into the yard, and was ready for the pro forma delivery and count. The plaintiff, with his men, did not come until the 22nd, and then the defendant told the plaintiff that the old contract was broken by his men not coming up to specified time, and he refused a count, and refused to carry out the contract, but offered to ake a new contract of sale on slightly different terms. 66 Held, that the words, on or before 21st August, 1916," in the contract, meant the same thing as within three weeks of the making of the contract, which was dated 31st July, 1916. Held, also, that the above term as to delivery was a warranty, and not a condition. Held, further, that the only reasonable findings on the evidence were that the plaintiff was ready and willing to take pro forma delivery on 13th August, and at the request of the defendant, voluntarily forbore to press for delivery on that day, and arranged for a postponement of delivery until the 22nd August, And therefore that the finding of the jury to the contrary should be set aside, and judgment entered for the plaintiff, and (as the jury had not assessed the damages), the action should be sent back for assessment of damages. APPEAL. This was an appeal from a judgment in a case tried before Shand J., with a jury. By the action plaintiff claimed damages for breach of a contract in writing by non-delivery of certain sheep. The defendant counterclaimed for damages for the plaintiff's refusal to engage him as a drover under a verbal agreement. The agreement for breach of which the action was brought and the facts proved at the trial are all set out in the judgment of Lukin J. at pp. 183-185. The counterclaim was abandoned, and on the claim two questions were left to the jury-viz., (i.) Prior to the 21st August, 1916, was it verbally agreed by and between the plaintiff and the defendant that the pro forma delivery of the stock mentioned in Ex. 1 (the contract) should be given and taken, and that the stock thereinmentioned should be counted, at Villa Dale on the 22nd August, instead of on or before the 21st August? (AnswerNo.) (i.) If so, what damages (if any) has the plaintiff sustained by reason of the defendant's refusal to perform his part of the contract contained in Ex. 1 (the contract) as varied by the said verbal agreement? (No answer was given.) On this finding, judgment was entered for the plaintiff, who appealed to the Full Court, asking that the verdict and judgment be set aside, and a new trial be had between the parties, limited to the plaintiff's claim, and that the costs of the former trial abide the result; or, alternatively, that judgment be entered F. C. BROWNE V. HARRINGTON. F. C BROWNE V. HARRINGTON. in the action for the plaintiff on his claim for damages to be assessed and also on the defendant's counterclaim, with costs of the action; and that a new trial be had between the parties for the purpose of assessing the damages; and that the defendant pay the costs of the appeal. Stumm K.C. and Walsh for appellant: The jury's verdict. on the admitted facts is so unreasonable that it cannot stand. The plaintiff admittedly was ready and willing to take delivery of the sheep, the subject matter of the contract, on the 13th August. The defendant was then unwilling to give delivery. The contract was for the sale of specified sheep, being the sheep "as inspected" and "all depasturing on Villa Dale Grazing Selection." The plaintiff was entitled under the contract to require delivery any day up to and including the 21st day of August, and the defendant, having refused delivery on the 13th August, cannot successfully contend that he was entitled to repudiate the contract owing to plaintiff not having requested delivery on the 21st August. The property in the sheep by the contract passed to the plaintiff at the date when the contract was made, and the “ pro forma" delivery was merely to ascertain the amount due to the defendant as payment for the sheep. After the making of the contract, the defendant was virtually holding the plaintiff's sheep as his drover. He had told the witness Tate that he was ready to lift the sheep, to fit in with the shearing on the 28th August, and Ex. 2 shows that the suitable date to lift for this purpose was August 22nd, and, further, that if plaintiff consented, he would lift on August 22nd, to shear on the 28th. The contract to sell and the contract to drive were interdependent contracts, and defendant cannot dissociate himself from the dual position which he occupied as vendor and drover. In view of the uncontradicted testimony and the defendant's admissions, the jury acted unreasonably in finding that the date of delivery was not altered or delayed. The time of delivery mentioned in the contract was not of the essence of the contract. Only one count is referred to, and that was merely to ascertain how much the plaintiff was to pay. If he failed to count on or before the 21st August, he took the risk of any losses in the sheep after the 21st August, but the question of the ownership was not affected by the failure to count. They referred to Spencer v. Jones (1), Rex v. Tidenwell (2), Sale (1) 1898, 77 L.T. 536. (2) [1905] 2 K.B. 273, at pp. 277, 279. of Goods Act of 1896 (60 Vic., No. 6), ss. 13, 19, 20, 21, 30, 50, 51 ; Reuter v. Sala (1), Sanders Bros. v. McLean & Co. (2), Benjamin on Sale, 4th Ed., pp. 692-693; Purcell v. Bacon (3), Paton & Sons v. David Payne & Co. Ltd. (4), Francis v. Lyon (5). Macgregor, for the respondent: The case made by the plaintiffs at the trial was that the date for delivery had been altered. On this point there was evidence both ways, and the jury were entitled to find, and cannot be said to have acted unreasonably or perversely in finding, that the date was not altered. The question whether the plaintiff was at all times ready and willing to take delivery is irrelevant. The true construction of the contract is that the parties must be at the appointed place on or before the 21st August in order that a count of the sheep might be effected on or before the 21st August," that is, on the 21st August, or on some day before that date mutually agreed upon by both parties to the contract 66 [LUKIN J. If one party is ready to take on the 