which he was entitled to compensation. Decision of the Supreme Court: 18 S.R. 342; 35 W.N. 133, affirmed. HAZELDELL LTD. v. COMMONWEALTH, 35 W.N. 186. [High Court.]

City and Suburban Railways (Resumption Rescission) Act, 1917—Condition precedent to right of action.-A notice in writing by the Constructing Authority requiring the claimant to bring an action is not a condition precedent to a right of action under the City and Suburban Railways (Resumption Rescission) Act, 1917. HOLDSWORTH v. MINISTER FOR PUBLIC WORKS, 35 W.N. 29. [New South Wales.]

SALE OF GOODS.

Delivery f.o.b. at port-Demand by buyer for delivery elsewhere Refusal by seller— Security for payment for goods-Failure of buyer to provide-Action for non-delivery— Condition precedent-Non-performance by plaintiff. By contracts in writing made during 1915 in Perth for the sale of flour it was agreed that the buyers, who were merchants in Egypt, should accept responsibility of providing freight; that the price should be £8 per ton f.o.b. Fremantle; that local credit should be established to enable sellers (a Western Australian company) to obtain payment in exchange for documents at Fremantle, and that the flour should be shipped during January, 1916. The buyers arranged for the Bank of Australasia in Perth to negotiate, at the exchange of the day, the drafts, with recourse on drawers, of the sellers upon a bank in London, for account of the buyers payable at sight, against shipping documents relating to Australian flour f.o.b. Fremantle. Subsequently the buyers. demanded delivery to the Bank of Australasia at Fremantle against payment; the sellers refused to make such delivery, and the buyers cabled insisting upon compliance with their demand. Thenceforth nothing further was done by either party until after the end of January, 1916. An action was brought by the buyers against the sellers for damages for non-delivery of the flour to the bank at Fremantle. Held, that on the true construction of the contracts the only obligation of the defendants as to delivery was to deliver flour free on board a ship or ships provided by the plaintiffs; and, consequently, that the defendants were not bound to make the substituted delivery to the bank demanded by the plaintiffs. Held, also, that even if the defendants' refusal to deliver to the bank was not justified, the plaintiffs had neither established a local credit within the meaning of the contracts appropriate to the altered delivery, nor shown that they had been ready and willing to establish such credit, but had been absolved from doing so by the defendants' refusal to deliver to the bank; and that, consequently, they were not entitled to sue the defendants for breach of contract. Byrne v. Van Tienhoven (5 C.P.D. 344) applied. Ockerby & Co. Ltd. v. Cohen & Co. (19 W.A.L.R. 40) affirmed. COHEN & Co. v. OCKERBY & Co. LTD., 24 C.L.R. 288. [High Court.]

"F.o.b."-Price payable on delivery of documents-Bill of lading-Shipping receipt— Tender of documents-Recovery of price Damages. The plaintiff and the defendants in Sydney entered into a contract whereby the plaintiff agreed to sell and the defendants to buy 50 tons of chaff at £6 5s. per ton, f.o.b., shipped in New Zealand during June or July, 1915, as freight was available. The terms as to payment were Cash against documents," and as to insurance buyers instruct." An action was brought by the plaintiff against the defendants, to recover the price of the chaff. In one count of the

66

declaration the terms of the contract were set out, and it was alleged that the chaff was duly shipped in accordance with the contract, that the plaintiff had tendered the documents mentioned in the contract, and there was an averment of performance of all conditions precedent. To this count the defendants pleaded that it was a term of the agreement that the plaintiff should deliver to the defendants the bill of lading and other documents relating to the chaff and that he had failed to do so. At the trial evidence was given that a parcel of chaff, which had been shipped in New Zealand within the time specified in the contract by F. & R., consigned to Sydney to their own order, and there sold to C., had been purchased by the plaintiff from C., and that in performance of his contract with the defendants he tendered to them certain documents relating to this chaff, including a shipping receipt called on its face a bill of lading. The defendants moved for a nonsuit, on the ground that the document last mentioned was not in fact a bill of lading, and that the contract required a tender of a bill of lading. The plaintiff's case was then reopened and evidence was given to show that a document in the form of a shipping receipt was usual in the trade instead of a bill of lading. The defendants then moved for a non-suit on the ground that the plaintiff's only remedy was in damages, but the Judge refused to non-suit. The jury found that a document in the form of the shipping receipt was usual in the trade, and they returned a general verdict for the plaintiff for the price of the chaff. A motion for a new trial was dismissed, the only grounds taken being those taken on the motions for a non-suit. appeal to the High Court, held (Isaacs, Higgins and Rich, JJ., dissenting), that on the pleadings, and in view of the conduct of the case the plaintiff was entitled to hold the verdict. Decision of the Supreme Court: 16 S.R. 68; 33 W.N. 19, affirmed. HOGAN v. MARTIN & Co., 24 C.L.R. 234; 18 S.R. 153; 35 W.N. 78. [High Court.]

