Dowling v Rae - [1927] HCA 5

39 CLR 363

RAE AND OTHERS

RESPONDENTS.

PLAINTIFF AND DEFENDANTS, H. G. HAMILTON PTY. LTD.

RAE AND OTHERS

RESPONDENTS.

PLAINTIFF AND DEFENDANTS,

KELLY AND ANOTHER

APPELLANTS; DEFENDANTS, RAE

RESPONDENT. PLAINTIFF,

ON APPEAL FROM THE SUPREME COURT OF Principal and Agent-Contract of agency-Sale of sheep-Guarantee of purchase-

money-Postponement of time for delivery-Variation of contruct--Release of guarantor-Statute of Frauds (29 Car. II. c. 3), sec. 4-Instruments Act 1915 (Vict.) (No. 2672), sec. 228.

The respondent R., being the owner of certain sheep which he wished to sell, entered into a contract which, as the majority of the High Court (Knox C.J., Isaacs and Powers JJ.; Higgins and Gavan Duffy JJ. dissenting) found on the evidence, was a contract with the three appellants that, in consideration of and Powers JJ. a certain commission, they would, in the event of their bringing about a sale of the sheep, guarantee the payment by the purchaser of the purchase-money.

A purchaser was found by them, and a contract in writing for the sale of the sheep was entered into by which delivery was to be made on or before a

39 CLR 364

certain date and payment was to be made three months after delivery. At the request of the purchaser, R. verbally agreed to postpone the date for the delivery to a later date, and the sheep were accordingly delivered on the later date. Subsequently the purchaser became insolvent and R. was unable to recover any part of the purchase-money.

Held, by Knox C.J., Isaacs and Powers JJ., that, since the contract of sale was one which was required by the Statute of Frauds to be in writing, the verbal postponement of the date of delivery was not a variation of the contract and did not have the effect of releasing the appellants from their liability under the guarantee.

Decision of the Supreme Court of Victoria (Macfarlan J.) affirmed.

APPEAL from the Supreme Court of Victoria.

An action was brought in the Supreme Court by James Eric Rae against Henry John Dowling (trading as Dowling Brothers), J. E. Dowling (trading as J. E. Dowling &Co.), H. G. Hamilton Pty. Ltd., and Percy James Kelly and John McDonald (trading as Kelly &McDonald) in which the statement of claim as amended at the hearing of the action was as follows :-

1. The plaintiff's claim :-(a) Against the defendants Dowling Brothers as principals and against the other defendants or one or some of them as del credere agents and /or sureties for £1,930 17s. 9d., being the price of goods sold and delivered by the plaintiff to the defendants Dowling Brothers: Particulars-1925, 21st August, 1,367 comeback ewes at 28s. 3d. per head, £1,930 17s. 9d. (b) Against the defendants Dowling Brothers for £10 16s., being the amount agreed to be paid by the said defendants to the plaintiff for agistment of 864 sheep at Hopetoun by the plaintiff for the said defendants Particulars-1925, agistment 864 sheep for one week at the agreed rate of 3d. per…

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.

Continue reading Dowling v Rae

Details

AGLC: Dowling v Rae [1927] HCA 5
Case: [1927] HCA 5
Decision Date: 23 March 1927

CaseChat Overview and Summary

The case of *Dowling v Rae* involved an appeal to the High Court of Australia from the Supreme Court of Victoria. The respondent, Rae, had sued several parties, including the appellants, alleging they acted as his del credere agents in the sale of sheep. The core of the dispute was whether the agents, having guaranteed the payment of the purchase money by the buyer, were released from their liability when the date for delivery of the sheep was verbally postponed at the buyer's request.

The legal issues before the High Court were whether the appellants were indeed del credere agents for the respondent, whether they had guaranteed the purchase money, and crucially, whether the verbal postponement of the delivery date constituted a variation of the contract that would release them from their guarantee. The appellants argued that any alteration to the contract, particularly the delivery date, without their consent discharged them from their obligations as guarantors.

A majority of the High Court, comprising Knox C.J., Isaacs and Powers JJ., found that the appellants had indeed acted as del credere agents and had guaranteed the purchase money. They reasoned that the contract for the sale of sheep was one that the Statute of Frauds required to be in writing. Consequently, a subsequent verbal agreement to postpone the delivery date was not a legally effective variation of the contract. Therefore, the original contract remained in force, and the appellants were not released from their liability under the guarantee. The decision of the Supreme Court of Victoria was affirmed.

Orders