clr/1982/1982_1_287.pdf

(1982)to pay the said amount was not pleaded in either the claim, thedefence or thecounterclaim. On the other hand therespondent byhisappeal disputed thefindingsof fact of thetrial Judge and claimed that on the basis of the written contract he was entitled to the full purchase price. 5 In spite of appellant's position about the pleadings both parties led evidence to the effect that the original agreement was altered and the Court had evidence suggesting the true amount thatwaspayablebytheappellant totherespondent; and the question which arose waswhether the Court of Appeal 10 should reverse thejudgment or whether, taking into consideration the circumstances ofthis case and provided it comes to the conclusion that such allegations ought to have been pleaded, it could uphold the judgment and direct, in accordance with Kemalv. Kasti, 1962 C.L.R. 317 that an amended statement of 15 claim should befiled,or whether on the pleadings as they stand there was no room to hold that such conclusion was open to the trial Judge. Held,that no reason has been shown to interfere with the findings of fact made by the trial Judge; that on the pleadings 20 as they stand and in particular the contents of paragraph 5 of the defence admitting that the net amount collected by the appellant-defendant was £941.360 mils and which he does not claim to beentitled to retain, this Court issatisfied that the case is sufficiently covered by the pleadings and that in the light 25 of the evidence adduced, without any objection, the parties, and the appellant-defendant in particular must betaken to have assented to have his rights decided in the way they were done; that otherwise they would have objected to the admission of this evidence, the whole matter having obviously been treated 30 asa mere technicality orjust a development of what had already been averred, and does not appear to haveembarrassed or taken the appellant, who now complains about it, by surprise; that, therefore, an amendment of the pleadings is not necessary in the circumstances otherwise such an amendment could have 35 been ordered(seeKemalv.Kasti (supra));accordingly the appeal must be dismissed. Appeal dismissed. Cases referred to: Kemal V. Kasti, 1962 C.L.R.

1. 288 40 1 C.L.R. Stylianou v. Manolis Appeals. Appeals by plaintiff and defendant against thejudgment of the District Court of Limassol (Pitsillides, S.D.J.)dated the20th November, 1976(Action No. 3572/75) whereby the defendant 5 was ordered to pay to plaintiff C£741.360 mils in an action for the balance of the sale price ofplaintiff's 1975crop of sultana grapes. P. Cacoyannis, for the appellant-defendant. E. Odysseos, for the respondent-plaintiff. i0 Cur.adv. vult. TPIANTAFYLLIDES P.: The judgment of the Court will be delivered by Mr. Justice A. Loizou. A. Loizou J.: The appellant—defendant at the trial—was adjudged to pay to the plaintiff (hereinafter to be referred to 15 as the respondent), the sum of C£741.360 mils with interest thereon at4%p.a.asfrom the20th November, 1976,tothedate of payment, on an action instituted by the latter by which he claimed C£2,000.—balance of the agreed price of C£2,200.— for the sale to the appellant of the 1975crop of sultana grapes 20 to be found in hisvineyard at Zakaki village on the terms of a written agreement entered into between them on the 22nd July,
2. An amount of C£200.—was paid upon thesigning of the said agreement and the balance wasagreed to be paid upon taking 25 delivery of the crop. The appellant, however, did not pay it as he claimed that the said grapes were found to have been affected bythe disease gray mould, locally known as "votritis'1, which caused them to crack and on account of that they were in such a state that they were unmerchantable and unfit for 30 export, thepurpose for which they were intended, to the knowledge of the respondent; and also on theground that they were not in accordance with the relevant clause of the agreement of sale. This agreement is one of those printed forms which, as it 35 appears from the terms contained therein that have been to a great extent struck out, ate used for the sale of citrus fruit. After giving the names of theseller and purchaser and the kind as being grapes (sultana) there follows the following: 40 "QUANTITY right : All the crop (koutourou) with a to the seller 10% more or less. 289 A. Loizou J. Stylianou τ. Manolis

(1982)QUALITY : Subject merchantable, suitable for export in accordance with the Export Law. PRICE : C£2,200.—{two thousand two hundred pounds). TIME OF DELIVERY : As from the 15th October, until the 31st December at theoption of the purchaser. DOWN PAYMENT : C£

