Electronic Industries Ltd v David Jones Ltd

288 HIGH COURT

[1954.

IHKHC COL'RT OF AlT,S"n>w\LIA.]

ELECTRONIC INDLSTRilCS LIMITED

Appe ll a n t ;

DAVID JONES LIMITED

R e spo n d e n t .

D e f e n d a n t ,

ON APPEAL FROM THE SUPREME COURT OP

NEW SOUTH WALES

H. C. OF A.

Contract— Variation of terms—Television demonstration—Fixed period—Period

1954.                 changed—Consent—Forbearance—Effect on contract.

S V D N E Y ,In May 1949 an agreement was made between E. and 1). whereby E. was

Nov. 15, 16, to install televi.sion equipment in D.’s retail store for demonstration purposes

26.and oj^erate it there for the period 11th July to 23rd July 1949, the latter date being subsequently altered to 22nd July. During June 1949 an industrial

Dixon (J.J.,

McTiernan,

disturbance resulted in a falling off in the trade of retail stores and upon

Webb,

K itto and

D.’s request for that reason E. agreed to a postponement of the demonstra­

Taylor

J J .

tions until another date could be fixed, and in a letter dated 30th June 1949 to D. said that it, E., would “ be plea,sed to vary our agreement with you by an alteration of the date of the demonstration ” and suggested that the demonstration should be staged in August 1949. D. did not reply to that letter until 14th July 1949 when it intimated that it did not agree to the ]3rox)osal as trade in its retail store was still adversely affected by the industrial disturbance. E. did not make any attempt in fact to begin the installation of the equipment to begin the television exhibition on 11th July 1949, but in jDursuance of communications from D, awaited further information as to the time or times which would prove suitable to D. Further attempts to fix a mutually convenient date failed and D. then informed E. that it no longer desired to have the television demonstration staged in its store. E. thereupon sued I), for breach of the contract to give and accept performance of the demonstration during the jjezlod 11th July to 22;id July 1949, and at the trial of the action recovered a verdict. The Full Court of the Supreme Court set aside that verdict and entered a verdict for the defendant. Upon apjjeal, Held that the apjieal should be allowed because in the situation which I’esulted both izarties remained bound by the contract; the fact that there was not any longer a fixed date for performance brought into aijjjication the

91 C.L.R.] OF AUSTRALIA.

289

principles which imjjosed upon parties, as in all cases where the perform­

H. C. OF A.

ance of their obligations required co-operative acts, the duty of complying 1954.

with the reasonable requests for performance made by the other.

E l e c t e o n ic

Decision of the Supreme Court of New South Wales (Full Court) : Electronic

I n d u s t r ie s

L t d .

Industries Ltd. v. David Jones Ltd. (1954) 54 S.R. (N.S.W.) 102 ; 71 W.N. 57,

V.

reversed.

D a v id

J o n es

L i 'd .

Appe a l from the Supreme Court of New South Wales.

'

In an action brought by it in the Supreme Court of New South Wales, Electronic Industries Ltd. claimed from David Jones Ltd. the sum of £1,500 as damages for breach of contract alleged to have been entered into by and between the parties.

In its declaration the plaintiff alleged that the plaintiff and the defendant agreed that in consideration that the plaintiff would for a certain period make available to the defendant certain television equipment for demonstration in the defendant’s premises and would by its servants and agents install that equipment and provide certain skilled assistants in and about the operation of that equip­ ment the defendant promised that it would pay to the plaintiff a certain sum of money and the plaintiff did in pursuance of that agreement proceed with the preliminary work and expended certain moneys associated with the installation and demonstration' of that equipment and although the plaintiff was always from the time of the making of that agreement until the refusal and wrongful dis­ charge by the defendant hereinafter mentioned ready and willing to make the television equipment available to the defendant and to complete the installation thereof and to provide the said skilled assistants according to the terms and conditions of the agreement and to perform the agreement in all things on the plaintiff’s part to be performed yet the defendant wrongfully refused to proceed with the installation and demonstration of that equipment and had wrongfully prevented and discharged the plaintiff from the further performance of that agreement by it whereby the plaintiff had incurred expense and had lost the benefit which it would have received under the agreement and money which it would have received for the installation and demonstration of the equipment. The defendant denied (1) the alleged promise ; (2) the allegation of readiness and willingness on the part of the plaintiff; (3) the allegation of wrongful refusal on the part of the defendant to proceed; and (4) the allegation that the defendant had wrongfully prevented and discharged the plaintiff from further performance. The defendant also pleaded (i) that after the alleged promise and before any breach thereof the plaintiff exonerated and discharged the

V O L .

x c i . -

290 HIGH COURT

[1954.

