Mohsin Abdullah Alesayi v Brooks Exim Pte Ltd

• Jurisdiction: Singapore
• Judge: Yong Pung How CJ
• Judgment Date: 23 July 1993
• Neutral Citation: [1993] SGHC 173
• Docket Number: Suit No 813 of 1986
• Date: 23 July 1993
• Published date: 19 September 2003
• Year: 1993
• Plaintiff Counsel: Margaret Neo Kee Heng (Joseph Hoo Morris & Kumar)
• Citation: [1993] SGHC 173
• Defendant Counsel: P Sivakumar (Wee Ramayah & Partners)
• Court: High Court (Singapore)
• Subject Matter: Commercial Transactions,Whether goods received corresponded with sample,Exemption clauses,Whether goods received fit for purpose for which plaintiff required them,Sale by sample,Sale of goods,Whether goods received corresponded with contractual description,Whether exemption clauses effective to exclude defendants from liability

Cur Adv Vult

This is a claim for damages for breach of contract in respect of the sale of 1,000 dozens of men`s denim jeans. The facts of the case are as follows.

The plaintiff is a wholesaler and importer of garments and textiles in Jeddah in Saudi Arabia. The defendants are a Singapore company dealing in garments and textiles. Both parties first made contact in June of 1983 through a series of telexes culminating in an agreement that the plaintiff would purchase from the defendants 1,000 dozens of men`s denim jeans, Model No MN/101 Lot 28/9681 for the price of US$30,000. The jeans were to be in ten sizes: 26, 27, 28, 29, 30, 31, 32, 34, 36 and 38. On 7 July 1983 the defendants sent the plaintiff a document headed `Contract` which the plaintiff signed. The terms of the contract included the following:

Clause 3:

Any variations in quantity, quality, design, finish, colour, ways, weight, combination, construction to the extent of ten per cent is allowed and agreed.

Clause 10:

Complaints are to be sent by registered mail together with adequate samples within 24 hours from the actual delivery to buyers accompanied by Lloyds and Carriers Survey Reports in respect of the complaints but do not exempt from their obligation to pay for goods received when the respective invoices fall due.

Clause 11:

It is also expressly understood and agreed that the suppliers in this contract are purely shippers in transit and are not responsible for the authenticity of the origin, Brand, Trade Mark, etc neither do the shippers assume any responsibility for the quality quality [sic] and make-up of the merchandise shipped.

Pursuant to the agreement the plaintiff established in the defendants` favour two letters of credit in payment of the price of US$30,000.

On 22 September 1983 the plaintiff received from the defendants 1,000 dozens of jeans. The plaintiff`s purchasing manager, Hussein Mohammed Kassim Yafai (PW2), testified that, upon unloading the jeans received, they were found to be completely different from the only sample pair which the plaintiff claims was received by him from the defendants in June 1983. I will refer to this sample as P3. P3 bore the manufacturer`s label `Lot No 28/9681` as well as the model number `WN/101`. It is the plaintiff`s case that he contracted to purchase 1,000 dozens of jeans in ten different sizes corresponding to the sample P3 only. Therefore all references in the telex exchanges and in the above-mentioned contract to jeans `Style No WN/101 Lot 28/9681` were references to jeans corresponding to that one sample P3. The jeans shipped by the defendants did not correspond to the sample P3 at all.

On 24 September 1983, a survey of the jeans received by the plaintiff was undertaken on the plaintiff`s behalf by Aijaz Ali Khan (PW1), a surveyor for International Corporation for Trade and Contract Services (`ITCS`). ITCS were the surveyors for the defendant`s insurers. PW1 examined a randomly chosen 10% of the jeans and compared them with the sample P3, following which he produced two survey reports. According to the survey reports, the sample jeans P3 were `stiff, finely finished and with permanent crease`. The cutting and stitching were `of standard` and `fine quality material` was used. In PW1`s opinion, P3 represented a highly marketable product, ie it could easily be sold in the market. In comparison, the jeans received by the plaintiff were described as being made of cloth which was `coarse and of a very inferior quality`. It was `very thin`, bore no crease and was `very light in weight in comparison` to P3. The workmanship and finishing of these jeans were described as being `not very up to the mark`. Moreover the sample jeans P3 bore the label `Win Win` whereas the jeans received had no label at all. The said jeans came in only five sizes (26 to 30) whereas the plaintiff had contracted for ten different sizes.

Several telexes were sent by the plaintiff to the defendants stating, inter alia, that the jeans received were not `as per sample` and demanding an explanation. No reply came from the defendants until 8 October 1983 when, by letter of that date, they pronounced themselves `completely shocked` to have received the plaintiff`s complaints and made specific reference to cll 3, 10 and 11 of the contract.

On 23 January 1984 the plaintiff and PW2 visited the defendants in Singapore to attempt to negotiate a settlement. The attempt was unsuccessful. Further communications between the parties also failed to achieve a settlement. On 22 January 1984 the plaintiff commenced proceedings against the defendants.

The plaintiff claims that the defendants were in breach of contract in that they failed to supply goods corresponding to the sample P3; further that they failed to supply goods corresponding to the contractual description; and further that they failed to supply goods fit for the purpose for which the plaintiff required them.

The defendants, on the other hand, contend that the jeans received by the plaintiff were what he had in fact contracted to purchase. According to the defendants, they sent the plaintiff at least two samples of men`s denim jeans, not just one. Thus the plaintiff would have received not just the sample P3 but also another sample which I will refer to as DB4. Somewhat oddly enough, DB4 was apparently also labelled `WN/101 Lot 28/9681` like P3 but, apart from this, it represented another model of jeans altogether. DB4 is important to the defendants` defence because the defendants contend that the plaintiff in fact chose the sample DB4 in preference over the sample P3 and that the jeans received by the plaintiff corresponded exactly to DB4.

The defendants also produced at trial copies of two price lists (which I shall refer to as DB1 and DB2) allegedly sent together with the samples. The two price lists set out the prices of the samples and additional details such as the sizes in which the jeans were available. DB1 refers to a particular model priced at US$33 per dozen and available in ten sizes: 26, 27, 28, 29, 30, 31, 32, 34, 36 and 38; while DB2 refers to another model priced at US$37 per dozen and available in thirteen sizes: 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37 and 38. It is the defendants` contention that DB1 refers to jeans corresponding to the sample DB4 while DB2 refers to jeans corresponding to the sample P3. They argue that having been given a choice between different samples, the plaintiff in fact contracted to purchase jeans corresponding to DB4, ie the model of jeans referred to in the price list DB1; and that he received exactly what he had contracted for. The plaintiff for his part insists that he was only sent one sample and that he never received the two price lists.

Having heard the testimony of witnesses for both parties and having perused the submissions of counsel, I must say that the defendants` contentions cannot be described as other than incredible. The defendants say they sent the plaintiff at least two samples, P3 and DB4. For the plaintiff to place an order therefore, it would have been not merely reasonable but plainly necessary to state in clear terms whether he wishes to purchase jeans corresponding to the sample P3 or to the sample DB4 or perhaps jeans of both models. Since according to the defendants, the two samples suffered the somewhat remarkable coincidence of being both labelled `WN/101 Lot 28/9681`, the plaintiff would have had to specify his choice by laboriously stating the details pertaining to the particular model of his choice, as given in the price lists: for example,...