On
30 October 2008, the plaintiff issued summons against the defendants
claiming delivery of certain specified railway sleeper furniture.
In
his declaration, the plaintiff alleged that he and the defendants
entered into an agreement in December 2007, in terms of which the
defendants agreed to manufacture for him certain specified items of
furniture. He further alleged that whilst he had performed his side
of the bargain, by paying the agreed price, the defendants, in breach
of the agreement, had failed to deliver all the items contracted for
leaving the items forming the subject matter of this suit
outstanding. In particular, the plaintiff averred that, in terms of
the agreement between the parties, the defendants would manufacture
and deliver a 7 piece dinning room suite, a side serve, a 3 piece
coffee table set, a 2 piece side board, a 3 piece room divider and a
wall mirror. In breach of the agreement, the defendants failed to
deliver the side board, the room divider and the wall mirror.
The
suit was defended.
In
its plea, the first defendant averred that the plaintiff made
inquiries about the cost of items he required and was given a
quotation which was valid for a limited time. He then made payment on
the quotation outside the lifetime of the quotation, and without
first making reference to the defendant, with the result that the
amount he paid was only sufficient for the manufacture of the items
that were delivered to him.
At
the pre-trial conference of the matter, the parties agreed that the
issues for determination at the trial of the matter were;
(a)
Whether the plaintiff is owed the outstanding items of furniture; and
(b)
Whether the parties varied the agreement between them to the effect
that the defendant would only manufacture the items that it
delivered.
The
matter was thus set down for trial before me.
At
the trial, the plaintiff gave evidence. His evidence was as follows.
He is a businessman. In December 2007, he visited the first
defendant's factory. He was taken around the place and was shown
other items that the defendant had manufactured. He requested the
manager to tailor-make the items that he required. To that end, he
arranged for the manager to visit his flat and take some
measurements.
This
was duly done.
The
manager left him with catalogues from which he and his wife could
select what they thought was suitable. He was given a quotation upon
which he successfully negotiated a discount. He was also given a Bank
account into which he
was to deposit the amount reflected on the quotation. He told the
defendants that he was going to dispose of some shares and that this
would take some time. The second defendant assured him that this
would not pose any problems. As soon as his shares were sold, he
deposited the amount reflected on the quotation into the defendant's
Bank account. He paid the deposit a week or two after the date
appearing on the quotation. When his shares were sold, he told the
defendant that he was going to make the transfer and wanted to know
whether there had been any changes to the prices. The second
defendant assured him that there had been no changes and there would
be no problem with his deposit.
Apart
from the quotation, nothing else was reduced to writing as between
the parties. The witness was shown a copy of the quotation which he
identified. Same was adduced into evidence.
The
plaintiff proceeded to testify that, after some arguments, the
defendant delivered part of the ordered furniture leaving the items
in dispute outstanding. He demanded for the delivery of the remaining
items, firstly, by word of mouth and then by a letter of demand.
In
conclusion, the plaintiff testified that at not time did he discuss
the issue of revisiting the pricing of the order as suggested by the
defendants. He insisted that, after paying the amount reflected on
the quotation, he was entitled to delivery of the outstanding items
even if he paid outside the lifetime of the quotation as he had
advised the defendants that he needed time to sell his shares.
The
witness impressed me as an articulate and confident man. He was very
clear as to what the defendants were obliged to do under the contract
and was keen to see them held strictly to the written terms of the
contract, an attitude that evoked in me memories of passages in the
Shakespearian play; Merchant of Venice.
The
witness was wordy in his responses to questions put to him under
cross-examination and would at all times maintain his stance that he
performed his side of the bargain by paying the contract price in
full.
In
my view, the factual issue that falls for determination in this suit
is whether the parties varied the written terms of the quotation to
allow the plaintiff to make payment of the quoted price outside the
lifetime of the quotation.
On
this point, the plaintiff did not testify with his characteristic
clarity and confidence. His evidence, as detailed above, was to the
effect that that he spoke to the second defendant when his shares had
been sold and asked him if there were any changes to the quotation.
He was told that there were none.
I
did not believe the plaintiff in this regard.
