I W I L S O N , Ρ , Zi K I A , VASSIIJADLS and JOSEPHIDES, JJ | 1962 Oct. 23 " M U H A R E M SIDKI MUHARfi*· SlDJU Appellant (Defendant), v, DEMOS DRYMIOTIS (Respondent (Plaintίβ). (Civil Appeal No. 4369). Civil Wrongs—Detinue—Civil Wrongs Law, Cop. 148,section 37— Detinueamounts to wltholding thegoods andpreventing the plain tiff from obtaining possession of them. The respondent-plaintiff permitted the appellant-defendant to take away a dlesel engine connected with a centrifugal pump. It was agreed that the appellant-defendant could take the said pump to a mechanic with a view to Its being checked, and tf after the checking the appellant-defendant wanted to buy it he would pay £120, otherwise he would return i t t o t h e respondent-plaintiff. After the mechanic'examined the pump the appellant-defen dant offered tO).bdy,the said pump for £80. This offer was not accepted by the respondent-plaintiff who asked the appel? lant-defendant'to return the pump. The appellant-defendant' in reply urgedjthe respondent-plaintiff to make arrangements and collect the'pump froml,ehe mechanic's shop. When the respondent-plaintiff called at the mechanic's shop to collect the pump, thej'mechanlc refused to give him the pump unless he was paid £l'for his labour. As the mechanic had a lien over the pump he was right In refusing to part with the pump The District Court'ordered that the defendant do return the said pump and to pay the plaintiff's costs. The defendant appealed against the order and the appeal was allowed Held (I) The real transaction between the parties was a sale of the equipment for the pi ice of £120 if after inspection it was accepted and if not accepted it was to be r e t u r n e d because it was removed f r o m plaintiff's prcnmes only for the purposes of inspection
(2)The defendant was impliedly bound to i e t u m it w i t h i n a reasonable t i m e if he d i d not accept it This brings the tran saction w i t h i n the provisions of section'24 of the Sale of Goods Law. Cap 267. 251 V. DEMOS DRYMIOTIS 1962 Oct. 23 MUHARtM SlDKI V, DtMOS DRVMIOIIS
(3)However, during the time the equipment was out of the plaintiff's possession it was subject to the lien of theme chanic. Therefore, the appeal should be allowed.
(4)"Rather than direct a new trial to permit the plaintiff to claim damages with liberty to amend pleadings, we think the interests ofjustice will best beserved ifwe assess theplain tiff's damages at £1, the amount of the mechanic's accountand in addition 500 mils, the costs of transporting the equipment back to his place of business, making atotal of £1.500 mils. Appeal allowed, each party to bear his own costs throughout. Cases referred to :— Clementsv. Flight 73 R.R. 421,
(1846); Clayton v. LeRoy
(1912)81 L.J.K.B.49; The Trustee v. Donald
(1944)I Ch.
- Appeal. Appeal against the judgment of the District Court of Nicosia (Ch. K. Pierides and A. Izzet, D.J.J.) dated the 12th February, 1962, (Action No. 1920/60) whereby the defendant was ordered and adjudged to return a diesel Engine No. 9B663 "Farymann" make 8 h.p. with all its accessories in the same condition as it was received by the defendant plus £43.350 costs. A. Triantafyllides for the appellant. CJ. Mvrianthis for the respondent. The judgment of the Court was delivered by :— WILSON, P. : This is an appeal by the defendant from a judgment dated February 12th, 1962,delivered in the District Court of Nicosia in which it was ordered and adjudged that the Defendant do return a diesel engine No.9B663 "Fary mann" make, %h.p., connected with a centrifugal pump. "Robinson" make, 2 1/2" χ 2" as well as a belt all affixed on a transportable base with two wheels to the plaintiffs place of business in the same condition as it was received by ihc defendant. 252 It also ordered the defendant to pay the plaintiff £43.450 mils costs of theaction plus £0.700 mils costs of thejudgment. 1962 Oct 21 MUHAKgM The plaintiff's claim arose in the following manner. Sa>u The defendant, a farmer, approached the plaintiff, u mechanic merchant, and asked whether he had an engine (to operate a pump) to sell, whereupon the plaintiff said he had a second-hand one and that the defendant could bring a mechanic and have it examined if he wished. A few days later the defendant collected a mechanic and took him to the plaintiff's place of business to see and examine it. The defen dant wanted to examine it, but as the mechanic had no tools with which to take it apart, they requested permission to re move it to the mechanic's premises for that purpose. The plaintiff told the defendant the value of the.engine and its accessories was £120 and that he could take it, examine it, and, if he liked it he could keep it and pay £120, otherwise return it to him. The defendant accepted this offer and the engine and its accessories were removed to the mechanic's premises. Fifteen or twenty days later the plaintiff tele-. phoned to thedefendant enquiring about thelatter'sintention. He offered £80 for the equipment which the plaintiff refused and requested its return. Several days later they met at a building then under construction. The plaintiff asked the defendant*-what had happened to the equipment and was told it was at the shop of the mechanic where the plaintiff could go and get it. The plaintiff refused to do this telimg thedefendant he ought to bring it back to the plaintiff's shop. However, in a few days the plaintiff did go to the mechanic's shop, but the mechanic refused to part with the equipment until his account of £1 was paid. In this he was quite correct because he was entitled to a lien upon it as long as it remained in his possession. DEMOS DRYWIOTIS Upon instructions of the plaintiff his counsel on 2.3.60 wrote the defendant demanding return of the equipment or payment of £
