[*416] 1986 February 22

(KALLIS, D.J.)

IN THE DISTRICT COURT OF NICOSIA

Andreas Vassiliou and Another,

Plaintiffs,

v.

Plaka Tavern Ltd.,

Defendants.

Action No. 6273/ 85).

Sale of goods - Sale of sample - Sale by description - "Reasonably fit for such purpose" in s. 16 of the Sale of Goods Law, Cap. 267 - Peculiarity in buyer ' s position not known to seller - Effect.

Evidence - Intrinsic or Parol evidence - Written document - Its language not clear - Extrinsic evidence admissible to explain its meaning.

A. Paikkos, for the Plaintiffs.

A. Papacharalambous, for the Defendant.

JUDGMENT

The following judgment was delivered by

KALLIS. D.J.: By virtrue of an order dated 20.4.85 the defendant company, through its Director, ordered 130 "plastikes diktiotes" chairs at £6- each. In pursuance of the order, the plaintiffs, who are, inter alia, furniture manufacturers, made the above chairs and delivered to the defendants 125 of them, under invoice No. 3043 dated 6.5.85 for £750.- Plaintiffs repeatedly asked for payment from defendant company but the latter refused and / or neglected to pay; and hence this action for £750-

The defendants alleged that the order in question referred to a type of chair which is fit for purposes of taverns and was not susceptible [*417] to change or alteration, something which was agreed between the parties. Plaintiffs delivered to the defendants 125 chairs which were defective and had nothing to do with the order they have placed both as regards the height and the width and they did not correspond with the agreement between the litigants. The defendants have a secured space for the storing of the chairs at a monthly rent of £17 - which they claim by way of counterclaim. On 8.5.85 plaintiffs visited the place where the chairs were stored and promised that they will repair or replace them, but they failed to do so.

The Evidence:

Plaintiff 1 -P.W.1 - testified that Georghios Frankeskides visited him at his workshop and asked that 130 chairs be made for him. Thereupon he led him to the showroom and showed to him various types of chairs. He finally chose the "plastiki diktioti" chair with a plastic "diktioto" seat and a metallic skeleton; and signed the relevant order - exh. 1 - which was completed by the witness. The order refers to "130 plastikes kouppa" chairs. He made the chairs and delivered them to Mr. Frangeskides at the defendants' tavern at Engomi on 6.5.85 having, also, issued an invoice - exh. 2 - which he delivered together with the chairs. The invoice refers to "125 diktiotes" chairs. After the delivery of the chairs Frangeskides handed to him a cheque - exh. 3 - for £300 - and said that he will pay the balance on the following day. At the time of delivery of the chairs Frangeskides raised no complaint about the chairs but two days later he went to plaintiff's workshop, alone, and told him that having tested ("edulepse") the chairs at the tavern one of his customers told him that they are low and she feels like a child thereon and that they should see that they are repaired, whereupon, the witness said: "tell me what do you like, if you would like me to make them higher I will do so, provided you will pay the expenses". Frangeskides agreed and left, and the following day he went to the plaintiffs' workshop accompanied by a [*418] policeman and told him to repair a chair by making it higher by three fingers ("daktila") and take it to him as a sample. Plaintiff did so and when Frangeskides saw the repaired chair he said that he will pass from plaintiff's workshop. When Frangeskides failed to turn up, he telephoned to him and he replied that the chairs were not suitable ("den tou kamnoun"). The cheque was turned with the indication "stop payment". Three days after the delivery of the chairs he asked from Frangeskides to give him 8 chairs on loan for the purposes of the State Exhibition and the latter agreed. He did not return these chairs and, thus, his claim is reduced by £48-