H.0. OF A. defendant from its said promise and from the performance thereof;

1954.and (ii) that the alleged promise was at all material times unlawful

Ki .eo tr o n io virtue of the Gas and Electricity Regulations.

J nd ustiu iss

Issue was joined.

L t d .

V.The trial judge found that the following facts were established ;—

Da v id (1) the plaintiff and the defendant on 20th May 1949 entered into

• !o n bs

L t d .

a contract that the plaintiff would give the demonstration of television in the defendant’s store from 11th to 22nd July 1949, for which, the defendant would pay to the plaintiff £2,500 ;

(2) during the negotiations which led to the contract both parties had in mind that there were in force in Sydney regulations under the Gas and Electricity Act 1935-1948 whereby the use of electricity from electrical supply authorities was restricted ;

(3) during the negotiations both parties had in mind the likelihood of a strike of coalminers and of more severe restrictions on the use of electricity and both understood that sufficient electricity for the operation of the television apparatus could and would be supplied from privately-owned generating plant if it became necessary to do

so ;

.

(4) after the contract had been made and before 11th July a strike of coalminers, with a resultant acute shortage of coal, led to a legal prohibition of the use of electricity supplied by the electricity authorities in retail stores for the purpose of advertisement or display, and greatly restricted its use for lighting or other purposes in retail stores ;

(5) the defendant, about 30th June, requested the plaintiff to postpone the demonstration until some weeks after the conclusion of the coal miners’ strike. The plaintiff agreed in general terms to this request and suggested 22nd August as the commencing date ; (6) the defendant declined to commit itself to 22nd August and suggested that the selection of a commencing date be held in abeyance until the industrial position (i.e. the coalminers’ strike) was clarified ;

(7) some weeks after the coalminers’ strike had terminated the plaintiff requested the defendant to indicate a suitable date for the demonstration ; and

(8) the defendant thereupon refused absolutely to proceed with the demonstration on the ground that it would be no longer beneficial to the defendant as seasonal conditions were filling its store with customers and a television show would merely overcrowd the premises ; and later it added that the contract had been determined by impossibility to perform it.

91 C.L.R.] OF AUSTRALIA.

291

The trial judge found that the defendant was in breach of its contract, found a verdict for the plaintiff in the sum of £1,086 and

C- or A.

gave judgment accordingly.

Ele^ ic

The Full Court of the Supreme Court {Street C.J., Maxwell and

I n d u s t r ie s

L t d .

Owen JJ.) allowed an appeal, set aside the verdict and entered a

V.

verdict for the defendant {Electronic Industries Ltd. v. David Jones

D a v id

J o n es

L t d .

Ltd. (1) ).

From that decision the plaintiff appealed to the High Court.

Further facts appear in the judgment hereunder.

J. W. Shand Q.C. (with him R. J . M. Newton), for the appellant. The plaintiff forbore to execute the contract at the request of the defendant. On the correspondence and the oral evidence there was not any rescission of the contract but merely a request by the defendant for forbearance which was complied with by the plaintiff. The position then was that both parties were bound by a type of estoppel recognized in transactions of this nature : the defendant being bound to accept delivery within some reasonable time and the plaintiff being bound to give delivery within a reasonable time after demand being made {Hartley v. Hymans (2) ). Both parties acted on the basis that the contract would continue but that they would consult with one another as to the date when they would act under the contract. The agreement suggested by the Full Court of the Supreme Court was an unlikely one. The Full Court reached their conclusion by considering what the effect of forbearance would have been on the contract and came to the conclusion that neither party under the circumstances could have considered itself safe, as each party, after request, would be bound to be ready and willing at all times to give performance. This neglected the fundamental prin­ ciple of estoppel. The parties would be quite comfortable knowing that one had requested and the other had acceded to the request and that no sudden further request from either could be made without notice and the allowance of a reasonable time. The parties being bound by estoppel, there was not any reason why it should be assumed that they, of necessity, thought that they had abandoned the original contract. Rescission could only be found if there was a manifest intention by both parties of complete extinction of contractual rights {Morris v. Baron d Co. (3) ). The letters showed that there was not any rescission of the contract but it was, in fact, kept on foot by both parties until the eventual repudiation by the defendant. Under such circumstances and by force of the doctrine

(1) (1954) 54 S.R. (N.S.W.) 102 ; 71

(2) (1920) .3 K.B. 475.