Firstly,
I did not believe him when he testified that he telephoned the second
defendant as he alleges. He did not give the date when he actually
made the payment. He was very vague about it saying it was between
7-14 days after the date of the quotation. The plaintiff is not a
vague man. He is very precise though not always concise. He knows the
date when he made the payment. He simply chose not to tell me the
date. I surmise that he chose not to disclose the date because he
thought it would detract from his case by corroborating the evidence
of the defendants that he made his payment some three to four weeks
after the quotation had lapsed.
Secondly,
it is highly unlikely that the second defendant, when and if
telephoned, would have advised the plaintiff that there were no
changes in the price especially in the environment during which the
contract was concluded. The defendants testified that their
quotations were now valid for 3 days only as prices were constantly
changing. It is therefore highly improbable that, after two or three
weeks, prices on the quotation had remained static.
After
testifying, the plaintiff called one Custon Muchepa (“Custon”).
Custon used to work for the defendants and was the first defendant's
manager at the time. He is the one who prepared and issued the
plaintiff with the quotation. On a date he did not give, the
plaintiff telephoned him to advise that he had made payment on the
quotation. He then received a call from the workshop requesting him
to prepare a bill of materials for work on the plaintiff's order to
begin. He confirmed that part of the plaintiff's order was
delivered and the balance was promised. The balance of the order was
never delivered. Out of frustration and other misunderstandings, he
left the first defendant's employment before delivery of the
remaining items had been made.
On
the material dispute of fact between the parties, Custon Muchepa did
not have any personal knowledge as to whether the parties agreed to
vary the lifetime or validity period of the quotation. He was not
present when the plaintiff allegedly telephoned the second defendant
to establish whether there were any changes to the prices before he,
the plaintiff, made payment. He was simply advised by both that
payment had been made.
The
witness gave his evidence generally well. He however could not
testify on the material fact in dispute in this matter as he was not
present when the two allegedly discussed the issue. Further, whilst
he could give quotations, he was not in charge of the finance
department and would not know why work on the plaintiff's items was
stopped.
In
my view, the evidence of this witness, did not take the plaintiff's
case further than where the plaintiff himself left it.
After
the evidence of this witness, the plaintiff closed his case.
The
second defendant gave evidence on his own behalf and on behalf of the
first defendant. His evidence was as follows;
He
is a Director of the first defendant. He recalls that the plaintiff
came to the defendant's workshop where he was given a quotation.
The quotation was supposed to be valid for three days. The plaintiff
was also given the first defendant's account number for the
purposes of making payment. Prior to the parties concluding the
transaction, the plaintiff informed him that he had funds that were
maturing sometime which he would use to fund the contract. He then
left his manager to prepare the quotation. After three weeks, he
received a report from his manager that the plaintiff had made
payment, by direct deposit, into the first defendant's account. He
checked the account and confirmed the deposit. He then telephoned the
plaintiff and confirmed the deposit. He however advised the plaintiff
that the deposit was now insufficient to cover the order. The
plaintiff, in turn, advised him that he had no further funds and that
the parties should re-negotiate. The first defendant started
manufacturing the items of furniture that the parties had agreed were
equivalent to the deposit. When the plaintiff was advised of this, he
said the parties should discuss the issue further. The defendants
delivered the items that were equivalent to the deposit. After
delivery, he telephoned the plaintiff for a meeting. The plaintiff
insisted that he had paid for the entire order and demanded delivery
of the remaining items.
The
witness gave his evidence well. He did not seek to exaggerate. He was
forthright in his responses to questions put to him under
cross-examination. He impressed me a being honest and truthful.
I
particularly believed him when he testified that he only received the
report that payment had been made from Custon Muchepa, meaning that
he did not speak to the plaintiff before the plaintiff made the
deposit. He thus did not agree to extend the validity of the
quotation before payment was made. His evidence in this regard gains
corroboration from the testimony of Ronald Mpopoma who testified
after him.
Ronald
Mpopoma's evidence was to the following effect;
He
is son to the last witness and works for the first defendant as
Clerk. He confirmed that ordinarily, the defendants were giving
quotations valid for only three days. He thus expected the plaintiff
to make a payment after three days of obtaining the quotation.
Instead, he received a report, after three weeks, that the plaintiff
had made payment on the quotation. The report was made to him by
Custon Muchepa. He then telephoned the plaintiff to come and discuss
the issue. At the meeting, the plaintiff was advised that his deposit
was insufficient to meet his order. It is at that stage that the
parties agreed that the defendants would only manufacture those items
that were equivalent to the amount of the deposit. The parties were
to further agree on the remaining items. On that understanding, the
witness gave the word for work to commence on the plaintiff's
order.
