Contract valid despite conditional acceptance; dentist entitled to payment for dentures made reasonably well.

[*621] 1984 April 30

(MICHAELIDES, D.J.)

IN THE DISTRICT COURT OF NICOSIA

Constantinos Christofides,

Plaintiff,

v.

Ereni Kyriakidou,

Defendant.

(Action No. 107/83).

Contract - The acceptance of an offer cannot be conditional - Agreement subject to a condition depending on the satisfaction of one of the parties - Condition void for uncertainty - On the evidence adduced in this case, the Court reached the conclusion that the agreement was not conditional and the contract was a valid one.

Contract - Agreement between a dentist and his client for preparation of a set of dentures - Question of classification of such contract as a contract of sale of goods or as a contract of services - Irrespective of such classification the duty is always there for

the professional man to make articles fit for the patient’s use - Absence of evidence as to unfitness of dentures - Dentist

entitled to reasonable remuneration both for his services and the dentures.

M. Vassiliou for the Plaintiff.

St. Regas for V. HjiGeorghiou for the defendant.

JUDGMENT

The judgment of the Court was delivered by:

MICHAELIDES.D.J.: The plaintiff in this action [*622] is a Dentist. The defendant was a client who paid a number of visits to his dentistry for normal treatment of her teeth. He alleges that acting on her instructions he prepared a set of dentures. She says that she never asked him to do such a thing.

The plaintiff’s story is that on 12.11.1982 defendant went to his dentistry and asked him to replace some rotten teeth. He explained to her that a metallic set of dentures was necessary. He took measurements. One week later she went again for a test and three days later she should have visited plaintiff’s surgery for the permanent fixing. Some hours before the appointment she telephoned to him and said that she changed her mind and did not want the dentures. Plaintiff replied that the dentures were ready and that she ought to pass from his surgery to discuss the matter with him. She accepted to go there and after a long discussion she agreed to try them on. He fixed the dentures in her mouth and asked her to stay for a while in his waiting-room. Instead of waiting she took the dentures out of her mouth and handed them over to his assistant, stressing that she changed her mind, that no she longer wanted them, and that she would prefer the so called “Implanted teeth”. The plaintiff explained to her that this was inadvisable in her case in view of her age. He then advised her again to try the dentures for some weeks and assured her that if at the end of this period she could not tolerate them, he would be prepared to make a so called “metallic skelleton” or “bridge”, in which case she would [*623] only have to pay the difference in price. Defendant left the surgery and refused to come again or pay the agreed price of £110.-. In cross-examination it was put to him that if defendant could not tolerate the teeth he would have no claim for payment. He denied that he ever made such a promise.

The defendant’s story is that she went to the plaintiff only for having one tooth filled. She inquired also about the implantation of false teeth in her mouth, but plaintiff discouraged her saying that it would be better if a metallic skeleton was prepared. She was persuaded in the end and said to him, in her own words, “well, if you want to make one, do it, but if my body would not tolerate it I will not get it.” To that he replied that it was all right with him. When she visited the surgery for the purpose of paying for the filling and was informed that the dentures were ready, she said that she replied as fol1ows “But I told you not to prepare them.”

Pausing here for a moment, I must say that this statement of the defendant is completely different from her earlier statement that she had agreed to the making of the dentures the only

condition being that she would take them if they fit well. Defendant also admitted that she is a neurotic person and

that on her refusal to take the dentures the plaintiff told her that he would sue her in cross-examination she repeated that “she was persuaded by the doctor to accept” and added that she went to the sargery not for having the dentures fitted in her mouth not for a tooth filling. [*624]

Findings.

I have gone through the evidence with extreme care. The defendant’s story is most improbable. She accepted to have measurements taken. She admitted that she agreed with the dentist for the making of the dentures. She agreed to try them on. Yet it has not been disputed that she rang up the doctor to tell him that she changed her mind about the dentures and that it has only after strong persuation that she agreed to visit the surgery for a talk. She tried them over for some minutes and handed them back to the dentist’s assistant. Her story would have been more probable had she tried them on for some days or even hours, but nothing of that happend. I can only interprete he refusal to try them on as a pre-calculated move to reject the dentures and at the same time avoid paying for them. In addition to all these, I have to draw certain conclusions for her demeanour She made a very poor impression to me. She was extremely nervous and ready to answer the questions put to her not for telling the truth but merely for sticking to her story that the dentures were for trial only. The picture depicted of the dentist is one of a man who would risk making dentures worth a good deal of money, and at the same time useless for any other purpose, simply for forcing the defendant to take them. Her demeanour was not normal or plausible. I do not believe her. I find that she agreed for the making of the dentures and that she subsequently changed her mind. The plaintiff-dentist, on the contrary, made a very good impression to me as a truthful witness. [*625]

I will now endeavour to explain the law applicable in this case. I must say that I found no assistance from counsel despite repeated adjournments requested by them for that purpose.