In cross-examination, he said that Frangeskides ordered the "plastiki diktioti kouppa" chair, a sample of which was at the showroom and he (Frangeskides) saw it and sat thereon. Frangeskides made no specific claim when ordering the chairs, but he said that the chairs were to be made according to the sample by saying "these are the ones I want". He has two types of chairs for taverns, one such type is the chair he made for the defendants which he calls ("onomazi") "plastiki-diktioti kouppa". He undertook to repair the chairs because Frangeskides promised to pay the expense involved. The chairs for the exhibition were taken on loan, they were sold by him and he made no other chairs for Frangeskides because after the misunderstanding he was afraid to go to Frangeskides tavern. When put to him that the chair ordered by Frangeskides was the ordinary plastic chair like the yellow plastic one ("yellow chair") which is part of the courtroom furniture, he replied that he does not keep in his show-room such a type of chair. He denied that Frangeskides stressed that the chairs should not have a projection (proexochi") and reiterated that he told him "a chair just the same as this chair". He, also, denied that he agreed to take back the chairs and have them replaced; but he agreed to have them repaired provided that defendants would pay the expenses.

In re-examination, he said that the chairs he delivered are the same as the sample shown to Frangeskides when he placed the order. [*419]

D.W.1 Georghios Frangeskides - director of the defendant company - testified that accompanied by Police Constable Papadopoullos - D.W.2 - he placed an order for 130 plastic "kouppa" chairs. He was not present when they were delivered. He saw the chairs in the evening and ascertained that they were not those he ordered. The chairs he ordered were as stated in the order - exh. 1. Before placing the order plaintiff 1 had shown to him a chair, he did not approve it and explained to him how he wanted it by telling him "I want a chair with no supports ("akoumpistria") the ordinary chair", just like the yellow chair of the court. The chairs made by plaintiffs are wider and "diktiotes" and they create a space problem. This is so, because he uses the chairs for the tavern and each of his tables can accommodate 6 of the ordinary chairs but it can only accommodate 4 of the plaintiffs' chairs because they are wide. Moreover, the chairs were not of the normal height they were lower. He protested through the telephone to plaintiff on the evening of the delivery or the following morning, saying to him that the chairs were not those he had ordered, and plaintiff 1, after taking certain measurements, agreed to make another chair and show it to him. In fact plaintiff 1 asked him to go to his workshop and see the chair but he did not do so because his (plaintiff's) mood, whilst on the telephone, was wild. The witness added that on the day he telephoned as above, he passed from plaintiff s workshop and told plaintiff that the chairs were defective and requested him to have them repaired and he would pay the expense involved in order to avoid further trouble; and plaintiff 1 agreed. Subsequently, plaintiff 1 went to the tavern and took 9-10 chairs which have not as yet been returned. He is not using the chairs in question, he has stored them in certain premises which he leased at £17- per month. The invoice was signed by him at plaintiffs' workshop on 6.5.85 - date of invoice - on his way to the market because there had preceded a telephone call from plaintiff 1 that the chairs were ready. The chair in question was produced as exhibit 4, and the witness said that its skeleton is not affixed to the seat whereas the skeleton of the ordinary chair he has ordered is affixed to the seat and thus such chair is narrower than exhibit 4. The plastic seat of exh. 4 is [*420] "diktioto" whereas he ordered an even seat ("isio").

In cross-examination he said that in plaintiff's show-room there was no chair-sample like the chair exh. 4 and he described the chair sample as being about ("enan peripou") like the yellow chair of the courtroom. There were also other chairs-samples which were unsuitable for taverns and the only one which was suitable was the "yellow" one of the court-room which is the ordinary tavern chair. When put to him that in the plaintiff's showroom there was no chair-sample like the "yellow" one of the Court he replied: "Indeed there was no such chair but I described to him the chair I wanted"; and when asked to say precisely how he described it he replied that what he said to P.W.1 was "I want an ordinary chair suitable for taverns, the ordinary chair the one used in taverns". adding "he is the technician, not me". He further said that he did not specify the width and the height of the chair and added that he spoke about a flat chair. He did not use the chairs on the night of their delivery and he placed them in the store; but that as he wished to see the problem in actual practice, he used a few of the chairs and the comments from the customers were that the chairs were not fit for taverns because they were low and wide. He had ascertained the defect himself before the customers when he noticed that they could not be accommodated beneath the tables but he thought of giving to plaintiffs the benefit of the customers' comments. When ordering the chairs he did not mention the dimensions of his tables to the plaintiffs and he did not ask that they should accommodate 6 chairs, but he simply ordered the "ordinary chair". He further said that he suggested to P.W.1 to have them repaired and he will pay him something more or to sell them and he will pay him about £50.- if he suffers any damage.

