JUDGMENT OF LUTTERODT J.
The plaintiff, who at the date of the issue of this writ described himself as a lotto agent, has sued out this writ for an order of specific performance of a contract of sale of a Nissan Homer bus or in the alternative damages for breach of contract.
The plaintiff claimed in paragraphs (3), (4) and (5) of his accompanying statement of claim that (1) a firm contract for the sale of the vehicle was concluded between him and the defendants, a firm dealing in motor vehicles on 29 June 1977; (2) that he paid the full purchase price of ¢19,800; and (3) that the defendants promised to deliver the vehicle by 20 December 1977. These were all denied by the defendants. They contended on the other hand that:
(1) No firm contract was ever concluded between the parties.
(2) He did not pay the full purchase price though they admitted he [p.276] did pay the sum of ¢19,000. Their case was that this was on account, i.e. part payment for the price.
(3) They gave no delivery date for the vehicle.
I will therefore in the first place determine whether or not a contract for the sale of a Nissan Homer bus was concluded between the parties. I will have no difficulty in answering in the affirmative. Under our Sale of Goods Act, 1962 (Act 137), s 1(1) a contract "of sale of goods is a contract whereby the seller agrees to transfer the property in goods to the buyer for a consideration called the price, consisting wholly or partly of money." And section 6(1) of Act 137 provides that the price "may be fixed by the contract or may be left to be fixed in a manner thereby agreed, or may be determined by the course of dealing between the parties."
The parties are agreed that the plaintiff offered to buy and the defendants promised to sell him a Nissan Homer 23-seater bus. The matters they are not agreed upon are (1) the price of the vehicle; and (2) the date of delivery.
But the mere fact that there is now a dispute over the price does not mean no contract was formed or that even if one was formed it is negated by the fact that no fixed price was agreed upon. Suffice it to say a price was agreed upon; either it was that which, as alleged by the plaintiff, was fixed at the date of contract, or as contended by the defendants, the price was to be finally ascertained at the date of delivery. By the clear provisions of section 1(1) of Act 137, a contract of sale was entered into between the parties.
It is however crucial to determine which of these two rival
