POLAK & ANOR V. COHEN (NIGERIA) LTD.

• Pages: 238-243

238

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NIGERIAN SUPREME COURT CASES

[1969] N.S.C.C.

POLAK & ANOR V. COHEN (NIGERIA) LTD.

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5

1.

M.L. POLAK

2.

ZOON NAAMLOZE VENNOOTSCHAP

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APPELLANT

V

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10

GEORGE COHEN (NIGERIA) LIMITED

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RESPONDENT

SUIT NO.

SUPREME COURT OF NIGERIA

COKER,

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Ag. C.J.N.

LEWIS,

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J.S.C.

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15

FATAI-WILLIAMS, J.S.C.

27th June, 1969.

Commercial Law - Contract - Remedies - Damages - Measure of damages -

Non-delivery of quantity "more or less" a given percentage - Damages limited

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to least quantity within percentage unless variance is at buyer's option -

Option as to quantity to be exercised as contract provides or if no provision

by unequivocal notice - Performance - Contract to supply stated quantity

"more or less".

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Sale of goods - Conditions and warranties - Damages for non-delivery - Quantity.

ISSUES:

1.

What is the effect of an agreement to supply a quantity of goods followed by a

given percentage and the words "more or less at a buyer's option", where the

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buyer validly exercises his option?

2.

Whether a party exercising an option as to quantity in a contract for sale of

goods must give the other party unequivocal notice.

3.

What is the measure of damages for non-delivery of goods where the contract

for their supply states the quantity, followed by a given percentage "more or

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less"? Is the measure of damages the same where the variance so allowed is

"at buyer's option"?

FACTS:

The plaintiffs brought an action in the High Court of Lagos against the defend-

ants to recover general and special damages for the defendant's breach of con-

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tract. The defendants contracted to sell goods to the plaintiffs stating the quantity

as "3,500 tons 100% more or less at buyer's option".

The plaintiffs then requested the defendants to inform them whether they could

supply 4,000 tons or 3,850 tons, and the defendants accepted the figure of 3,850

tons, 10% over 3,500 tons. The defendants supplied 3,586 tons and the plaintiffs

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instituted the present proceedings, claiming special and general damages for

breach of contract.

The High Court dismissed the action, holding that a condition for the suply of

a stated quantity "10% more or less" being for the protection of the seller, the de-

fendants were only bound to supply 3,500 tons.

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On appeal, the plaintiffs/appellants contended that the defendants were bound

to supply the quantity demanded up to a limit of 10% above the stated quantity, the

condition here being at the buyers option and not for the protection of the seller.

The defendants/respondents however contended that the condition should have