The law.

The first question which poses for an answer is this:- Have the parties entered into a valid agreement or should the whole conversation and the consequential contract be interpreted as vague and uncertain and not enforceable for that matter? The evidence of the defendant was primarily directed to that end by saying that the agreement was conditional, depending on her approval of the

dentures. There is ample authority that an offer cannot be accepted conditionally. See the classic case of Branca v. Cabarro (1947) K.B. 854, (1947) 2 All E.R. 101, Veridex (London) Ltd.

v. Doudney Blair & Co. Ltd. (1953) 2 Lloyd’s .Rep. 521.

In Montreal Gas Co. v. Vasey (1900) A.C. 595 the agreement was expressed so as to be subject to a condition depending on the satisfaction of one of the parties. It was held that a written promise by the appellants that if satisfied with the respondents as customers they would favourably consider an application by the respondent to renew a subsisting contract between them on its expiration, does not impose a legal obligation to grant it.

In the more recent case of Lee-Parker v. Izzet (No.2)

(1972) 2. All E.R. 800 at p. 803 Goulding J. said:- [*626]

“In my judgment, the words which I have just read made the vendor’s obligation to sell and the purchaser’s obligation to buy dependent on the obtaining of a satisfactory mortgage. Until the condition was fulfilled there was to be no binding contract of sale. I agree moreover with the submission of the plaintiffs’ counsel that the condition is void for uncertainty. I bear in mind the numerous warnings of great judges against too ready an acceptance of submissions of that character. Meggarry J., has collected an anthology of such warnings in his recent judgment in Brown v. Gould (1971) 2 All E.R. 1505 at 1507, 1508,

(1972) Ch.53 at 56,57. Neverthelss it seems to me that in the circumstances of the present case the concept of a satisfactory mortgage is too indefinite for the Court to give it a practical meaning. Everything is at large, not only matters like rate of interest and ancillary .obligations, on which evidence might establish what would be .usual or reasonable, but also these two most essential points - the amount of the loan and the terms of payment. I am following, I think, the authority of Scammell v. Ouston (1941) 1

All E.R. 14, (1941) A.C. 251, and more specifically of a decision of Russel J. in Re Rick’s Will Trust (1962) 106 Sol. Jo.75.”

Having in mind the above authorities and the findings of the Court made earlier in the judgment, I am of [*627] the view what her acceptance was not conditional and the contract was a valid one. Had her intention been to accept the offer of the dentist plaintiff conditionally, she should have kept the dentures in her mouth for some time to see if they fit, instead of refusing at the beginning to try them and when persuaded to do so to reject them after a few seconds. She also failed to adduce any evidence by another dentist or doctor that the dentures were unfit for the purpose for which they were made. I do not believe her. The agreement was a valid one.

The next question to be considered is whether the contract concluded between the parties was-a contract of services. The question whether a given contract be a contract of sale or of some other allied form of contract, though often difficult to determine, is of practical and not merely of theoritical importance. See Chalmers’ Sale of Goods Act. 1893, 17th Edition p. 77 where the following are mentioned:-

“Work and materials - The principal practical differences between such a contract and one of sale are as follows: first, if in writing, it must be properly stamped, whereas contracts of sale of goods are exempt from stamp duty by the First Schedule to the Stamp Act, l891. Secondly, terms are implied into the former only in accordance with the general law of contract and not under this Act (For the nature of the conditions and warranties implied into a contract for work and materials and the circumstances [*628] in which such conditions and warranties will be implied, see Young & Marten Ltd., v. McManus Childs. Ltd. (1968) 2 All E„R. 1169; (1969) A.C. 454, H.L. Gloucestershire County Council v. Richardson (1968) 2 All

E.R. 1181; (1969) 1 A.C. 480, H.L; Samuels v. Davis (1943) 2 All E.R. 3; (1943) K.B. 526, C.A.; Ingham v. Emes (1955) 2 All E.R. 740; (1955) 2. Q.B.366 C.A.) Thirdly, terms

implied into a contract for work and materials may be excluded or limited by a suitably worded exemption clause, whereas terms implied into a contract for the sale of goods by ss.12-15 of this Act may not be excluded in many cases, and in other cases may be excluded only to a limited extent. Finally, the right to treat the contract as at an end as a result of a breach by the other party may in some cases depend upon the nature of the contract.

