J. C. 1866 PAGE v. COWASJEE wreck, and the Master, in the circumstances, properly sold her; Cambridge v. Anderton (1); Farnworth v. Hyde. (2) The memorandum of sale, signed by the authorized agent of the Respondent, was, in the absence of fraud, the only admissible evidence of the terms upon which the Appellant sold and the Respondent purchased EDULJEE. the ship; Acebel v. Levy (3); Hochster v. De La Tour (4). Up to the time of the signing of the memorandum of agreement there was not a complete contract of sale under the law of the Island. Ceylon Ordinance, No. VII., of 1840, which, by clause 21, part 3, requires either a written contract, signed by the parties making the same, or by some person thereto lawfully authorized by him, on the delivery of the whole or part of the thing sold, or on payment of the whole or part of the purchase money. The case of Martindale v. Smith (5), cited by the learned Chief Judge in the judgment of the Supreme Court, is not in point. That was an action of trover for goods sold but not delivered, after part payment of the purchase-money in pursuance of an agreement executed at the time of sale, which fact differs from the present case; Milgate v. Kebble (6). There is no implied warranty of title in the contract of sale of a personal chattel; that was held in Morley v. Attenborough (7), Eichholz v. Bannister (8). The evidence shews that the Appellant had been at all times ready and willing to carry out the terms of the contract, and that the Respondent had made such default as entitled the Appellant to proceed to a re-sale at his risk: Hadley v. Baxendale (9). According to the conditions of sale appended to the memorandum, the purchaser was bound by the contract executed, and the ship being a wreck, there was a right of re-sale without any special clause to that effect. Chinerey v. Viall (10) shews what may be the measure of damage. The re-sale of the vessel was not a rescinding of the original contract; Stephens v. Wilkinson (11); Fitt v. Cassanet (12); Gillard v. Brittan (13); Greaves v. Ashlin (14). A clause J. C. 1866 PAGE V. of re-sale is usual in sales in the East Indies; Chitty on Contracts, p. 391 (7th Ed.); Blackburn on Contracts of Sale, p. 329. With regard to the objection to the non-delivery of the Register, that was not requisite, as under the 53rd section of the Merchant EDULJEE Shipping Act, 17 & 18 Vict. c. 104, the certificate of a ship lost, or ceasing to be a British ship, must be delivered up to the British Consul of the nearest port, to be transmitted by him to the port of Registry: Maclachlan on the Law of Merchant Shipping, p. 80. COWASJEE Mr. F. Stiffe Everitt, for the Respondent : First, the contract for sale was complete upon the purchase, the Respondent being declared the highest bidder, and that being so, the conditions appended to the printed catalogue, read at the auction, were the conditions subject to which the Respondent bought, and not the conditions substituted at the time of the signing of the memorandum of purchase by the Respondent's agent on his behalf. There was no right of re-sale in the conditions under which the Respondent purchased. All the Appellant was entitled to, if he had any remedy, was to affirm the contract, if it was one of sale, and bring an action for the balance of the purchase money; but even that remedy was abandoned by the Plaintiff's resuming possession of the hull of the ship and re-selling it; and the claim made to recover the difference of the original purchase money, allowing for the amount realized by the re-sale, cannot under any circumstances be supported. On the contrary, the Respondent was entitled, and was rightly so held by the Court below, not only to have the contract rescinded, as null and void, but to the damages claimed by him in his answer for the breach of it by the Appellant; Hagedorn v. Laing (1); Martindale v. Smith (2); Maclean v. Dunn (3). As to the general power of re-sale in case of repudiation of the contract, all the authorities are collected in Addison on Contracts, pp. 205-6 (5th Edit.). The sale of the ship by the Master, without the consent of the owner, could only be justified by proof of urgent circumstances, which proof is not afforded here. The "Margaret Mitchell" (4); The “Bonita” (5); (1) 6 Taunt. 162. (2) 1 Q. B. 389. (3) 4 Bing. 722. (4) Sw. 382. (5) Lush. 252. Tudor's Leading Cases on Mercantile and Maritime Law, 530 et sec. Secondly, the mode of pleading, though by the English procedure may be thought inconvenient, is in accordance with the practice prevailing in the Courts in the Colony, being founded on the Roman-Dutch law which is in force in Ceylon, and which law allows a counter claim by reconvention, such as is made by the Respondent's answer; the decree, therefore, is consistent with both the law and practice of the Colony. It is not necessary now to insist on the non-delivery of the Ship's Registry, because the whole transaction, with respect to the sale, was vitiated by the act of the Appellant. Their Lordships' judgment was delivered by LORD CHELMSFORD : This is an appeal from a judgment of the Supreme Court of Ceylon reversing a judgment of the District Court of Colombo in favour of the Appellant (the Plaintiff in the suit), and ordering judgment to be entered for the Defendant (the Respondent), with costs. The action was brought in the District Court to recover the balance of a sum of £1,020, the amount at which a stranded ship called Nova Scotian was sold by the Plaintiff, the Master, and purchased by the Defendant under the following