintiff in his Writ claims:

So that I think that I must consider as a preliminary point what it was precisely that the Plaintiff requested, it being quite apparent what he received.

In tackling this preliminary point I remind myself that the Plaintiff and his witness Sabido were adamant that the Plaintiff requested the Defendant Company`s servant Awe for a crankshaft for a '360' turbo charged engine. On the other hand the Defendant Company`s then servant Awe, who was the only employee who dealt with the Plaintiff on the 21st March, 1979, can only recall that the Plaintiff asked him about a crankshaft but could remember what the Plaintiff had actually said. That taken alone might not be fatal but I must keep in mind that Mr. Awe also said that whilst employed at the Agency he did not know that parts for turbo charged engines were not stocked; and it was he who recalled that there were some air filters for turbo charged engines stocked at some time; a factor which was later confirmed in the evidence of Mr. Gomez.

It is in the light of careful consideration of this evidence that I have come to the conclusion that the Plaintiff did in fact ask on the 21st March, 1979 for a crankshaft for a '360'turbo charged engine.

It is thus apparent that the Plaintiff did not receive what he requested, for what he actually received and purchased was a crankshaft for a '360' naturally aspirated engine.

It is recited in the Plaintiff's Statement of Claim that the contract was a contract of the sale of the said goods by description. And continues……………

"In the premises, it was an implied condition of the said contract, or alternatively the defendants thereby warranted that the goods should correspond with the said description and should be merchantable under the said description."

Further in paragraph 6 of the Statement of Claim the Plaintiff states: -

"In purported performance of the said contract, the defendant delivered a crankshaft to the plaintiff but in breach of the said contract and of the said conditions and warranties thereof, the said crankshaft was not fit for the said purpose for which it was required in that it was a crankshaft for a naturally aspirated engine and not for a turbo charged engine; it did not correspond with the said description; and it was not merchantable under the said description."

So that in effect the Plaintiff is claiming that the contract in this case is caught by Section 15, 16(a) and 16 (b) of the Sale of Goods Ordinance.

The actual invoice for the crankshaft dated the 21st March, 1979 is not very detailed and appears to read: -

Now Section 15 of the Sale of Goods Ordinance provides that:

"Where there is a contract for the sale of goods by description, there is an implied condition that the goods shall correspond with the description…"

Although the condition is implied where the buyer has not seen the goods and relies solely on the description given by the seller (Varley v. Whipp 1900 1Q.B. 513) the condition may also, if more rarely, be implied where the buyer has actually seen the goods provided he can prove that he still relied essentially on the description and that the discrepancy between the description and reality was not apparent at the time. (Nicholson and Venn v. Smith Marriot (1947 177 L.T. 189).

In this case I find myself quite satisfied that here there was a contract for the sale of goods by description. It is true that the Plaintiff saw the crankshaft at the Defendant's store but from the evidence it is made clear that the crankshaft which is the subject of this Action was such that there was nothing to the layman at any rate to distinguish it from being a crankshaft for a turbo charged or for a naturally aspirated engine. There was evidence that strengthened metals are used in turbo charged crankshafts but it would seem that this would not be distinguishable to the naked eye. So that I find myself satisfied that the Plaintiff relied essentially on the description and that the discrepancy between the description and reality was not apparent at the time.

Further Section 16 (a) of the Sale of Goods Ordinance provides that:

"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……….."

It is true by the strict wording of the section that not only must the buyer make his purpose known to the seller, but he must thereby "show that he relies on the seller's skill and judgment". Cheshire and Fifoot's Law of Contract (8th Edition) p. 148 comments…. "Judicial interpretation, however, has substantially eased his (the buyer's) burden."

Clearly where a buyer asks for goods which may normally be put to more than one purpose he is required to prove that the seller knew for which of those purposes they were required. This onus the buyer will discharge either by telling the seller of his particular purpose or by proving facts such as the seller's acquaintance with the nature of his business, from which the requisite knowledge may be inferred.

I have already found that the Plaintiff asked the Defendant's servant for a turbo charged crankshaft, and thus I find that the seller (in the person of the Defendant's servant) knew the purpose for which the crankshaft was required; and thus I find that the Plaintiff has discharged the onus upon him in this respect.

I have also given careful consideration to that part of S. 16 (a) which reads …

"and the goods are of a description which it is in the course of the seller's business to supply…"

and whilst I accept the Defendant's evidence that they do not normally stock parts for turbo charged engines, set against that is Awe's evidence that whilst he was in the Defendant's employ he did not know that they did not stock turbo charged engine parts, as well as his evidence that he recalled air filters for turbo charged engines being in stock - a fact which was later corroborated by Gomez, another of the Defendant's servants.

