Court dismissed appeal where appellant's conduct authorized third party to receive payment on his behalf.

[*358] 1967 March 17

(TRIANTAFYLLIDES, STAVRINIDES, LOIZOU, JJ.)

APPELLATE JURISDICTION.

Kyriacos Triteou,

Appellant-Plaintiff,

v.

1. Frixos Constantinou,

2. P. Ioannou & Co.,

Respondents-Defendants.

(Civil Appeal 4604)

Sale of Goods - Appeal against Judgment dismissing claim for sale price for goods (lemons) sold to Respondents by Appellant - Reasonably open to trial Court to treat payment made by Respondents to third person including the sum due to Appellant, a due payment, also, for the goods supplied by the Appellant - Appellant, by his conduct, authorized and enabled such third person to receive payment on his behalf.

E. Odysseos, for the Appellant.

M. Kyprianou, for the Respondents.

JUDGMENT

The Judgment of the Court was delivered by: -

TRIANTAFYLLIDES, J.: In this case the Appellant appeals against a judgment dismissing his claim against Respondents for the sum of £16,800 mils, being the sale price of a quantity of 5,600 lemons which he sold to Respondents.

The salient facts are as follows: - [*359]

On the 26th November, 1964, the Respondents (Respondents 2 being the principals and Respondent 1 being their area agent) - purchased at Kato Pyrgos a total quantity of 39,330 lemons, for which they paid £117.990 mils, at the agreed rate of £3 per thousand lemons.

The said quantity was collected from a number of sellers, including the Appellant, by one Demetrios Aspris, who transported the lemons to the Respondents.

At first the Appellant's case was that the lemons he had sold were not part of the aforesaid total quantity of 39,330 lemons, but a different lot; the evidence, however, of Aspris,who was called as a witness by Appellant's side and who was believed by the trial Court in toto, has put it beyond doubt that the 5,600 lemons supplied by the Appellant were part of the 39,330 lemons collected by Aspris on the 26th November, 1964.

Aspris issued, for the total above quantity of lemons, an invoice, on presentation of which the Respondents duly paid the amount of £117.990 mils, as aforesaid. Such invoice was presented to Respondents by one Savvas Theodoulou Karaviotis, who was himself one of the suppliers of lemons, on the material date, along with the Appellant and others.

The Appellant alleges that he never received from Karaviotis any amount in respect of the sale price of the lemons supplied by him.

Thus, the only substantial issue which arises in this appeal is whether or not the learned trial Judge was right in treating the payment of the amount of £117.990 mils to Karaviotis - in which there was included an amount [*360] of £16.800 mils due to the Appellant - as sufficient payment by Respondents for the 5,600 lemons supplied by the Appellant.

It is quite clear, on the record before us, that the Appellant had been the middleman or local agent of the Respondents in this village, Kato Pyrgos, for some years previous to the transaction in question. So he must have been quite well conversant with the business methods of the Respondents when buying produce at his village and, particularly, he must have known fully well that for produce purchased on the spot an invoice would be issued on presentation of which payment would be made.

The Appellant in his evidence has stated that he knew that Aspris had issued an invoice to Karaviotis for lemons collected at Kato Pyrgos on the 26th November, 1964, and that he himself was not issued with any such invoice.

The Appellant has also conceded in his evidence that a few days later the aforesaid Aspris had told him that he had issued one invoice for the total quantity of lemons collected at Kato Pyrgos on the 26th November, 1964. Appellant deposed, further, that he had demanded payment for his own lemons from Respondent 1 but that he had refused to pay him without the relevant invoice being produced.

There is on the other hand, no evidence at all that the Appellant took any steps whatsoever to notify the Respondents that they should not make payment to Karaviotis for the lemons which he, the Appellant, had supplied, and which were included in the invoice in the hands of Karaviotis. [*361]

In the circumstances, we do think that it was reasonably open to the trial Court to treat the payment made to Karaviotis, by the Respondents, as being due payment, also for the lemons supplied by the Appellant the Appellant clearly appears, by him own conduct, to have authorized and enabled Karaviotis to receive payment on his behalf for the lemons which he had supplied to the Respondents,

If Karaviotis has failed to hand over the relevant amount of £16.800 mils to the Appellant, it is up to the Appellant to take such legal steps in the matter against Karaviotis as he may deem fit.

In the result this appeal fails and is dismissed with costs.

Appeal dismissed with costs.