“Opinions have differed much about the test for distinguishing between these two contracts, but the general rule deductible from the cases seems to be that if the main object of the contract is the transfer from A to B, for a price, of the property in a thing in which B had no previous property, then the contract is a contract of sale; but if the real substance of the contract is the performance of [*629] work by A for B., it is a contract for work and materials notwithstanding that the performance of the work necessitates the use of certain materials and that the property in those materials passed from A to B under the Contract (The difficulty is an old one and was much debated by the Roman Lawyers. See Inst. III 24,4 and De Zulueta, The Roman Law of Sale, pp. 15, 16. See also 1 L.Q. R. 8).”

In Lee v. Griffin (1861 ) 1 B & S. 272, 12 Digest 148, 1017; 30 L.J.Q.B. 252 an old case dealing with the making of dentures by a dentist it was held that if a contract would result in the transfer of the property in goods from one party to another, than it must be a contract of sale of goods.

Roleinson v. Graves (1935)1 K.B. 579 was a case about the painting of a portrait. Greez L.Z. in holding that such contract was one for skill and labour and not a contract for the sale of goods stated the law as follows at p. 587.

“If the substance of the contract……… is that skill and labour have to be exercised for the production of the article and..…it is only ancillary to that that there will pass from the artist to his client or customer some materials in addition to the skill involved in the production of the portrait, that does not make any difference to the result, because the substance of the contract [*630] is the skill and experience of the artist in producing the picture.”

In the book “The sale of Goods by P.S. Atiyah, 5th edition at p. 14 the following are mentioned:-

In modern times another distinction between contracts of sale of goods and contracts for skill and labour has emerged which is sometimes of the greatest importance. In a contract of sale of goods the seller’s obligations with regard to the goods sold are normally ‘strict’ in the sense that they extend to latent defects and do depend on proof of negligence. But in a contract of skill and labour - or a contract for services as it would be more normally termed today - the party rendering the services is usually held to undertake only to exercise all due skill and care and is not liable in the absence of negligence. The distinction is well

illustrated by the decision of the New York of Appeals is Perlmutter v. Beth David Hospital (1955), 123 N.E. 2d. 792, in which the plaintiff was given a blood transfusion

in the defendants’ hospital. The blood was contaminated with jaundice viruses which, according to the expert evidence, were not detectable by any scientific tests, and the plaintiff suffered injury in consequence. The plaintiff was a paying patient at the hospital and in the account rendered to him he was charged as separate sum of the cost of the blood itself. [*631]

“The plaintiff claimed that the blood had been ‘sold’ to him and that the defendants were therefore liable for ‘defects’ in the blood on the basis of implied warranties. But the majority of the Court held that the transaction was one of services only and that the supply of the blood was merely incidental to those services, and an English Court would almost certainly concur with this decision.”

The most important authority, however, on the case under consideration is the case of Samuels v. Davis (1943) 2 All E.R.3, which is again a case of making dentures by a dentist and most relevant to the facts of the present action. A dispute arose, as to whether the dentures fitted satisfactorily and the plaintiff dentist brought an action to recover his fee for professional services. Du Parcq L.J. had these to say at p. 5:

“He referred, naturally, a great deal to the question whether this was a sale of goods or a contract to do work and labour. I agree with my Lord in thinking that in this case it makes no difference at all which it was. For my own part, I think that it was a contract for the sale of goods. Lee v. Griffin, (Hope v. Hope (1857) 8 De G.M. & G. 731; 11 Digest 403, 739; 26 L.J. Ch. 417; 29 L.T.O. S.4) which is a very old authority, was dealing with a section of the Statute of Frauds which is not reenacted in sect. 4 of the Sale of Goods Act. That section deals with the [*632] necessity for written evidence of a contract for the sale of goods, and, if I may give a word of advice to the dental profession, I would suggest to them that in all their dealings they assume that a contract under which they are going to supply a set of teeth or a denture is, for the purposes of that section, a sale of goods. I think they may run risks if they assume that it is a contract for work and labour and that no writing is necessary. That is, by the way, because we are concerned with an entirely different problem here, and of course, in Lee v. Griffin (Hope v. Hope (1857) 8 De G.M. & G. 731; 11 Digest 403, 739; 26 L.J. Ch. 417; 29 L.T.O.S.4) the Court was not directing its attention in the least to the question whether there were any different incidents in the case of a contract for the sale of dentures and in the case of a contract for the work and labour expended on the making of a denture. I have no doubt myself that, if the question had arisen whether it made any difference to describe the contract as one of sale or as one of work and labour, the

answer would have been for the present purpose, none whatever. In the case of Francis v. Cockrell Tennant v. Braie (1608) Toth 78; Digest 453; 2754 which was cited in Myer