But for me any lingering doubt on this point was finally resolved by the judgment in Spencer Trading Co. Ltd. v. Devon (Fixol and Stickplast Ltd. 3rd Parties) (1947 1 All E.R. 284) where it was held that the condition will be implied if the goods belong to a class in which the seller usually deals, and this is so even though the particular goods are not usually handled by the seller. In the instant case I find that the goods - crankshafts generally (naturally aspirated as well as turbo charged) can be implied as belonging to a class in which a seller usually deals.

As Hilbery J. said:

"To attract an implied condition as to their fitness, the goods must be 'of a description which it is in the course of the seller's business to supply', but goods can belong to that description, although they take a special form in a particular instance. The form may be particular but none the less the goods can belong to the description."

So that in my view, a turbo charged crankshaft prima facie falls into the category of goods which it was in the course of the Defendant Company to supply.

I now turn to consider whether the transaction has been caught by S. 16 (b). As Lord Wright pointed out in Grant v. Australian Knitting Mills (1936) A.C. 85, a distinction must be drawn between goods which have only one use and goods which have several uses. If they have only one use, they are unmerchantable if they have defects making them unfit for that use. In this type of case, there is no real distinction between 'quality' and 'fitness', and a buyer is likely to recover damages under both sub-sections. (See Godfey v. Perry (1960) 1 All E.R. 36.) If, however, the goods have several uses, they will only be unmerchantable if they are unfit for all of them (Summer Permain v. Webb (1922) 1 K. B. 55).

Another, and I think, more cogent illustration is provided by the case of Cammel Laird v. Manganese Bronze and Brass Co. Ltd. (1934) where the sellers manufactured a ship's propeller for a particular ship owned by the buyers. The finished propeller had defects rendering it unfit for the buyer's particular ship, although it could have been used perfectly well on other ships. Having classified the contract as one for sale for goods the House of Lords held that the sellers were liable under S. 14 (1) (which approximates to our S. 16 (a)) but not under S. 14 (2) (our S.16 (b)).

As Lord Wright said at p. 430 in Cammell Laird supra: -

"What subsection 2 now means by 'merchantable quality' is that the goods in the form in which they were tendered were of no use for any purpose for which such goods would normally be used and hence were not salable under that description. To apply this principle to the present case, the question is whether the defective propeller could be used as a propeller not merely on No. 972 but on any vessel: it is immaterial to consider if it could be sold as scrap: thus in Asfar & Co. v. Blundell dates were held to be unmerchantable as dates because they had been submerged in the Thames and had become impregnated with sewage and were useless as dates, though they were of considerable value for distillation into vinegar.

Roche J., found 'that this propeller was not suitable on this ship, the defendants have not tried it on any other ship and I find that the propeller was not fit for use as a propeller at all'. Greer L.J. was of opinion that there was no evidence that the propeller had faults that made it unsuitable as a propeller; it might have done fairly well for some other vessel. On the whole I agree that the breach of this implied condition is not established. If I were able to draw inferences at large, I should be disposed to think that a propeller of this size and design, ordered for a particular ship, is not likely to be of use for any other ship unless a sister ship: it is not a standardized propeller for a standardized ship: hence it was not usable on the Athelfoam, and no one thought it worth while to try it on the Athelbeach or any other vessel, the true inference may well be that it was of no use for anything but scrap. Still this is a matter of fact which it was for the appellants to establish by evidence, and I cannot find that they had done so. I think the appellants fail on this point, which it is fair it say that they did not press."

When one looks closely at the instant case and that of Cammell Laird and Manganeze Bronze similarities are to be seen; and when applying the law to the facts as set out by Lord Wright I find myself completely satisfied that the implied condition under S. 16 (b) has not been established.

Having reached the conclusions that I have it is, in my view, no longer necessary to deal with the very detailed expert evidence concerning the suitability (or feasibility) or otherwise of installing a naturally aspirated crankshaft into a turbo charged engine.

For the reasons that I have given the Plaintiff's claim must succeed under Sections 15 and 16 (a) of the Sale of Goods Ordinance, and it therefore follows that the Plaintiff is entitled to recover the cost of the crankshaft in the sum of $1,668.51.

In regard to the Plaintiff's claim in respect of the cost of repairs to the vehicle and for damages for the loss of use of the vehicle, if these cannot be agreed by the parties, then their assessment is to be remitted to the Registrar for determination.

There is also a claim for interest made by the Plaintiff but I will be unable to hear submissions on this claim until after the conclusion of the October Criminal Sessions. It will therefore be necessary for the hearing and determination of this claim to be deferred until a convenient date after those Criminal Sessions have concluded.

The Plaintiff is to have the costs of the action.