W.N. 67.

(3) (1918) A.C. 1, at p. 19.

292 HIGH COURT

[1954.

H. C. OF A. Qf estoppel the plaintiff was entitled to sue on the old contract

claiming a hreach of it before the due date for performance. This, on the basis that the defendant was legally unable after its request

E l e c t r o n ic

I n d u s t r ie sto state that the contract had been breached by the plaintiff and

L t d .

■V.

unable to say, by the same principle, that it had not been breached

D a v id by it. As this was a contract for work and labour the Statute of

J o n es

L t d .

Frauds does not apply and it was open to the plaintiff to allege that after forbearance by the plaintiff the contract was varied in such a way that the parties had agreed that it was to be performed within a reasonable time or a reasonable time after request by the plaintiff. If the agreement stands there must be a new contract in order to get any rescission of the old contract. Both parties regarded the

old contract as having been extended.

There is not any evidence

that the parties would agree to new dates. The consequences do not flow from the arrangement {Hickman v. Haynes (1) ; Dowling & H. G. Hamilton Pty. Ltd. d Kelly v. Rae (2) ). The difference between a voluntary forbearance and a fresh contract is shown in Besseler Waechter Glover & Co. v. South Derwent Coal Co. Ltd. (3). There is not any evidence that the parties said they would agree to fix a date in the future, nor was the contract rescinded. There was not any suggestion of any future agreement, and there was not any agreement to agree in the future {Hartley v. Hymans (4) ). As to whether the original contract was abrogated see Morris v. Baron cfe Co. (5) ; British & Beningtons Ltd. v. North Western Cachar Tea Co. Ltd. (6).

Sir Garfield Barwick Q.C. (with him E. Lusher), for the respondent. The parties did purport to eliminate from their contract the initial fixed date. They did so in terms by the letters, and they plainly intended to do so by the oral evidence. They removed that fixed date contractually. Neither, thereafter, was bound to supply or take. Under the doctrine of forbearance what the parties do is not contractual. I t is wholly unlikely that the appellant could have given performance on the specified dates. That the parties did purport to vary the existing agreement by deletion of the specified dates was made out on the evidence. As appears from the letters the subsequent date should be any agreed date. The parties certainly did not intend that a tribunal should fix what it considered to be a reasonable date. The parties mutually agreed that they would have the demonstration on an agreed date, and the respondent

(1) (1875) L.R. 10 C.P. 598, at pp.

(4) (1920) 3 K.B., at p. 494.

603, 605.

(5) (1918) A.C.. at pp. 18, 19.

(i) (1927) 39 C.L.R. 363, at p. 370.(6) (1923) A.C. 48, at pp. 67, 68.

(3) (1938) 1 K.B. 408, atpp. 416-418.

91 C.L.R.] o r AUSTRALIA.

293

was prepared to have it on an agreed date. There is not any agreed

date.

This case is stronger than May & Butcher Ltd. v. The King

note to Foley v. Classique Coaches Ltd. (1). An agreement to electronic’ be performed upon a date mutually agreed upon is unenforceable. I n d u s t r ie s J The consideration which would have to be given to a vast number of

matters which affected both or either of the parties would render it

D a v id

impossible. The nature of the contract is the first thing to be considered. Questions which arise are : Did the parties contract­ ually arrange to vary their agreement by getting rid of the fixed date ? and ; Was the subject of the future date to be a matter for their agreement. To be a forbearance it would mean that the original arrangement remained on foot so that the requested party cmdd perform as agreed and the other party would be bound to take it. The parties did not have that in mind. The time was inappropriate. The only significance of the forbearance cases is to call attention to some of the consequences of saying it was a mere forbearance. There is not any point in thinking of a mere for­ bearance if there is not any contractual arrangement. The parties did not agree one with the other to “ wipe out ” the fixed date. The appellant’s plant was not idle at any time, but was used in many places on and during the material dates.

J . W. Shand Q.C., in reply.

