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Zachary v. Biharamulo District Council Cv. App. 3-M-70; 24/8/70; Mnzavas Ag. J.



Zachary v. Biharamulo District Council Cv. App. 3-M-70; 24/8/70; Mnzavas Ag. J.

The parties entered into a written contract that the appellant, in consideration of a sum of Shs. 4050/-, was to prepare and supply to the respondent office furniture made of mninga timber. The respondent repudiated the contract because the furniture delivered was made of mvule and not mninga timber. The appellant did not deny that the had made the furniture out of mvule timber, but he claimed that the parties had rescinded their written contract by substituting for it an oral one by which the furniture  was to be made of mvule and therefore the respondent had no right to

            Held:(1) “I fail to accept that there was such a variation of the original written contract the appellant had experiences difficult in obtaining mninga timber and wanted to utilize mvule timber instead one would have expected him to communicate his difficulty to the Council in writing. Indeed he wrote a letter to the Council on 30/10/68 asking for extension of time of the delivery of the furniture. He, in this letter, asked the time of delivery of the furniture to be extended to 11/11/68. This request was accepted by the Council in their telegram of 8/11/68. Nowhere in the letter of 30/10/68 does the appellant express his inability to obtain mninga timber apart from saying that he received the timber rather late from Uganda. Nor does he in this letter ask to be allowed to substitute mvule mninga timber. From the evidence, the learned resident magistrate was entitled to come to the conclusion that the written contract between the parties dated 28/9/68 was the contract binding them.” (2) “The contract between the appellant and the respondent Council was clearly one for the sale of goods. Section 52(3) of the sale of Goods Ordinance, Cap. 214 says “Where the seller delivers to the buyer the goods he contracted to sell mixed with goods of a different description no included in the contract the buyer may accept the goods which are in accordance with the contract and reject the rest, or he may reject the whole.” In the present case, the appellant supplied furniture of a totally different description from that he was under obligation to deliver. The obligation to deliver mninga furniture to the defendant Council went so directly to the substance of the contract, or in other words was so essential in its very nature that the non-performance may fairly be considered by the Council as a total failure to perform the contract. This being a breach of a condition, the respondent Council is entitled to treat the contract as repudiated.” (3) Appeal dismissed.

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