ERNEST KWEKU ADISI v. FRANS THOMAS DOVE
1923
SUPREME COURT
GHANA
CORAM
- Viscount Haldane.
- LORD DUNEDIN.
- LORd Parmoor
Areas of Law
- Contract Law
- Commercial Law
- Civil Procedure
1923
SUPREME COURT
GHANA
CORAM
AI Generated Summary
Lord Dunedin, delivering the opinion of the Judicial Committee, upheld the decisions of both courts below in a dispute over payment for cocoa supplied under a contract formed by letters exchanged on 22–23 November 1917. The appellant’s initial offer to F. W. Dove, the respondent’s brother, proposed delivery to Accra station and immediate payment upon carting to the Lighterage beach stores, but this term was objected to and the ensuing contract contained no payment clause. Cocoa was delivered and not paid for, prompting the seller to seek “control” until payment; the appellant later permitted shipment and hypothecation to raise funds. The Board agreed that Dove acted as agent for a disclosed principal, rejected the argument that payment was deferred until shipment, affirmed that the ordinary rule is payment on delivery, found no parol variation of written terms, declined to revisit a shortage claim due to concurrent findings, and dismissed the appeal with costs.
[Delivered by LORD DUnedin.]
In this case Mr. Montgomery has put every point which could be put for the appellant,
but their Lordships have no doubt that the view taken by both Courts below was the
correct view.
The action is one for payment for cocoa delivered, and there is no question that the cocoa
was delivered. A question was raised at one time as to shortage; but, inasmuch as that is
a point that really depended upon the credibility of the evidence and on which there were
concurrent findings in the Courts below, it would be impossible for their Lordships to go
into any such matter.
The beginning of the negotiations which led up to the contract is contained in a letter
from the appellant to F. W. Dove, a brother of the respondent, dated the 22nd
November, 19I7, which is in these terms:-
"Please offer 1000 bags of cocoa delivered Accra station at the rate of I2s. 6𝑑. per load of
60lbs. weight. The above contract to be filled up not later than Tuesday next. Upon the
cocoa being carted to Lighterage beach stores, immediate payment of the cost thereof
will be made."
To that letter a reply was sent on the 23rd November, 1917, which did not constitute an
acceptance, but made various suggestions as to modification, and in particular did not at
all agree to the suggestion as to payment being made upon the cargo being carted to the
Lighterage beach stores. That letter was followed by a letter of the same date from the
appellant to F. W. Dove in these terms :-
To that letter F. W. Dove replied on the same day as follows:
There is no question that those two letters taken by themselves form a firm contract, and
upon the face of them, if there was nothing else, they are a contract between the
appellant and F. W. Dove, who is the brother of the respondent. But then it was said that
although on the letters the contract was made between the appellant and the brother of
the respondent, the contract was truly made with the respondent. It does not very much
matter whether the view is taken that the contract was truly made with the respondent,
his brother really being put forward as a sort of nominee or prete nom, or whether the
other view, which is probably the more strictly legal one, is preferred; that the contract
was made with the agent of a disclosed principal. Both the Courts below have come to the
conclusion that the latter
is the true position, and certainly it would be very unusual for their Lordships to disturb
such a findin