Cur. adv. vult.

Th e Court delivered the following written judgment:—

Xov. 26.

The amount at issue in this appeal is £1,086 awarded by Kinsella J. to the appellant as damages for breach of contract. The award was made in a commercial cause in which the respondent was defendant and the appellant was plaintiff. The judgment of Kinsella J. was reversed by the Full Court of the Supreme Court, to which the defendant appealed. From the decision of the Full Court of the Supreme Court the plaintiff now appeals to this Court, which is asked to restore the judgment of Kinsella J.

The contract in question was negotiated in the months of April and May 1949, and was in the result expressed in correspondence concluding with a telegram of 20th May 1949. The defendant conducts a large departmental store in Sydney and the plaintiff conducts an electrical business in Melbourne. At that time the plaintiff was prepared to give demonstrations or exhibitions of television in commercial and other establishments and, to that end, to install temporarily the necessary equipment. The material terms

(1) (1934) 2 K.B. 1, at pp. 17, 22.

294 HIGH COURT

[1954.

H.G. OF A.of the contract between the parties were that the plaintiff, for a

1954. charge of £2,500, would install its apparatus or equipment in the

E l e c t r o n icdefendant’s store and there give demonstrations of television for a

I n d u s t r ie s

period from 11th July to 23rd July 1949 inclusive. The purpose

L t d .

V.of the defendant was to provide an attraction which would draw

D a v id customers to the store. I t was of course obvious that on either

J o n e s

L t d .

side a good deal must be done over a period immediately preceding

McTiernan J. Ui.xon O.J. the date when the exhibition of television commenced. On the Webb ,1. K itto J. defendant’s side it would be necessary to advertise the display of Taylor J.television and also to arrange part of the interior of the store so as

to make the required space available. On the plaintiff’s side its equipment must be freed from other uses, brought to Sydney and set up in the store. The details of all this had been the subject of discussion between the parties. Unfortunately, before the date the parties had fixed, viz. 11th July 1949, a rather serious coal strike began in New South Wales. As a result of the coal strike it appears that there was a considerable falling off in the number of shoppers coming into the city and the defendant decided that it had become most inopportune to proceed with the display of television. Over the telephone the plaintiff in Melbourne was informed of the situation in Sydney and asked if it would postpone the demonstration until another date could be fixed. For the defendant it was stated that after the strike was over it would require two or three weeks for the store to become sufficiently busy and that it would take two or three weeks more to carry out the arrangements for the exhibition. This conversation evoked from the plaintiff a letter dated 30th June 1949 which began by noting the defendant’s inability to proceed with the demonstration of television at that stage or within a period of two or three weeks after the end of the coal strike. The letter proceeded :—“ We appreciate the difficulties you face and although it involves considerable reshuffling of our own arrange­ ments, we will be pleased to vary our agreement with you by an alteration of the dates of the demonstration.” Then followed some information as to certain arrangements which the plaintiff had already made for the use of the equipment in Brisbane and a suggestion that afterwards, viz. on Monday, 22nd August 1949, the demonstration for two weeks in Sydney should commence. To this letter the defendant did not reply until after the date, 11th July 1949, had passed which the contract fixed for the commencement of performance. The plaintiff did not of course make any attempt in fact to begin the installation of the equipment with a view to begin the television exhibition on that day. In pursuance of the communications from the defendant, the plaintiff simply awaited

91 C.L.R.] OF AUSTRALIA.

295

further information as to the time or times which would prove

H. C. OF A.

suitable to the defendant. Thus the situation at the time when

1954.

performance according to the tenor of the contract was due simply ELBCTEOinC

was that the plaintiff, though ready and willing to perform, had

I n d u s t r ie s

L t d .

refrained from tendering actual performance at the request of the

V.

defendant. I t had expressed its willingness to agree on a variation

D a v id

J o n es

L t d ,

of the contract by substituting a new date but no agreement of

Dixon C.J. McTiernan J .

variation had been made.

The original agreement therefore stood

but, without any brea.ch of contract on the part of the plaintiff, Webb J .