D.W.2 Neophytos Papadopoullos, a Police Constable, testified that he accompanied D.W.1 when he went to order the chairs. P.W.1 showed to D.W.1 various chairs, most of them garden chairs and D.W.1 told him "I want a simple ("aplin") chair for my tavern. I want you to make for me [*421] chairs like these ("potoutes tes karekles"). D.W.1 did not order a chair like the one exh. 4. He, also, said that the chair-sample which P.W.1 showed to D.W.1 was a simple chair ("apli - sketti").

Cross-examined, he said that in plaintiffs' showroom there were "yellow chairs", like the courtroom one, and chairs like the one exh. 4; and both these chairs were shown to D.W.1. Out of the chairs shown to him he choose the "ordinary plastic chair, the yellow one of the court-room". When put to him that in plaintiffs' show-room there was no chair-sample like the yellow one, he said: "Chairs are not my job, but I remember an ordinary chair like the yellow one of the Court-room". He finally said that when after the delivery he accompanied D.W.1 to plaintiffs' shop, D.W.1 told P.W.1 that the chairs were not fit for the tavern and asked him to have them repaired or sell them and he will meet the extra cost involved.

D.W.3 Andreas Gregoriou, son-in-law of D.W.1 and employee of the defendants, testified that he was present when P.W.1 delivered the chairs in question. At noon of the day of delivery he was handed a cheque - exh. 3 - by D.W.1 and he gave it to P.W.1 after he had delivered the chairs. D.W.1 came about an hour after the delivery and on his instructions the chairs were placed beneath the tables whereupon D.W.1 ascertained that they were defective and he started shouting.

In the light of the pleadings and the evidence, the Issues which arise for consideration are two, namely:

(a) Whether the sale was a sale by sample; or

(b) a sale by description.

And these issues rest to be decided on the credibility of the witnesses. Having had the occasion to follow closely all the witnesses whilst testifying before me, and to observe their demeanour in the witness box, I have not the slightest hesitation to accept the evidence of P.W.1 and reject that of D.W.1 - D.W.3 for P.W.1 has given his testimony in [*422] a most natural, convincing and straight forward manner, whereas the defence witnesses particularly D.W.1 and 2 not only have impressed me poorly as witnesses, but they have fallen into a most material contradiction, namely at one stage they spoke of a sample-chair like the yellow one of the court-room and at another stage they said that there was no such chair. I, therefore, find that the true facts are as per the evidence of P.W.1; and I, accordingly, hold that the sale was a sale by sample; and that all the chairs which were delivered to the defendants fully corresponded with the sample.

Learned counsel for the defendants submitted that in view of the difference in the contents of exhs. 1 and 2, in that exhibit 1 - the order - refers to "chairs plastikes kouppa" and exhibit 2 - the invoice - refers to "chairs diktiotes", the plaintiffs have not delivered the chairs mentioned in the written order and are now precluded by virtue of the rule against parol evidence to alter or supplement the contents of the written order.

Let me say that much as I respect the rule against parol evidence (and see in this connection Mavrou v. Theodorou (1984) 1 C.L.R. 634), I am of the opinion that it cannot be invoked by the defendants for the following reasons.

What P.W.1 said is that he calls the chair which D.W.1 ordered and which he made for him as "plastiki diktioti kouppa" thus implying that a "couppa" chair - as described in the order exh. 1 - and a "diktioti" chair - as described in the invoice exh. 2 - and a "diktioti-kouppa" chair are one and the same thing. Now the language of the two documents is not at all clear; and I assume that the expressions "kouppa" and "diktioti" are expressions used in the relevant trade. This being the position, P.W.1 was entitled to give evidence in order to explain the meaning of the expressions in question and in order to supplement the contents of the two documents; and this conclusion is borne out by the following passage [*423] from Phipson on Evidence 10th ed. para. 1851:

"Where the language of a document is clear and applies without difficulty to the facts of the case, extrinsic evidence is not admissible to affect its interpretation; but where the language is peculiar, or its application to the facts is ambiguous or inaccurate, extrinsic evidence may, subject to the qualifications hereinafter stated, be given in explanation".