On

Pro forma delivery-Agreement that payment condition precedent to actual deliveryPayment Terms to purchaser-Cash as between agent and vendor-Possession-Passing of property. A vendor placed sheep in the hands of an agent for sale, stipulating that the transaction should be upon a cash basis. The agents negotiated a sale, but agreed to give the purchaser terms, half cash and half upon promissory notes, but they paid their principal the full amount of the purchase money in cash. The purchaser's cheque for half the purchase money was dishonoured and he failed to give the promissory notes agreed for. The contract between the vendor and purchaser provided that delivery should be pro forma, such delivery to be regarded as actual on settlement being completed by the purchaser. The purchaser, without having paid for the sheep, resold some of them and assigned to a third party the proceeds in the hands of his selling agents, and notice in writing of this assignment was given by the assignee. On the same date the pur

chaser gave a similar assignment to the agents through whom he had purchased, but though verbal notice of this was given there was no written notice. Subsequently the purchaser purported to revoke the first assignment and the selling agents paid the money to the original agents the second assignee. Thereupon the first assignee brought this action. Held, that notwithstanding the pro forma delivery the property in the sheep passed to the purchaser (the assignor) upon payment of the purchase money by the agents to the vendor, and that the assignment of the proceeds of the resale completed by the notice in writing was valid notwithstanding that the consideration for it was not set out, and further, the attempted revocation was not effective in face of the duly completed assignment. VICTORIAN PRODUCERS' CO-OPERATIVE Co. LTD. v. LONG, or LENG, 39 A.L.T. 179; 24 A.L.R. 35. [Victoria.]

66

Pro forma delivery-Date of delivery-Time the essence of the contract-Mercantile contract. By a contract in writing, dated 31st July, 1916, the plaintiff agreed to buy, and the defendant agreed to sell, about 3,000 sheep,then depasturing on the defendant's station at Villa Dale, in Queensland. Payment was to be on delivery, and the contract provided, Pro forma delivery to be given and taken, and the above-mentioned stock to be counted at Villa Dale on or before the 21st August, 1916, next ensuing." The plaintiff did not demand delivery of the sheep until the 22nd August, when the defendant refused to deliver. In an action for damages for nondelivery of the sheep, the jury specially found that it had not (as the plaintiff alleged) been verbally agreed between the parties prior to the 21st August, that the pro forma delivery of the sheep should be given and taken, and that the sheep should be counted at Villa Dale on the 22nd August, instead of on or before the 21st August. Held, that the jury's finding must stand, and that therefore there was no breach by the defendant of the terms of the contract relating to delivery, and he was entitled to judgment. Per Barton, J.: The written agreement was a mercantile contract, and time was of the essence of the contract; the plaintiff' attendance on or before the 21st August was therefore a condition precedent to delivery. Per Isaacs, J.: It was the defendant's duty, in accordance with the terms of the contract, to deliver the sheep to the plaintiff when so requested by him, on or before the 21st August. While the plaintiff was at liberty to demand delivery at any time after the date of the contract up to the 21st August, it was his duty to notify the defendant distinctly of the day he required delivery of the sheep. Judgment of the Full Court of Queensland reversed. HARRINGTON BROWNE, 24 A.L.R. 1. [High Court.]

V.