- The defendant did neither. The plaintiff then commenced this action. (u) for the return of the equipment. Alternatively <h) £120 damages for wrongful conversion (c) £30 damages as a resull of depiecialion and ιhe use and possession by (he defendant, (d) costs of the action. 253 V. Wilson, Ρ 1962 Oct. 23 DEMOS DRYMIOHS The trial court gave thejudgment from which this appeal is taken. Inthereasons forjudgment nocases orstatements of law were cited or referred to,butbefore usit wasargued that the law-relating-to detinue applies and the following authorities were cited. Wilson. P. Saimond, on Torts, 10th ed.pp.312-3 (12th Ed.p.282); MUHAREM SfDKI V. Clements v.Flight 73R.R.421,
(1846); Civil Wrongs LawCap. 148,Sec. 37; Clayton v.LeRoy
(1912)81 L.J.K.B.49. They donotsupport theplaintiff's case. Infact the opposite is true as thefollowing statement in Saimond on theLawof Torts 10th Ed.p. 313(12thEd.p.283)proves : "In order to support the action there must bea withholding the goods and preventing the plaintiff from obtaining possession of them". Clements v. Flight cited above only decided that that action was brought prematurely. Inanyevent theclaim then would have been based on conversion. In the present case conversion could not be proved. The action ofdetinue originally was based upon awrongful detention of the plaintiff's chattel evidenced by a refusal to deliver it up on demand and the redress claimed wasnot damages for the wrong but the return of the chattel or its value. Such claims arose out of a bailment of the chattel to the defendant, or an alleged finding of it by him. Inthe former case the action was essentially one in contract, in the latter essentially in tort : Clerk & Lindsell, on Torts 11th Ed. 1954p.443paragraph723. Here the real transaction between the parties wasa sale of the equipment for the price of £120if after the inspection it was accepted. Ifnot accepted itwastobereturned because it was removed from the plaintiffs premises for purposes of inspection. Impliedly the defendant was bound to return it within a reasonable time if he did not accept it. Thus it comes within theprovisions ofsection 24ofthe Saleof Goods Law. Cap. 267 which reads : "When goods are delivered to the buyer on approval or "on*sa!e or return" or other similar terms, the property therein passes to the buyer— 254 "(
- a)when hesignifies his approval or acceptanceto the seller or does any other act adopting the transac tion ; "(
- b)if he does not signify his approval or acceptance to the seller but retains the goods without giving notice of rejection, then, if a time has been fixed lor the return of the goods, on the expiration of such time, and, if no time has been fixed, on the expiration of a reasonable time". However, during the period - the equipment was out of the plaintiff's possession it became subject to the lien mentioned above. In these circumstances thedecision Inre Ferrier, ex parte The Trusteev. Donald(\944) 1Ch.-295 isinpoint. The facts are shortly stated in the headnoteas follows : "In November 1941, articles of furniture were delivered by a dealer to X, "on sale for cash or return" within a week. Two days after the delivery of the goods execution was levied on thegoods of X., on behalf of two creditors,and thearticles were seized : Held that after the date of execution X. had not retained the articles within the meaning of s.18, r.4(
- b)of the Sale of Goods Act 1893(sees.19
(3)and 24of the Sale of Goods Law Cap. 267), so that they never became her property and the dealer was entitled to them". Morton J. held at p.297 "The event which is referred to in sub-section 4 of section 18 (sec.24) never happened, and the goods simply remained goods which had been sent on sale or return and which never became the property of Mrs. Ferrier" (X). The Court held that the plaintiff was entitled to damages for breach of contract. This decision is clearly in accord with the general rule stated in Chalmcr's Sale of Goods (13th Ed. 1957) at p. 74 "When goods arc sent on trial. or tin approval, or on sale or return, the clear geneial nile is that the properly lemams in theseller till the buyer adopts the transaction. Hut it is quite competent Ιοιhe paι lies io ayrec ιhat the properly shall pass to the buyer on delivery, hutthat, if lie does imt approve the i:oods, the piopcitv shall then revest in the sellei. To Use the language of coiiiinenlal lawvcis, the condition on which the goods are delivered may be either suspensive or resolutive". Here there was no agree ment to suspend the effect of the general rule. 255 1M2 Oct23 MlIHAKSM SDMI V. DEMOS DRYMIOTIS Wilson, P. 1962 Oct. 23 MUHAREM SlDKI V. DEMOS DRYMIOTIS Wilson, P. . The appeal must, therefore, beallowed. Rather than direct a new trial to permit the plaintiff to claim damages with liberty to amend pleadings we think the interests ofjustice will best beserved ifweassessthe plaintiff's damages at £1,theamount of the mechanic's account andin addition 500 mils, the costs of transporting the equipment back to hisplace of business, making a total of £1.500 mils. The real amount involved is so small the parties might well have settled their dispute without coming loCourt. For this reason each will bear hisowncosts throughout. Appeal allowed, each party to bear his own costs throughout. 256