1. PAYMENT : Upon taking deliver/'. The words underlined hereinabove are the handwritten ones, the rest are part of the printed form. It was thecase for therespondent thathefilledin thisprinted form and crossed out the inapplicable parts thereof but by mistake hefailed tocross outthewhole clause undertheheading 15 "QUALITY". In support of this contention it was pointed out that another clause under the heading "TIME OF DELI­ VERY" which is a printed one, it is stated that same would be "from the25thOctoberuntilthe31st Decemberatthediscre­ tion of thebuyers" andthoughclearly inapplicableas thegrapes 20 sold to the appellant should be picked within six days from the date of the contract,yet same was by inadvertence not crossed out. Also it was urged that another obvious inaccuracy is the noncrossing out of the words "with a right to the seller 10% more or less", which comes in conflict with the preceding 25 handwritten phrase "all the quantity (koutourou)"which word "koutourou" incidentally may be translated "at random" or "as they are roughly estimated", or "as they may be found to be". In fact, the appellant agreed in evidence that these two parts 30 of the printed form of the agreement should have been crossed out by the respondent but by mistake, as he said, he did not notice that they were left to stand. He denied, however, that the clause under the heading "QUALITY" should have been crossed out and according tohim therespondentknew that the 35 grapes were intended for export and that he was buying same for that purpose. 290 5 10 1 C.L.R. Stylianou v. Manolis A. Loiiou J. The appellant started picking grapes and his first delivery of sameto thePacking Housewasonthe28thJuly,
2. The Government Produce Inspectors, however, rejected this load, except 175 okes on account of the said disease. It was the 5 version of the appellant that thereupon he protested to the respondent who attributed their condition to their proximity to the cypress treesand suggested that the appellant might pick grapes away from the trees which the latter did but again the grapessopickedwererejected for thesamereason. Therespon10 dent thereafter assured him that he was going to spray them as advised by an expert in order to stop the disease and they agreed to settle the matter so that the appellant would pick and dispose of the grapes for sale and pay the respondent the balance left after deducting all his expenses. It was after this 15 alleged new agreement that the appellant on the 29th, 30th and 31st July cleared the affected grapes. The respondent then sprayed his vineyard for three to four days with chemicals but as such spiay would be dangerous to the labourers picking was resumed on the 19th and completed 20 on the 29th August. The appellant thereafter sold the grapes, went to the house of the respondent in order to pay him C£741.360 mils, the balance left after deducting from the proceeds of the sale of the grapes being C£l,343.360 mils, the sum of C£402.—his expenses, and C£200.—the downpayment, 25 but the respondent did not accept such a deduction; he was, however, prepared to deduct only C£500.—from the balance of the C£2,000.—of the contract price. The learned trial Judge found as a fact that because other clauses in the said contract had to be crossed out and as that " 30 wasnot donebyinadvertence, that did not mean that theclause regardingthequalityofthegrapesshouldhavealsobeencrossed out. He said that it was a material part of it and same was not repugnant to the word "koutourou", since this word'was found in the clause as to quantity, whereas if it was intended 35 to refer to quality, also this clause would be repugnant to the clause as to the payment of the balance of the purchase price whichbythecontractwasmadepayableondeliveryofthegrapes and obviously this was because the appellant would not pick all the grapes on the date when the contract was made. But 40 clause as to quality clears the repugnancy which would have 291 A. Loizou J. Stylianou v. Manolis existed without it. In other words as he put it the two clauses "as to quality and payment of the balance go side by side in this respect and unless the word 'koutourou' was intended to refer only to quantity, it would be repugnant to both these clauses. In view of the above", he concluded, "I believe that the woid 'koutourou' was intended to refer only to quantity and not to quality. Its meaning isrestricted in this case because the Court has a duty to make an effort to give effect to every clause in the contract and to try and save it".

(1982)5 Having reached the conclusion that therespondent wasrespon- 10 sible for the qualit*of the grapes,the trial Judge then proceeded to examine the question whether same was at the time of their contract of the quality agreed upon. From the evidence adduced he believed that the grapes found diseased only six days from the day when the contract was made and for which 15 ample credible evidence was adduced by the appellant and his witnesses, including Mr. Tsakistos, (P.W.2), and concluded that the respondent-plaintiff breached the clause regarding quality and held that at the time the contract was made neither delivery of the grapes was made nor the property in them passed 20 to the defendant. After referring to the law as to the passing oi propeity in goods sold, he said: "Therefoie, the plaintiff' is responsible foi the disease of the grapes which «it the time of the contract was a latent 25 defect and not only would he not succeed in this action but he would be answerable to the defendant in damages as pei the counterclaim had the parties not Oially agreed to alter their contract as to the price payable by the defendant to the plaintiff'. Bythis subsequent agreement which, 30 according to the defendant altered their contract, was made when he discovered the disease of the grapes after hepicked only one pick-up load and before he took delivery of the majority of the grapes and I believe that it is because of this subsequent agreement that the defendant, instead 35 or rejecting them for breach of the condition of the contract as to quality in view of their being unfit for export, he proceeded to execute fully his part of the contract". And then the learned trial Judgewent on to say the following: "The defendant could, under sub-section 2 of section 12 40 292 1 C.L.R. 5 10 15 20 25 30 * 35 Stylianou v. Manolis A. Loizou J. of the Sale of Goods Law, Cap. 267, treat their contract as repudiated and he then also could, under sub-section 1 of section 59 of the said Law, either (