Delivery by instalments-Failure to accept instalment-Waiver of necessity for further tender. Respondent agreed to purchase from appellant at least 100 vacuum cleaners

In 1914

On the

in the years 1913 to 1916. After 10 machines had been delivered respondent asked to be released from the agreement, and he repeated this request in subsequent letters. and 1915 appellant asked respondent for instructions as to delivery, but respondent replied that it would be useless to deliver them, as he was unable to pay for them. Appellant made no further deliveries, but sued respondent for damages for failure to accept the machines. Held, that respondent had waived compliance with any condition precedent as to tender of delivery. argument of the appeal it was admitted that on the materials before the Court only nominal damages could be recovered, but appellant applied for leave to call additional evidence so as to furnish a basis for assessing damages. Held, that there was nothing in the circumstances of the case to justify the Court in departing from the general rule that an appellant should not be allowed to bolster up his case by adducing fresh evidence on the appeal. Dictum of Cotton, L.J., in Evans v. Benyon (37 Ch. D. 329, 345) applied. Appellant's counsel intimated that, if the judgment in the magistrate's court was set aside and appellant's application for leave to call further evidence was refused, he would elect to be non-suited. Held, that he was justified in making the election and a judg ment of non-suit was ordered to be entered. HENRY F. Moss LTD. v. COLLEDGE, 1918 N.Z.L.R. 72; G.L.R. 47. [New Zealand.]

66

T.

Agreement to buy-Possession obtained with consent of seller-Sale and delivery by person so in possession to another receiving in good faith and without notice of lien or other right in original seller-Conditional agreementCondition subsequent-Right to return goods -Ability to pay purchase money-Damages-Measure of Goods Act 1915, ss. 31, 65.-T. was authorised by the defendant to buy for him a motor car, and was given the money to pay for it. T. bought the car and delivered it to the defendant. The defendant, not liking the car, asked T. to take it over. agreed to purchase the car for a sum to be paid at a future date, the car to remain the defendant's property, and to be insured and registered in defendant's name till the purchase money was paid. As part of the agreement the defendant said to T.- What if you are not able to pay the money?" T. said: "I'll have the right to return the car to you." Defendant then said: "All right." T. then took possession of the car, and subsequently delivered it under a contract of sale to the plaintiffs Y. Brothers, who paid the full purchase money to T. and received the car in good faith and without notice of any lien or other right of the defendant. Subsequently Y Brothers sold and delivered the car to the plaintiff P. T. was afterwards prosecuted for the larceny of the car, and the police took possession of it from P. The defendant then obtained possession of the car from the police, and later on sold it again. Y. Brothers and P. then brought this action against the defendant for the return of the car, or damages. Held, that the conditions in the contract

between T, and the defendant relative to T.'s ability to pay, and right to return the car, were mere resolutive conditions depending upon future facts, and did not make the return of the car dependent entirely upon T.'s own will; that T. had "agreed to buy " the car within s. 31 of the Goods Act 1915; that the property in the car passed to Y. Brothers under their contract with T.; and that the plaintiffs or some or one of them were or was consequently entitled to recover damages against the defendant.. Helby v. Matthews ([1895] A.C. 471) distinguished. Marten v. Whale ([1917] 2 K.B. 480) and Hunt v. Wyman (100 Mass. 198) applied. Observations as to the measure of damages in actions for conversion. YULE BROTHERS v. SIMS, 1918 V.L.R. 670; 24 A.L.R. 381. [Victoria.]

Sale by description-Implied condition_ Passing of property. One farmer sold to another at auction an animal described as a pure bred Polled Angus bull, but which, through a physical defect was useless for stud purposes. The conditions of sale provided that any error or misdescription should not annul the sale, but should be a matter for compensation, and that no guarantee or warranty should be given or implied. purchaser had seen the bull before the sale, but the defect was not discoverable by inspection, and was not known to either party until the purchaser discovered it after the sale. Notwithstanding the defect, the animal had a considerable food value.

The

Held,

a contract for the sale of goods by description within s. 15 of the Sale of Goods Act, 1908; that the description meant that the animal was a stud bull; and that as it did not correspond with this description, the property had not passed, and the seller was not entitled to recover. COTTER v. LUCKIE, 1918 N.Z.L.R. 811; G.L.R. 583. [New Zealand.]

Inspection-Place of-Sale by description— Breach of warranty-Right to set up in diminution of price. The plaintiff contracted to sell three lots of potatoes to the defendant, a company carrying on business in Auckland. The potatoes were sold by description, and the plaintiff knew that they were destined for Auckland. In accordance with the contract the plaintiff shipped the potatoes f.o.b. Timaru. On arrival at Auckland they were inspected by the defendant and rejected on the ground that they did not correspond with the description. The plaintiff did not intimate to the defendant that the potatoes could be inspected, and until the potatoes were placed on board the defendant did not know what potatoes were assigned to it. The plaintiff made all arrangements as to the shipment of the potatoes, and the buyer first knew of the steamer by which the goods were shipped on receipt of the boat note. (1) That the defendant was entitled to inspect the potatoes on arrival at Auckland, and to reject them if they did not correspond with the description: Canterbury Seed Co. Ltd. v. The J. G. Ward Association Ltd. (13 N.Z.L.R. 96) applied. (2) That even if the defendant was under a duty to examine the potatoes