Regarding
Custon Muchepa, the witness testified that he fired him after he
realized that there was an unhealthy relationship between him and the
plaintiff and that the two may have diverted the defendants' jobs
to the competition.
In
my view, the witness gave evidence that was largely common cause save
for the information on how Custon Muchepa left employment. Regarding
the material issue in dispute, he was clear that the plaintiff was
made aware of the insufficiency of his deposit when such was made. In
this regard, he corroborates the evidence of the second defendant in
a material respect.
After
this witness, the defendants closed their case.
In
his closing submissions, counsel for the plaintiff correctly
submitted, in my view, that the first issue I have to determine is
whether or not the parties had a contract, and, if so, what the terms
of the contract were.
In
answer to the questions posed by the first issue, he submitted that
the parties had a verbal contract for the manufacture of the
furniture items specified in the quotation and for the price
stipulated in the quotation.
I
am unable to agree that the parties unconditionally entered into a
contract for the manufacture of the furniture items listed in the
quotation. In my view, the quotation that was issued to the plaintiff
by the defendants was an invitation to treat. It was the offer to do
business with the plaintiff. The terms of the offer were endorsed on
the face of the quotation.
It
may be pertinent, at this stage, to observe that while the defendants
testified that at the time they were issuing quotations valid for
only three days, in casu,
the quotation clearly stated on its face that it would hold for a
week. Thus, notwithstanding their policy in this regard, they were
bound by the period given on the face of the quotation.
In
my view, the plaintiff could have validly made payment within one
week of the quotation and such payment would have bound the
defendants.
The
plaintiff however did not make payment within one week. It is not
clear when he made payment. As observed above, he has chosen not to
take the court into his confidence to reveal the actual date on which
he made payment. He has given the period as between 7 and 14 days.
The defendants have given it as between three and four weeks. I am
none the wiser as to when payment was made.
The
onus lies squarely with the plaintiff to show that payment was made
in terms of the offer made to him. The confusion as to when he
accepted the offer can only be fatal to his claim and not to the
defence.
The
plaintiff has approached the court ex
contractu.
He alleges that he had a binding contract with the defendants. He
further alleges that while he performed his side of the bargain, the
defendants are in breach and should be compelled to perform.
The
foundation of any contact is agreement between the parties. To
establish this agreement, one looks for an offer and the acceptance
of that offer.
In
casu,
it is common cause that the quotation given to the plaintiff
constitutes the offer that was made by the defendants.
It
is the settled position in the law of contract that an offer can
lapse through the effluxion of time. This means that after the time
set in the offer for acceptance has expired, the offer is no longer
open to acceptance for the birthing of a valid contract. The point
was settled in Laws
v Rutherford
1924 AD 261 and has held since. At 262, INNES CJ had this to say:
“Speaking
generally, when the acceptance of an offer is conditioned to be made
within a time limit or in a manner prescribed by the offeror, then
the prescribed time limit and manner should be adhered to.”
In
casu,
the offer was valid for one week. The one week lapsed before the
plaintiff had accepted it. His purported acceptance of the offer,
after the one week, was of no force and effect.
Put
differently and conversely, acceptance of an offer must always
correspond to the offer. If it does not, it constitutes a counter
offer and no valid contract is birthed on the original offer.
The
plaintiff has not, like the appellant in Laws
v Rutherford
1924 AD 261 pleaded that the defendants waived their rights to insist
on payment within the week. He, instead, sought to argue that the
defendants extended the time within which the offer could be
accepted. I have found above that I do not believe his testimony in
this regard. There was no such variation. His offer of the
defendant's offer had to be within a week of the offer. It was not.
Further,
he has not sought to argue that the defendants accepted his
counter-offer to pay the price at his own time.
In
the circumstances, it is my finding that the plaintiff has failed to
establish the contract that he seeks to rely on for an order
compelling the defendants to deliver the remaining items of
furniture. Payment of the price on the quotation made when the offer
was no longer open could not bring about an enforceable contract
between the parties.
In
the result, I make the following order:
1.
The plaintiff's claim is dismissed.
2.
The plaintiff shall bear the defendants costs.
