BHUNU J: The
plaintiff is the owner of Adelina farm in the Featherstone area where he is in
the business of raring Brahman cattle since 1999. His claim against the
defendant is for the payment of US$9 086 being the balance of the purchase
price of 26 steers sold and delivered to the defendant. That claim was
eventually reduced to US$8 738 on account of the non delivery of one beast that
bolted and escaped during the loading process.
On the other hand the defendant is a
business man who is in the business of selling meat from cattle he would have
purchased from various farmers.
It is common cause that some time in
February 2009 the parties concluded a contract of sale wherein the plaintiff
sold 26 herd of cattle to the defendant. It is also not in dispute that one of
the beasts bolted and evaded delivery during the loading process. The parties
are also in agreement that the plaintiff took delivery of the 25 herd of
cattle, slaughtered them and sold the beef but without paying the full purchase
price.
When the plaintiff started to press
for payment, the defendant initially acknowledged his indebtedness to the
plaintiff both verbally and in writing on numerous occasions and in front of
witnesses. It is only after he had failed to honour his undertakings to pay
that he started raising all sorts of subterfuge in a bid to avoid payment.
The contract was concluded through
the defendant's agent one Farai Muzondiwa. Farai visited the farm on 21
February 2009 where he negotiated the terms of the contract with the plaintiff.
Having seen the cattle on sale and at the conclusion of the negotiations Farai
wrote an invoice which he signed and endorsed his national identification
number.
The invoice which was produced in
evidence as exhibit two reads:
“Steers
26 total mass of 9914 kg at $1.32 per kg. Total $13 086, 48”
On 2 March 2009 the defendant
effected payment of $3 000.00 in partial fulfillment of his obligation under
the contract. He proceeded to sign on the same invoice that is to say exhibit 2
without raising any objection. He promised to pay the balance within a week but
defaulted. After dilly dallying he made another payment of $1 000.00 pleading
hardship in raising the money. He again signed on the invoice without raising
any objections. He again pleaded hardship in raising the balance with his
bankers.
The parties exchanged text messages
as will more fully appear from exhibits 3 and 4. Exhibit 4 is a transcript of
various text messages the defendant sent to the plaintiff acknowledging his
indebtedness to the plaintiff and promising to pay. It is beneficial to
reproduce the text messages for clarity's sake and to bring the matter into its
correct perspective.
|
Date
|
Time
|
Message
|
|
5
/ 03 / 09
|
05:08
|
Today
is a terrible day chief. Money to be delivered at 11 a m Monday. Very sorry
about that. I was very confident to withdraw with no problems today
|
|
5
/ 03 / 09
|
05:51
|
I
know I am sorry. It is beyond me. Ordinarily you could have been paid long
back
.
|
|
11
/ 03 / 09
|
04:19
|
Had
to dash out of town briefly, please give your bank details to Onano or Joseph
at Stanbic Bank Park Lane, Business banking. Its at Nssa Building.
|
|
12
/03 / 09
|
01:24
|
When
transfer has been done , you will be the first to know because it is your
money.
|
|
12
/ 03 /09
|
01:28
|
Not
able at all. It seems I am a mark. Everyone trying to get money from me one
way or the other. It is really getting to my head now.
|
|
12
/ 03 / 09
|
02:03
|
Told
you that I am paying you, but my spread is not good enough for you. I am also
awed tens of thousands of dollars by other corporates and it runs into
months. In these times, patience in business is critical.
|
|
12
/ 03 / 09
|
03:09
|
Working
on it. Doing my best and will call you. Transfers will be instructed though.
|
|
12
/ 03 / 09
|
07:48
|
Have
a safe trip chief.
|
|
19
/ 03 / 09
|
02:57
|
I
had the way you are going round tarnishing my name. I have advised my Lawyers
and we are suing for defamation. You send the matter to lawyers and they are
handling it. There is no need for what you are doing.
|
Both in his summary of evidence
defence and sworn evidence in Court the defendant made no attempt to challenge
the veracity of the above numerous admissions he made to the plaintiff. His
defence was simply that the plaintiff sold him beasts of poor quality resulting
in him making a loss of $6 543.00. He thus claimed a reduction of the purchase
price by that much.
The plaintiff however pointed out
that the defendant had admitted liability and never questioned the quality of
the product he was buying until he was pressed for payment. This is what the
plaintiff had to say according to my long hand notes:
“We were
exchanging SMS. This is an extract of the SMS I was sending to the defendant.
(Marked Exhibit 3).
Defendant was
responding sending me SMS. This is an extract of the text messages I was
receiving from the defendant. (Marked Exhibit 4).
Defendant never
complained to me about the quality. Even his agent wrote on the invoice that I
had sold him steers. The sale was based on the quality that he had seen.”
It is an established fact beyond
question that the sale was based on the quality of beasts that the defendant
had seen either through his agent, personally or both. If the defendant had any
queries he should have raised them either through his agent or before
slaughtering the beasts. At the very least he should have raised the issue with
the plaintiff before selling the meat.
The essence of the defendant's
defence is essentially that he is trying to negotiate the price of the
commodity long after the contract has been concluded and the other party has
already performed his part of the bargain. It is not the function of the Court
to set contractual terms. If the defendant made a poor bargain then, he is stuck
with it. That being the case, it is irrelevant to try and determine the quality
of meat which has already been sold and can no longer be retrieved for
assessment.
The plaintiff was an honest and
credible witness who told a simple and believable story. I accept his evidence
without any reservation. On the other hand the defendant displayed the
demeanour of a dishonest and devious character who told an incredible
fictitious story not worth of belief.
In the result the plaintiff's case
can only succeed. It is accordingly ordered that judgment be and is hereby
entered in favour of the plaintiff in the sum of US$8 738.00 (Eight Thousand
Seven Hundred and Thirty-Eight United States Dollars together with costs of
suit.
Mapombere, Musakana & Ruzengwe, the Plaintiff's Legal
practitioners.
Sawyer & Mkushi,
the Defendant's Legal Practitioners
