ON APPEAL FROM THE SUPREME COURT OF Contract-Sale of goods-Indenting of goods-Conditions precedent-Time of ship-
ment-Repridiation of contract--Excuse for non-performance of conditions- Repudiation not accepted-Subsequent tender of goods. Practice-Pleading-Amendment-Amendment by one party-Right of other party
to plead at large-Rules of the Supreme Court 1916 (Vict.), Order XXVIII., TT. 1, 6.
The plaintiff and the defendant entered into a contract by the acceptance Isaacs, Higgins, by the plaintiff of an order given by the defendant in the following terms :------- " Please indent for my/our account and risk from the manufacturer the undermentioned goods, the prices to be understood for goods taken at factory
in Europe. All importing charges, namely, packing, railway carriage (if any), freight, insurance, and exchange at current rate to be defrayed by me/us. Goods to be shipped per sailer/steamer. Half as soon as possible. Half two months later. I/We also agree to accept on presentation and to pay on or before maturity your documentary draft drawn from Melbourne at ninety days sight. Failing this I/we authorize you to sell the goods on my/our account and I/we hold myself/ourselves responsible for any loss that may arise from such resale and accept all risks of non-delivery or short shipment owing to strikes, lock-outs or through any other cause beyond the seller's agent's manufacturer's control including pillage." Then followed particulars of the goods, which were 89 pieces of tie silk, and the prices.
Held, by Knox C.J., Higgins and Starke JJ. (Isaacs and Rich JJ. dissenting), that the words "Goods tc e shipped per sailer/steamer. Half as soon as possible. Half two months later," meant that the goods were to be shipped by sailing ship or steamship in two instalments, each consisting of substantially one-half of the goods ordered, the first instalment to be shipped as soon as possible and the second instalment two months after the shipment of the first; that the provisions as to shipment were conditions precedent, and that a breach of any of those conditions entitled the plaintiff to reject the docu- ments tendered to him for acceptance.
The plaintiff, having failed to comply with the conditions as to shipment, tendered some of the goods and drafts for their contract price to the defen- dant, who refused to accept them on the sole ground that the contract had been cancelled. It had not been cancelled. The plaintiff did not accept the repudiation of the contract, but, treating it as still in operation, made other similar tenders, which the defendant refused to accept on the same ground. In an action by the plaintiff, who had sold the goods, against the defendant to recover as damages the difference between the price realized and the contract price,
Held, by Knox C.J., Higgins and Starke JJ. (Isaacs and Rich JJ. dissenting), on the facts, that the defendant had not waived his right to rely on the…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Bowes v Chaleyer [1923] HCA 15
Case
[1923] HCA 15
Decision Date
CaseChat Overview and Summary
The case of *Bowes v Chaleyer* involved a dispute arising from a contract for the indenting of tie silks. The plaintiff, Joseph Chaleyer, contracted to indent goods from a manufacturer for the defendant, Timothy Bowes. The contract stipulated that the goods were to be shipped in two halves, with the first half dispatched "as soon as possible" and the second half "two months later." The defendant later repudiated the contract, and the plaintiff, after selling the goods, sued the defendant for the difference between the contract price and the resale price. The matter was heard in the Supreme Court of Victoria and subsequently appealed to the High Court of Australia.
The central legal issues before the High Court were: (1) the interpretation of the shipment provisions, specifically whether they constituted conditions precedent; (2) whether the plaintiff had complied with these provisions; and (3) the effect of the defendant's repudiation on the plaintiff's obligations. The High Court also considered whether the defendant had waived his right to rely on any non-performance of the shipment conditions. A procedural issue regarding the amendment of pleadings was also raised.
A majority of the High Court, comprising Knox C.J., Higgins, and Starke JJ., held that the shipment provisions were conditions precedent. They interpreted "Half as soon as possible. Half two months later" to mean that the goods were to be shipped in two instalments, with the second instalment dispatched two months after the first. The majority found that the plaintiff had breached these conditions as the shipments were not made in accordance with this interpretation. They further held that the defendant's repudiation of the contract, not having been accepted by the plaintiff, did not excuse the plaintiff from performing the conditions precedent. Consequently, the majority concluded that the plaintiff was not entitled to recover damages and allowed the appeal.
Isaacs and Rich JJ. dissented. They viewed the shipment provisions as less strict, considering the indefinite nature of "half" and "as soon as possible," and the commercial context of an indent contract. They argued that the defendant's repudiation, even if not accepted, coupled with the plaintiff's continued efforts to perform and the lack of actual prejudice to the defendant, should not disentitle the plaintiff from recovering damages. The dissenting judges believed the appeal should be dismissed. The High Court, by majority, reversed the decision of the Supreme Court of Victoria.