2 both the defendants stationary and a form signed by

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part. (2) Both the defendant’s stationary and a form signed by the plaintiff’s agent contained “small print” purporting to preclude any liability on the part of defendant for any damages caused by its negligence. These clauses had no legal effect because it was not shown that hey wee ever brought to the attention of Mr. Shiel, plaintiff’s agent who dealt with defendant. [Citing Curtis v. Chemical Cleaning and Drying Co. Ltd. (1951) 1 All E. R. 631.] (3) Defendant had told plaintiff that it would not insure the shipment; plaintiff said it would obtain insurance. This can- not be construed as an agreement between the parties to limit in any way defen- dant’s common law liability. [Citing Hill v. Scott (1895) 2 Q. B. 371]. (4) Finally, defendant argued that it should plaintiff’s failure to properly pack the machine. The court found that since the damage was caused both by defendant’s improper handling of the machinery and plaintiff’s failure to package the machine, it had to apportion the blame and assess damages accordingly. [Citing Stuart v. Crawley (1818) 2 Stark 322; Higginbotham v. The Great Northern Railways (1861) 2 F. &F. 796; Barbour v. South Eastern Railway (1876) 34 L.T.67; Gould v. South Eastern and Chatam Railway (1920) 2 K.B. 186.] The damage here was caused 2/3 by the defendant’s mishandling of the machinery and 1/3 by the plaintiff’s poor preparation of the machine for shipment. (5) As to damages plaintiff argued that in order to put him in as good a position as he would have been in had the contract been properly performed, the bases for measuring the damages should
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be the cost of a new machine. The court used as the bases of damages the val- ue of the machine on plaintiff’s books. That is original cost less ( 1967) H.C.D. - 108 – Depreciation. (Being a highly specialized machine there was no market at all for such machines.) [Citing Halsbury, 3 rd edition, Volume 4, page 151, paragraph 399.] (6) Defendant is not liable for plaintiff’s lost profits since he was not in any way made aware that delay in delivery would cause any particular loss to plaintiff. [Citing Halsbury, 3 rd edition, Volume 4, page 152, paragraph 402; British Colom- bia etc. Saw Mill Co. Ltd. v. Nettleship (1868) L.R.3 C.P. 499.] (7) Plaintiff claimed interest of 9% on the money owed it. Interest was awarded at the rate of 7%. (8) As the machine was rendered utterly useless and irreparable, the recov- ery granted plaintiff was 2/3 of the depreciated value of the machine, less the value of the machine as scrap metal. 375. Sarukele Kazobavako v. Ntakajela Kazobavako, (PC) Civ. App. 129-M-66, 20/10/67, Mustafa J. Plaintiff sued defendant in Primary Court for possession of a shamba. Judgment was for plaintiff but defendant succeeded on his appeal to District Court. In his appeal to the High Court, plaintiff contended that the District Magistrate erred in hearing the appeal without assessors.
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  • Fall '17
  • Dean Majamba

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