20th and the other party refused to give on that day, can the latter say that the former was not ready and willing to perform the contract?] Unless the vendor otherwise agrees, both parties must be ready on the 21st August. Evidence of "readiness and willingness " on the 13th August is no evidence of "readiness and willingness" on the 21st August. Time is of the essence of the contract, and on failure by plaintiff to take delivery at the fixed time, the defendant was entitled to repudiate the contract. A verbal alteration of the date of delivery has no effect where the date is fixed by a written contract. He referred to Stroud's Judicial Dictionary, 2nd Ed., pp. 1334 and 1335 (n); Hawley v. Simpson (6), Metropolitan Railway Co. v. Wright (7), Phillips v. Martin (8), Hampson v. Guy (9), Allcock v. Hall (10), Jones v. Spencer (11), Heilbut, Symons & Co. v. Buckleton (12), Toronto Railway Co. v. King (13), Council of Municipality of Brisbane v. Martin (14), Elliott v. Gilchrist, Watt & Co. (15), Williams v. Union Bank of Australia (16), Middleton v. Melbourne Tramway and Omnibus (1) 1879, 4 C.P.D. 239, at p. 249. (6) Cro. Eliz. 14. (7) 1886, 11 A.C. 152. (8) 1890, 15 A.C. 193. (9) 1891, 64 L.T. 778. (10) [1891] 1 Q.B. 444. (11) 1898, 77 L.T. 536. (12) [1913] A.C. 30, at p. 36. (13) [1908] A.C. 260. (14) [1894] A.C. 249. (15) 1886, 3 Q.L.J 93. (16) 1894, 5 Q.L.J. 114. F. C. BROWNE V. HARRINGTON. F.C. BROWNE V. HARRINGTON. Real J. Co. (1), Prentice v. Victorian Railway Commissioners (2), 1916 Stumm, in reply, referred to Balmain New Ferry Co. Ltd. v. : REAL J. I have had the advantage of reading the judgment of my brother Lukin, with which I entirely agree, but I place rather more reliance than he does on the provisions of s. 39 of the Sale of Goods Act. In the absence of some clear indication to the contrary appearing by the words of a contract or upon consideration of the circumstances under which it is made, I think s. 39 of the Sale of Goods Act prima facie limits to damages the vendor's remedy for delay by the purchaser in taking delivery where there is no evidence upon which the jury could find, or a reasonable man infer, an intention on the part of the purchaser to abandon or repudiate the contract. Section 39, Sale of Goods Act, provides: "When the seller is ready and willing to deliver the goods, and requests the buyer to take delivery, and the buyer does not within a reasonable time after such request take delivery of the goods, he is liable to the seller for any loss occasioned by his neglect or refusal to take delivery, and also for a reasonable charge for the cace and custody of the goods: This section does not affect the rights of the seller if the neglect or refusal of the buyer to take delivery amounts to a repudiation of the contract." The words of the last clause indicate, in my opinon, that in cases other than there mentioned, the provisions of the section fix the right and modify, if necessary, any law theretofore existing. In this case, there was not, it seems to me, evidence upon which any reasonable man could find an intention to abandon or repudiate the contract, and 1 hold that, by virtue of the provisions of s. 39, the defendant in this case was not entitled to refuse on the 22nd August to make the pro forma delivery of the stock to the plaintiff on the ground that he, the plaintiff, was guilty of a breach of contract by not being present to take that delivery and count on the 21st, even if such omission constituted a breach of contract on the part of the plaintiff. But, as I have said, I agree, for the reasons given by my brother Lukin that the jury was wrong in answering the question put to them, "No," and should have answered that question "Yes," (1) 1913, 16 C.L.R. 572, at pp. 579, 583. (2) 1914, 18 C.L.R. 526. and could not properly have answered any question arising in the case so as to justify the defendant's refusal to deliver. Therefore the plaintiff is, in my opinion, entitled to succeed, and the judgment should be set aside and interlocutory judgment entered for the plaintiff and an assessment of damages directed. CHUBB J. By a written contract between the parties, dated 31st July, 1916, the plaintiff purchased from the defendant a certain lot of sheep and rams as therein described, all then depasturing on defendant's selection, Villa Dale, and for the prices therein mentioned. The terms of payment were to be cash on delivery, payable at Queensland National Bank, Richmond, free of exchange. On or before the 21st August next ensuing a pro forma delivery was to be given and taken, and the stock counted at Villa Dale. This delivery was to be considered actual delivery (without another count being made), when payment was completed, but not before, and until such payment was made the purchaser was to hold the stock as agent only, and in trust for the vendor as continuing owner of the stock. The sheep were all the sheep defendant had depasturing at Villa Dale. The sale was therefore a sale of specific chattels. The plaintiff purchased the sheep for resale after they had been shorn (as the defendant knew), and at the time of the purchase and as collateral thereto, he verbally engaged the defendant as a drover to drive the sheep for him from Villa Dale to El Dorado, if the plaintiff failed to succeed in getting them shorn at Ballindalloch or Carrar. On the 9th August, the plaintiff, through his agents, notified the defendant that he wished "his sheep" to be shorn at Carrar, and had arranged for two alternative dates for the shearing there -viz., the 18th or the 28th August-and that to shear on the 18th the sheep would require to start from Villa Dale about the 13th, and that if the defendant could do this the sheep would be "lifted" on that date, to be shorn at Carrar on the 18th, but that if this date was not suitable the defendant could hold the sheep, and "lift" them about the 22nd to be shorn at Carrar on the 28th August. Communications passed on the telephone between defendant and the agents, and as the defendant could not obtain necessary men for the droving (I am quoting from his evidence only the part I think material), "it was arranged that we could not lift F.C BROWNE V. HARRINGTON. Real J. Chubb J. |