circumstances. The Nova Scotian had arrived at Colombo in the month of December, 1862, and was lying there at anchor with a cargo of rice on board, when, on the 18th of that month, she was driven from her anchorage and stranded on the beach near the harbour. Before her stranding the Nova Scotian appears to have been worth £9,000, and she was under insurance for £7,000, but the Plaintiff thought that her back had been broken by the stranding, and in his opinion it would have cost from £1,500 to £2,000, to get her afloat again. Under these circumstances the Plaintiff caused two surveys to be held on the Nova Scotian, and acting upon the judgment of the Surveyors, and under their advice, he advertised her, with her tackle and apparel, for sale by auction on the 2nd and 3rd days of January, 1863. J. C. 1866 PAGE v. COWASJEE 1866 Feb. 21. J. C. 1866 PAGE v. COWASJEE The sale took place on the days named. The property sold was arranged in sixty-eight lots, the vessel being the last lot in the catalogue, and was offered for sale separately from her sails, stores, spars, hawsers, and rigging, which were included in prior lots. The catalogue of sale was headed "Catalogue and particulars of the sale of the ship, Nova Scotian, of Liverpool, 999 tons, built 1860, as she now lies stranded opposite the Racket Court, condemned on survey to be sold on account and for the benefit of the concerned, with all her sails, stores, &c." The conditions of sale were printed at the foot of the catalogue, and were read out in the room by the Auctioneer before the sale commenced. By one of these conditions a deposit of 25 per cent. was to be made on each lot, by another, all goods were to be at the risk of the purchaser from the time of sale, and by a third, all customs' duty was to be paid by purchasers. The Defendant's son-in-law attended the sale, and by his authority bought several of the lots, consisting of the tackle, sails, spars, and other articles belonging to the vessel, and the vessel herself was afterwards knocked down to him at the sum of £1,020. No memorandum was signed in the auction room either by the Auctioneer or by the Defendant's agent; but after the sale (whether on the same or a subsequent day does not appear) the Defendant's son-in-law, on his part, and the Auctioneer on behalf of the Plaintiff, signed a memorandum to the following effect. [His Lordship read the memorandum, ante p. 129.] The conditions referred to in this memorandum, which were on the other side of the paper, varied from the conditions read out in the auction room in these particulars. Instead of a deposit of 25 per cent. the purchaser was to pay only 10 per cent. There was no condition that the goods were to be at the risk of the purchaser from the time of sale. The purchaser was to pay the Auctioneer's commission as well as customs duty, and this important condition was added:-" Should the purchaser neglect or fail to comply with these conditions, his deposit money shall be forfeited, and the sale may be enforced, or the vessel may be re-sold at the option of the vendors, and in case of a re-sale, the increase (if any) of the purchase money shall be retained by the vendors, and the deficiency (if any) and all costs and expenses shall be made good by the defaulter at the present sale, and be recoverable as liquidated damages." There is conflicting evidence as to whether these conditions were read out when the memorandum was signed. The Defendant's son-in-law, who signed for him, stated in his evidence that he "signed the memorandum while it was lying on the table, and did not know what was underneath." That "the only conditions which he knew anything about were those attached to the catalogue." The Defendant undoubtedly thought the sale was to be completed by his signing a memorandum upon the conditions contained in the catalogue, as appears from the fact of his having paid £250 immediately before the memorandum was signed, being a deposit of 25 per cent. upon the purchase money, in accordance with those conditions. It was also proved that when the £250 was paid a receipt was asked for, and the Auctioneers replied that it was unnecessary, as the memorandum to be signed would be enough, a representation which would materially strengthen the belief of the Defendant that the conditions contained in the catalogue were those to which his purchase was subject. The Defendant having received authority from the Auctioneers, went himself to take possession of the vessel, and directed two anchors to be put out, to prevent her drifting further on the shore. On the 8th of January he received a notice from the Board of Health to discharge the cargo of rice, which had become heated and was occasioning a nuisance. This not having been done, the Board proceeded to destroy the vessel by firing into her. A bill of sale was prepared by the legal agent of the Defendant, but before it was tendered for the Plaintiff's signature, a demand was made upon him to deliver the certificate of Registry to the Defendant. The Plaintiff refused to comply with this demand, on the ground that the vessel having become a wreck, it was his duty to give up the certificate to the Collector of the customs for transmission to England under the provisions of the Merchant Shipping Act, 1854. On the 12th of January, 1863, the Auctioneers, Messrs. Ledward & Co., wrote to the Defendant the following letter:-" We have the honour to annex on the other side the particulars of the balance of our claim on account of the sale to you of the ship J. C. 1866 PAGE v. COWASJEE |