Supreme Court
Action No. 94 of 1982
26th August,1983.
Moe, C.J.

Mr. Denys Barrow for the Plaintiff.
Mr. Allan Pitts for the Defendant.

Contract - Breach of Contract - Sale of Goods Ordinance - Sale of Goods by description - Defective goods - Effect where goods do not correspond with description given.

J U D G M E N T

The Plaintiff company claims from the Defendant company $9,700.57 being the balance of the purchase price of goods sold and delivered to the Defendant company. The Defendant company admits sale and delivery of goods to it on credit but says it owes a balance of $9,700.57 less $6,224.38 being the purchase price of one Polychrome PC-32 Plate Processor, one of the goods sold and delivered, but which was defective and not reasonably or at all fit for the purpose for which it was bought. The Defendant says that at the time of buying the processor, it made known to the Plaintiff the particular purpose for which it required the processor, that it relied on the Plaintiff's skill and judgment and the processor is an item which it was in the course of the Plaintiff's business to sell. It therefore claims it was an implied condition of the contract that the processor would be reasonably fit for the purpose for which it was required. It says the Plaintiff was in breach of the contract and it was entitled to repudiate it. It clearly invokes section 16(l)(a) of the Sale of Goods Ordinance, Cap 207.

2. The evidence is that the Managing Director of the Plaintiff company, a Mr. Lindo, a printer and the Managing Director of the Defendant company, a Mr. Bouloy, also a printer, went to a printing exposition in Miami, U.S.A. Mr. Lindo at the time was also a representative of Polychrome. Another representative of Polychrome, told Mr. Lindo that if he purchased two of the processors on exhibit he would give him 90 days credit. Mr. Lindo then asked Mr. Bouloy if he was interested in them. Mr. Bouloy asked if the processor could process the type of plates and chemicals that he used which were of make Howsner Ralghrap. The American representative said that it could. Mr. Bouloy told Mr. Lindo if that is so, he will agree to purchase one from him, Lindo, who, as representative in Belize will be responsible for any trouble with the machine. Mr. Lindo said that that was okay. Mr. Bouloy added in cross-examination that Mr. Lindo said if the American Representative who knows more about the processor than I do says it can work, he too says it can work. When the processor was delivered and set up, Mr. Bouloy operated it and several plastic wheels inside the machine melted. The wheels inside the machine are for guiding the plates through the machine. The Defendant got in touch with Mr. Lindo who indicated he would replace the plastic wheels which he did after a long period of time. He also delivered a thermostat for replacement. The Defendant replaced the wheels, but not the thermostat.

He asked Mr. Lindo to do so. Mr. Lindo did not and the processor has not worked yet. The only evidence as to why the melting of the rollers occurred came from the Defendant who said that he thought the chemicals must have gotten hot and melted the wheels, but he could not explain why this would occur.

3. It was contended for the Plaintiff firstly, that the Defendant's claim for breach of warranty and/or representation by the Plaintiff company has not been made out on the ground that nothing is shown by evidence that whatever warranties or representations were made by Mr. Lindo were made on behalf of the Plaintiff company. I rejected this. The evidence is that Mr. Lindo is Managing Director of the Plaintiff company. As such, he is an agent of the Plaintiff. I found that when he made representations to Mr. Bouloy he made them in the same capacity in which he agreed to sell and deliver to Mr. Bouloy. When he agreed to sell and deliver to Mr. Bouloy he was acting as agent for the Plaintiff company who has pleaded that it sold and delivered to the Defendant. It was contended secondly, that there is no evidence that the Plaintiff company was in the business of selling processors, specifically Polychrome PC-32 Plate Processor. Thirdly, there was no evidence that the processor was not fit for the purpose as pleaded, i.e. printing of plates in the Defendant's business; and fourthly, this was a sale of a specified article under trade name which the Defendant saw being exhibited, in which case the condition to be implied under section 16(l)(a) would not apply.

4. The contract was clearly for the sale and purchase of a specific article under its brand name. But I think that the Defendant may still be entitled to the benefit of section 16(l)(a) of the Ordinance if Mr. Bouloy made it clear that he was relying on Mr. Lindo's skill and judgment to ensure that the processor would be fit for the purpose concerned. See Baldry v Marshall [1925] 1 K.B. 260.

5. I turn first to determine whether the Defendant bought the processor in circumstances showing that he relied on the Plaintiff's skill and judgment. I find firstly that Mr. Bouloy expressed to Mr. Lindo a purpose which the processor was to serve namely, to process Howsner Ralghrap plates and chemicals. Secondly, that Mr. Bouloy asked of Mr. Lindo about the processor's capabilities and stipulated that he, Mr. Lindo, would be responsible for any trouble with the machine, which I think clearly show that Mr. Bouloy was relying on the skill and judgment of Mr. Lindo. And he was so relying despite the fact that he was buying a processor with a brand name.

6. I turn now to the question whether the processor falls into the category of goods which it was in the course of the Defendant's business to supply. The evidence is that the Plaintiff, the seller, is a printing company and Mr. Lindo, its agent, is a printer. There was no direct evidence that the Defendant company is a dealer in or a supplier of processors. Nor was there any evidence that Mr. Lindo is a dealer or supplier of processors. But there was evidence that the Defendant company, through Mr. Bouloy, has, from time to time, bought printing machines and materials from Lindo. This is evidence that the Plaintiff company, through its agent, Mr. Lindo, deals in or supplies printing machines and materials. In my view, a processor - a machine - does fall within the description of printing machine. I held ,therefore, that the processor falls within the category of goods which it was in the course of the Plaintiff's business to supply.

7. Consequently the contract attracts the application of section 16(l)(a) of the Sale of Goods Ordinance, i.e. the implied condition as pleaded. The question now is whether the processor concerned was reasonably fit for the purpose made known. Can it be said that a processor whose rollers (which are to guide the plates through it) melt when the processor is operated was reasonably fit for the purpose of processing plates? The Defendant raised a prima facie case that the processor was not fit for its purpose and on that state of evidence with which I was left, the Defendant's evidence being the only evidence before me, I concluded that it not fit for the purpose.

8. I held that the Plaintiff company was in breach of the condition to be implied in the contract. The Defendant has conceded property in the processor passed and a breach of the condition can only be treated as a ground for damages. I faced some difficulty in determining the loss resulting from the breach under consideration. The damages is to put the Defendant so far as money can do it, in the same position as if the contract had not been broken. The Defendant claims extinction of price which he would have had to pay as his damages. I allow it.

9. In the result, the Plaintiff will have judgment for $3,476.19 with interest at 6% until payment.

----------OO----------