1966 April 21 [ZCKIA, P. VASSIMAIH-S, JOSLPHIOUS, JJ]. I-'RIXOS CONSTANTINOU. Appellant-Defendant, ί>. v. FYLAKTIS FYLAKTIS MlNA ΜΙΝΑ, Respondent-Plaint ifj. (Civil Appeal No. 4563). Contract —Breach--Claim oj damages for breach of contract of sale of goods—No reason for Appellate Court to interfere with trial Court's finding as to the breach of contract of sale. Damages -Award of damages for breach of contract oj sale of goods Trial Court's omission or error in assessing amount of damages--hsue remitted to trial Court for re-assessment. -' Sale oj'goods—Contract of sale—Breach—See under above. "Contract"' Practice -Costs--Appellate Court's reduction of costs awarded by trial Court in view of amendment oj' pleading applied at late stage of hearing. Pleading —Amendment of statement of claim at thehearing—-Order as to costs—See under " Practice". Rebpondent-plainliff brought an action in the District Court of Nicosia claiming the sum of £592.900 mils as da mages for breach of contract. In his statement of claim the respondent-plaintiff alleged lhat by an agreement in writing dated the 15th January, 1964, the appellant-defendant agreed to buy the respondent-plaintiff's whole beetroot crop at 20 mils per okc. Deliveries were to be made at the appellant-defendant's warehouses between 15th April, 1964 aand 15th May,
- It was further alleged that the appellant-defendant agreed to extend the time of deliveries after the I5lh May up to the time the said appellant-defendant accepted deliveries from other growers. It was further alleged in the said statement of claim that it was an express and/or implied term of the contract that the appellant-defendant would call for deliveries. The respondent-plaintiff further pleaded that although he was ready and willing to deliver the said crop, the appellantdefendant, .in breach of the said agreement and despite repeated enquiries from the respondent-plaintiff, refused 171 FKIXOS CONSTANTINOU 196 ^ Apri121 FRIXOS CONSTANTINOU IK IvLAk'ris MINA to lake delivery of the plaintiffs crop, which perished in the fields. The appcllantsfcfendanl denied the respondenl-pl.iintiffs allegations and alleged thai it was an express and/or implied lcrm °' l n c c o n , r a c l l n a t l n c respondent-plaintiff ought to have informed the appellant-defendant of his readiness to deliver between the dates mentioned above. The appellantdefendant countcrclaimed for damages for the respondentplaintiff's failure to do so. An application for leave to amend the statement of claim in order to bring it into line with the evidence adduced as regards agreement to extend the time of delivery of the crops was applied for at a very late stage of the hearing viz. after the completion of the hearing of the evidence of the three out of the four witnesses called for the defence and was allowed by the trial Court. The trial Court gave judgment for the plaintiff as per claim with costs and dismissed the counterclaim. The defendant appealed. Held, I. As to the breach of contract of sale under consideration : As far as the breach of contract is concerned, we entertain no doubl whatsoever ; from the evidence accepted by the trial Court, no other conclusion could have been drawn other than the one arrived at, and indeed, thereappears no reason for us to interfere with the decision of the Court as to Ihe breach of contract of sale under consideration.
- As to the amount of damages assessed : It appears that the Court did not go into this item of the claim with care because what the plaintiffs were entitled to was the net amount of the beetroots when these were offered at the stores of the defendant. The expert witness spoke about the crop in the field and said it was not less than 40 tons and then the calculation was made on 40 tons at 20 mils per oke.
- As to the order for costs : Having regard to the amendment of the .statement of claim applied for at a very late stage of the hearing, this Court will order a deduction of £20 from the costs allowed to the plaintiff. Appeal allowed inpart. Judgment of the trial Court varied accordingly. Order for costs as aforesaid. 172 Appeal. 1966 April 21 Appeal against the judgment o f the District Court o f N i FRIXOS cosia (Stavrinides, P . D . C l / / e t , D.J.) dated the 18th CONSTANT1NOU December, 1965, ( A c t i o n No. 1371/64) whereby the defenP. dant was adjudged to pay to the plaintiff the sum o f £592.900 FYLAKTIS MINA mils as damages for breach o f contract. G. Tornaritis, for the appellant. A. Pantelides, for the respondent. The judgment o f the C o u r t was delivered by : Z I - K I A , V. :> We have read the record with due care and have also followed the argument and addresses o f learned Counsel with attention. As far as the breach of contract is concerned, we entertain no doubt whatsoever ; f r o m the evidence accepted by the trial Court, no other conclusion could have been drawn other than the one arrived at, and, indeed, there appears no reason for us to interfere with the decision o f the Court as to the breach o f contract o f sale under consideration. The only point which remained was the amount o f damages assessed. It appears that the Court did not go into this item o f the claim with care because what the plaintiffs were entitled to was the net amount o\' the beetroots when these were offered at the stores o f the defendant. The expert witness spoke about the crop in the field and said it was not less than 40 tons and then the calculation was made on 40 tons at 20 mils per oke After deducting certain fertilizers and seed but without any other deduction as to the cost required for placing the goods in a marketable condition, i.e. cost o f uprooting, transport, delivery--no allowance at all for these items-thcy awarded the full amount o f £592.900 mils. T h a t o f course, must be considered as an omission or an error which escaped the attention o\' the trial Court. The parties here do not agree as to any figure to counter this omission. In the circumstances, the judgment o f this Court will be that the judgment o f the trial Court will be varied as follows : The sum awarded as damages is set aside and l l f : caso is remitted to the trial Court for the purpose o f making a fresh assessment, namely for ascertaining the costs that would have incurred for the beetroots to be uprooted 171 1966 A|llil 2 ! ι HISON and transported to the place o f delivery, and having ascertained that amount to deduct it from the amount of the value o f the goods. LONSIANIINOU η I M A M I S MINA The second point which remains is the order for costs. Having regard to the amendment o f the statement o f claim, applied for at a very late stage o f the hearing, this Court will order a deduction o f £20 from the costs allowed to the plain t i f f ; and as to the costs o f this appeal each party will bear his o w n costs. Parties w i l l not be entitled t o any costs in the proceedings before the trial Court for the re-assessment o f damages. Appeal allowed in part. Judgment of the trial Court varied accor dingly. Order for cost as aforesaid. 174