The evidence of P.W.1 is, therefore, admissible. The defendants could, if they so wished, adduce evidence in support of their version that a "kouppa chair" is something different from a "diktioti" or a "diktioti- kouppa" chair; but they failed to do so or even to dispute the version of P.W.1 in cross-examination.

Having concluded as above, I would add that even if the version of the defendants were to be accepted whereupon I would have held that the sale was one by description - as envisaged by section 15 of the Sale of Goods Law, Cap. 267, then again the defence would have stood no chance of success for the following reasons:

In view of the evidence of D.W.1 there would have been applicable the provisions of section 16(a) of Cap. 267 which run as follows:-

"16. Subject to the provisions of this Law and of any other Law for the time being in force, there is no implied warranty or condition as to the quality or fitness for any particular purpose of goods supplied under a contract of sale, except as follows:-

(a) 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 [*424] is the manufacturer or producer or not), there is an implied condition that the goods shall be reasonably fit for such purpose".

Now, regarding the phrase "reasonably fit for the purpose" appearing in the aforesaid section 16(a), the Law is thus stated 1n para. 818 of Benjamin's Sale of Goods:

"'Reasonably fit for that purpose'. Where the sub-section applies, the seller's duty is to supply goods reasonably fit for the purpose. The former provision used the same phrase, except that it referred to 'such purpose' rather than 'that purpose' ; cases on it are obviously therefore still valid. A well-known example of its application is Bristol Tramways, etc.. Carriage Co. Ltd v. Fiat Motors Ltd. where buses ordered were known to be wanted for heavy passenger work in Bristol, and proved unsuitable: the seller was held liable. The seller does not guarantee that the goods are absolutely suitable: a second-hand car may be reasonably fit for its purpose though it is known to require repairs when bought. Nor does he guarantee against the results of misuse. Still less does he guarantee suitability where because of an unstated peculiarity in the buyer' s position, only goods of a special type are in fact suitable for his purpose".

Further, in Bristol Tramways v. Fiat Motors (1910) 2 K.B. 831, the following are stated at p. 841:

"The phrase In s.14, sub-s. 2 is, in my opinion, used as meaning that the article is of such quality and in such condition that a reasonable man acting reasonably could after a full examination accept it under the circumstances of the case in performance of his offer to buy that article whether he buys for his own use or to sell again".

D.W.1 said that he did not specify the width or the height of [*425] the chairs or the dimensions of his table and that they should accommodate 6 chairs. Reading, however, through the evidence of D.W.l, one can reasonably draw the inference that the chairs in question are not fit for the particular tavern of the defendants because of the peculiar situtation arising from the dimensions of the tables, and this Is so, because the main complaint of the defendants was directed against the width of the chairs which could be accommodated in 4 beneath the tables and not in 6. This situation, however, is a "peculiarity in the buyer's position" only known to him and never stated to the seller; and does not render the chairs unfit for taverns in general. Therefore, the defendants would have stood no chance of success even if their version were to be accepted.

Though my rejection of the evidence adduced by the defendants in toto would have sealed the fate of the counterclaim, I proceed to make my pronouncement on the counterclaim as well. Having considered the evidence in support of the counterclaim, I am not satisfied that it constitutes the sort of evidence that can sustain the counterclaim in question, even if it were to be accepted as truthful, which is not the case. The damages claimed are by way of special damages and the most cogent evidence is required for the proof thereof. The counterclaim must, for these reasons, fail. (See Emmanuel v. Nicolaou (1977) 1 C.L.R. 115).

Having concluded as above, I would add that the taking of 8 chairs on loan and their non-return for the reasons given by P.W.1, cannot, in the circumstances of this case, affect the position. Nor does the undertaking of the plaintiffs to repair the chairs make the position any different because it was given on the understanding that the defendants would pay the expense involved.

In the result, judgment is given for plaintiffs for £702 with costs to be assessed by the Registrar. The counterclaim is dismissed with no order as to costs.

Judgment for £702-with costs. Counterclaim dismissed.