Held,

at Timaru, it was entitled under s. 54 of the Sale of Goods Act, 1908, to set up a breach of warranty in diminution of the price. (3) That the goods did not correspond with the description, and that the defendant was therefore entitled to judgment. CANTERBURY FARMERS' CO-OPERATIVE ASSOCIATION LTD. v. ROBERTSON BROS. LTD., 1918 G.L.R. 314. [New Zealand.]

Payment-Cheque-Post office not seller's agent to accept payment.-Sending a cheque by post, even at the seller's request, is not a payment within s. 6 of the Sale of Goods Act, 1908, if the seller refuses to accept and returns the cheque, for the Post Office is not his agent to accept payment. Davis v. Phillips, Mills & Co. (24 T.L.R. 4) followed. JONES v. CHAMBERLAIN, 1918 G.L.R. 263. [New Zealand.]

Rescission Sheep sold and delivery takenSubsequent agreement to rescind contract and take back the sheep-Liability of purchaser for short delivery.-A number of sheep were sold by plaintiff to defendant and delivery was taken by defendant. Two days later, and before any part of the purchase money had been paid, defendant stated that they were unsuitable, and plaintiff agreed to take them back. On their return plaintiff found that there was a short delivery, three ewes and one ram. In an action to recover the value of the missing sheep, held, that on delivery of the sheep to defendant the contract of sale was executed and the sheep were then at defendant's risk, and that he was therefore liable to plaintiff for the value of those missing. SHEPHERD v. HILL, 13 M.C.R. 95. [New Zealand.]

Memorandum in writing-Invoice of goods purchased with vendor's name printed and purchaser's name written thereon sent to purchaser-Prior oral agreement as to time of payment not contained in invoice.-The issue by or on behalf of a vendor of goods of an invoice partly printed and partly written, such invoice containing in printed words the names of the vendor and in writing the name of the purchaser and the goods sold, their price, and other terms, constitutes a sufficient signature of a note or memorandum in writing to satisfy s. 6 of the Sale of Goods Act, 1908, notwithstanding that the vendor's name has not been written in the invoice either personally or on his behalf. Where, however, the time of payment of the purchase price has been expressly fixed by oral agreement entered into before the note or memorandum has been signed, and such note or memorandum does not contain such term, it does not satisfy the statute. SAUNDERS v. BROWN & Co. LLD., 13 M.C.R. 114. [New Zealand.]

season 1914-1915 of State where delivery is made." The wheat was to be delivered at Adelaide, Melbourne or Sydney, at seller's option, in January, February, and March, 1915. In August, 1914, the same firm of brokers negotiated a sale of a similar quantity of wheat from the defendants to the plaintiff. The bought and sold notes were in identical terms, except as to price, in each case. On November 30th, 1914, the vendors under the first contract elect to deliver in Sydney. On December 2nd. 1914, the defendant notified the plaintiff of a similar election under the second contract. On December 11th, 1914, the Wheat Acquisition Act, 1914, came into operation. Under the provisions of this Act the New South Wales Government, on December 24th, 1914, by notification published in the Gazette, compulsorily acquired all wheat then in New South Wales, other than wheat actually in transit to other States of the Commonwealth. No wheat was delivered under either contract. The plaintiff sued the defendants for non-delivery under the contract made between the plaintiff and the defendants in August, 1914. Held, 1. That this contract was not a contract for the sale of the specific wheat the subject matter of the first contract; and (2) that in the absence of evidence that after the passing of the Wheat Acquisition Act, 1914, the defendants could not obtain sufficient wheat, grown in New South Wales, which was then in course of transit to other States, the defence of impossibility of performance was not established. Gelling v. Cresnin (16 S. R. 558) reversed. GELLING v. CRESPIN, 18 S.R. 18; 24 A.L.R. 41. [High Court.]

*.