& Co v. Brent Cross Service Co. Cocksedge v. Cocksadge (1884) Sim. 244; 27 Digest 223, 1938; 13 L.J. Ch. 384; 3 L.T. O.S

374 Kelly C.B., said at p. 503: [*633]

I do not hesitate to say that I am clearly of opinion, as a general proposition of law, that when one man engages with another to supply him with a particular article or think, to be applied to a certain use and purpose, in consideration of a pecuniary payment, he enters into an implied contract that the article or think shall be reasonably fit for the purpose for which it is to be used and to which it is to be applied. There Kelly, C. B. was dealing with a case, as I pointed out in my judgment in Mayers’ case, which was not one of a sale of goods at all, and his words were of general application to all contracts under which goods were supplied. It may be that there are exceptions to that general proposition as it is laid down by Kelly, C. B., and I think perhaps he had it in his mind that there might be, because he said at p. 503:

That I hold to be a general proposition of law applicable to all contracts of this nature and character. I cannot doubt that, if someone goes to any professional man, however eminent and however, distinguished his profession may be, and whatever skill its practice may demand and says: ‘Will you make me something which will fit a particular part of my body?’ As everybody does say impliedly who asks for a denture to be

made, and the professional gentleman says: ‘Yes,’ without qualification, he is warranting that when he has made the

article it will [*634] fit the particular part of the body. I think one is getting into a region of fancy if one assumes any other contract is made .by implication. Of course, there are many cases where no professional man would make such a contract and then he would undoubtedly make an express contract limiting his liability. I say that as a lawyer, but I think any layman would say the same thing if you put the matter to him. Everybody knows, I think, that in most cases a dental surgeon is able to make a denture which will fit the patient’s mouth reasonably well - I do not say perfectly the law does not demand perfection - but reasonably well. One knows, also, that there may be cases I know not whether they be many of few, where it is quite impossible to do that at all, and there are cases no doubt, also, where it is doubtful whether, with that reasonable degree of skill which the professional man is expected to command, he will succeed in a very diffecult task. In such cases I do not doubt that the dental surgeon would always tell the patient of the difficulty and say to him. I will do my best and I can do no more. I may be able to to fit your mouth with a denture but I may fail, and ‘if you are prepared that I shall do the work on those ‘terms, I will do it’; but in the ordinary case, where a dental surgeon is instructed for reward to make a denture, I have not the faintest doubt that whether you call that a contract of sale of .goods or a contract for work and labour done, he is contracting.[*635] to make a denture which will fit the patient’s mouth - in fact it is hardly necessary to add those latter words, because a denture means something which will fit someone’s mouth, because dentures are not things which one can buy ready made; it means a denture which will fit the mouth of the particular patient for whom it is made.

“I think it really does not help to consider the case of an artist painting a picture or a sculptor making a bust or to refer to cases of surgical operations in the ordinary sense. It is perfectly clear that a dentist is in the same position as any other surgeon from the point of view of the law. If a dentist takes out a tooth, or a surgeon removes an appendix, then he is bound to take reasonable care to show such skill as may be expected from a qualified surgeon. Obviously one can apply no other criterion there. The case is entirely different where a chattel is ultimately to be delivered”.

It is clear from the above authorities that the duty is always there for the professional man to make articles fit for the patient’s use independently of the legal classification of the contract.

In the absence, therefore, of reliable evidence that the dentures were unfit the plaintiff is entitled to a reasonable remuneration both for his services and the dentures. Nothing was placed before the Court that the [*636] amount of £110.- claimed by the plaintiff is unreasonable or unjustified.

For all the above reasons, judgment is given for the plaintiff against the defendant for £110.- with costs to be assessed by the Registrar. The dentures, Exhibit 1 to be returned to the defendant.

Judgment for £110.- with costs in favour of the plaintiff.