1. a)claim diminution or extinction of the price, or (
2. b)damages for the breach. The defendant, however, elected not to treat the contract as repudiated but he elected to go throughwith it as altered. Therefore, he cannot claim damages under the last men­ tioned sub-section; but he could claim diminution of the price, not under this sub-section in which repudiation is a necessary ρre-requisite, but under their subsequent oral agreement. Thus defendant's counterclaim should fail. According to the defendant, this subsequent oral agree­ ment was that the defendant would dispose the grapes for sale and to pay to the plaintiff the balance left after deducting from the total sum he would collect all his expenses". The appellant-defendant, by his present appeal challenges only that part of the judgment by which the learned trial Judge decided that the parties agreed to amend the agreement between them, dated the 22nd July, 1975, with regard to the price to be paid by him for the grapes and thatby virtue of this amended agreement his counterclaim was dismissed and he was adjudged to pay as above, instead of adjudging the respondents to pay damages for breach of contract about the quality of the grapes sold by virtue of the agreement as per his counterclaim. One of the arguments advanced is that this agreement on the basis of which the appellant was adjudged to pay C£741.360 mils. balance of the purchase price, was not pleaded in either the claims, the defence or the counterclaim. In spite of this alleged position of the pleadings both parties led evidence to thateffect and the Courtwas faced with evidence suggesting the true amount that was payable by the appellantdefendant to the plaintiff at the end of the day, and the question arises whether, we, on appeal should reverse that judgment, or whether taking into consideration the circumstances of this case and provided we come to the conclusion that such allega­ tions ought to have been pleaded we could uphold the judgment and direct, in accordance with the authority of Halil Kemal v. Georghios M. Kasti, 1962 C.L.R. 317, that an amended 293 A. Loizou J. Stylianou v. Manolis

(1982)statement ofclaim shouldbefiledbefore recoveryof theamount which the appellant was adjudged to pay, or whether on the pleadingsastheystand therewasroomtohold that suchconclusion was open to the trial Judge. The respondents by their appeal dispute thefindingsof fact 5 of the trial Judge and claim that on the basis of the written contract between them and the appellant they were entitled to the full purchase price inasmuch as the word "koutourou" "at random" referred not only to the quantity but also to the quality of the purchased grapes. 10 Having heard the able arguments of both sides and gone through thejudgment and theevidence adduced, wehavecome to theconclusion that noreason has beenshown foi ustointerfere with the findings of fact made by the trial Judge and his approach as a whole both on the claim and the counterclaim. 15 On the contrary, we aTC satisfied that theie has been a valid oral variation of the original agreement as regards the amount to be paid for the grapes purchased under it and actually collected, and which was acted upon and the purchaser incurred obligations thereby to pay to the seller the money 20 that he has been adjudged to pay under the judgment. We do not accept the contention ofcounsel for the appellant/defendant that there was no new agreement concluded between the parties, but only negotiations with a viewto a settlement which could not be the basis of.an adjudication. 25 In our view, as a result of it there has arisen an obligation on the part of the appellant/defendant to pay to the respondent themoneyreceivedfrom thecollectionanddisposal ofthegrapes of the respondent/plaintiff which money cannot be retained bythepurchaser. In fact thiswasthemostfavourable approach 30 the learned trial Judge could reach on the evidence as accepted by him and also born out from the written contract, exhibit 1. Moreover on the pleadings as they stand and in particular the contents of paragraph 5, of the defence admitting that the net amount collected by the appellant/defendant was £941.360 35 mils and which hedoes not claim tobeentitled to retain,weare satisfied that the case is sufficiently covered by the pleadings and that in the light of the evidence adduced, without any objection, the parties, and the appellant/defendant in particular 294 1 C.L.R. Stylianou v. Manolis A. Loixou J. must be taken to have assented to have his rights decided in the way they were done. Otherwise they would have objected to the admission of this evidence, the whole matter having obviously been treated as a mere technicality or just a develop5 ment of what had already been averred, and does not appear to haveembaiassed or taken the appellant, who now complains about it, by surprise. Therefore we do not think that any amendment of the pleadings in any material respect is necessary in the circumstances 10 otheiwise wecould have ordered such an amendment in order to make it conform with the judgment of the trial Court and our judgment on the basis of the principles expounded in the case of Halil Kemalv. Georghios M. Kasti (supra). For all theabovereasons both appealswhichhavebeenheard 15 together are dismissed and in the circumstances we make no older as to costs. Appealdismissed. No order as tocosts. 295