Wheat acquired by Grain and Foodstuffs Board-Buyer under contract no claim to price paid by Board-Industries Assistance Act, 1915, s. 23-Grain and Foodstuffs Act, 1914, s. 19. The defendant, a farmer, by a contract in writing dated August 3, 1914, agreed to sell to the plaintiff 300 bags of fair average quality wheat at 3s. 53d. per bushel. By s. 23 of the Industries Assistance Act, 1915, the contract was a contract for the sale of wheat, the produce of the defendant's own crop. The Grain and Foodstuffs Board, appointed under the Grain and Foodstuffs Act, 1914, acquired the defendant's wheat. Sect. 19 of the Grain and Foodstuffs Act, 1914, provides : In case any grain or foodstuff is, at the time when it is acquired by the Board, in the custody of any person who, under any contract, is bound to deliver it, or any grain or foodstuff in lieu thereof, to or in accordance with the order of any other person, the obligation so to deliver shall be discharged upon the taking of such grain or foodstuff by or on behalf of the Board or the delivery thereof to the Board, but without prejudice to any claim which such other person may have to the price or any other sum paid, or to be paid by the Board, for or in respect of such grain or foodstuff, or to any part of such price or other sum." The plaintiff claimed damages for breach of the above contract. Held, that the plaintiff had no claim to the price paid by the In

dustries Assistance Board ог any part thereof. NALDER v. FARMERS' MERCANTILE AND CHAFF MILLS LTD., 1918 W.A.L.R. 31. [Western Australia.]

Meaning of f.o.b.—Material part of cause of action.-See PRACTICE.

Failure to accept delivery-Goods not of merchantable quality.-See SUGAR CANE.

SALE OF LAND.

See VENDOR AND PURCHASER.

SALE OF LIQUOR RESTRICTION ACT.

See LICENSING.

alleged to have seduced, or a conflict of evidence between defendant and one of the witnesses as to opportunity, is not corroboration. Burbury v Jackson ([1917] 1 K.B. 16) followed. CROSS v. COLQUHOUN ; COLQUHOUN v. CROSS, 1918 N.Z.L.R. 401; G.L.R. 361. [New Zealand.]

Fact of seduction not alone sufficientPhysical incapacity arising from seduction— Wrongs Act, 1915, s. 13.-Notwithstanding s. 13 of the Wrongs Act, 1915, a parent or person in loco parentis bringing an action for seduction must still prove, in addition to the fact of seduction, physical incapacity arising from that seduction of the woman or girl seduced for ordinary domestic and other services and acts. The section does not, in such a case, make the mere fact of seduction actionable. MURRAY v. Kerr, 1918 V.L.R. 409; 24 A.L.R. 216; 40 4.L.T. 66. [Victoria].

Whether the King a necessary party-Rule 481 of the code. See PRACTICE.

SEDUCTION.

Corroboration-Payment of money and

denial

of responsibility-Failure to deny paternity. Sect. 22 (2) of the Evidence Act, 1908, which prevents the plaintiff in an action for seduction from recovering a verdict "unless the evidence of the woman seduced is corroborated by some other material evidence of such seduction," should be construed in the same way as the analogous provision in s. 21 of the Act regarding actions for breach of promise of marriage. Any evidence which renders it probable that the story told by the woman as to her seduction by the defendant is true ought to be treated as corroboration for the purposes of s. 22 (2). A payment of money by defendant to the person alleged to have been seduced, though accompanied by a denial of responsibility, must be taken in connection with all the circumstances of the payment, and may be treated as corroboration. The mere proof of opportunity or of friendly relations between defendant and the woman whom he is

SETTLEMENT.

Exercise of power-Consent by life tenant to sale Consent by attorney-Whether power fiduciary-Appointment of trustee company as sole trustee-Settlement requiring two trustees Intention to revoke settlementDeed construed as revocation of previous settlement.-Where there is a settlement on a person for life with remainder over and power is given to the trustees to sell the settled property in their uncontrolled discretion, but during the life of the life tenant only with his consent, prima facie the provision requiring the consent of the life tenant to be given during his lifetime will be regarded as inserted solely in the interest of the tenant for life. In such a case the power is not fiduciary and the tenant for life may consent by his duly appointed attorney. Hawkins v. Kemp (3 East. 410) and Perpetual Trustee Co. v. Cowan (21 N.S.W. L.R. Eq. 278) considered. By deed of voluntary settlement, Q. settled certain property upon trustees upon trust for himself for life, with remainder as he should by will appoint. The deed provided that on the appointment of new trustees the number of trustees should not be less than two. Q. had power under the settlement with the consent of the trustees to revoke the settlement. In June, 1911, Q.