Kitto

the date for performance had gone by. Up to this point at all

Taylor .1.

events, the parties had not agreed on a variation of the contract. The plaintiff had simply complied with a request on the part of the defendant to forbear from punctual performance, awaiting mean­ while an answer to the defendant’s proposal for a variation of the contract by fixing a new date. The result of such a request followed by forbearance was to dispense the plaintiff from any actual tender of performance on the due date, the parties remaining bound nevertheless within a reasonable time to give and accept perform­ ance. If it be possible at all to infer that up to this point the parties had agreed on any variation, it could only be an agreement to the limited extent of removing from the contract the fixed day named for the commencement of the fortnight’s exhibition. The difference between the two positions is not of importance in the present case. For the transaction is not one to which the Statute of Frauds applies and on either view there was a contract on foot requiring perform­ ance at a reasonable time to be worked out by the implications which the law makes when the co-operation of the parties is necessary to effect performance and there is no exact time appointed by the tenor of their mutual obligation.

On 14th July the defendant did reply to the plaintiff’s letter of 30th Jime. After excusing himself for the delay in writing on the ground of the uncertainty of the position created by the coal strike which the writer said would, it appeared, be of long duration, he said his company wished to postpone any fixed date for the intended television show in the store. The letter added that a good deal of preparation was necessary and the defendant would certainly prefer to discuss the matter when the industrial position had become clear and in the meantime not to make any decision as to the date proposed by the plaintiff, viz. 22nd August. To this letter the plaintiff on its side did not reply until 1st September. The reply began by acknowledging the defendant’s letter and stating that the plaintiff had appreciated the position in which the defendant found itself and, although it meant a considerable reshuffling of the plaintiff’s

296 HIGH COURT

11954.

ir. c. Off A.

plans at some expense, had been happy to meet the defendant’s

J954.

wishes in the matter. The plaintiff’s letter then proceeded :—“ In view of the settlement some weeks ago of the coal strike and the

E

l'ec tk o n ic

I n d u s t r ie s

fact that the general position is now rapidly returning to normal,

T/i’u.

V.we would like to ask if you are yet able to indicate your wishes as

D a v i d to dates &o., so that wm might complete an itinerary for our tele­

J o n es

L t d .

vision e(|iiipment.” This letter produced from the defendant a

McTiernan J. Dixon C.J. letter declining to proceed with the television show, at what the

Webb J. defendant called “ this late date ”. The writer gave the reason in

Kitfo ,1.

Taylor .1.the following passage I have discussed the matter of television with my co-directors and they would like me to point out that the main reason we wished to have television in the store was as an attraction during a certain period of the wunter months when we would be able to efficiently handle the crowds wffiich it would bring into the store. At the present time, and during the summer period we find that the store is crowded each day and therefore if we were to install television during this period we w'ould overcrowd the store, which would naturally have a detrimental effect on our trade.” The plaintiff wrote asking the defendant to reconsider its decision but after some further interchange of letters the defendant restated the grounds of its refusal to go on and said that it felt sure that the plaintiff wmuld appreciate that the falling through of the proposed demonstration was due entirely to causes beyond the defendant’s control. The plaintiff thereupon treated the contract as repudiated by the defendant and sued for damages.

The contention of the defendant is that in the events that happened the contract became unenforceable for lack of a time certain for its performance. According to this argument the circumstances of the parties and the very character of the trans­ action demanded that by agreement they should ajrpoint a time against which the one would make available its store and the other would install its equipment and as from which the fortnight’s exhibition or demonstration would commence. Without this, so it was said, the agreement was uncertain and insufficient to form the source of binding and enforceable contractual obligations. Originally the missing term was there but subsequently the parties removed it and this meant that until by agreement it was replaced by the fixing of a new date the contract was void for uncertainty. Another form of the argument was that the parties had exhibited clearly enough an intention to make their contract depend upon the existence of an agreed date, fixed in conformity wnth their respective essential needs ; an intention to make the contract depend upon it as something so fundamental to the bargain as to

91 C.L.R.] OF AUSTRALIA,

297

amount in effect to part of the description of the services which

H. C. OF A.

formed the subject matter. Thus, it was said, when the date

1954.

originally fixed went by, whether as a result of a contractual E l e c t r o n ic

variation or of a forbearance by the plaintiff at the defendant’s

I n d u s t r ie s

L t d .

request to tender performance punctually, thereupon an indispens­

V.

able part of the contract was eliminated. Whether the parties did

D a v id

J o n es

L t d .

or did not intend to keep the contract on foot as a binding obligation,

Di.xon C.J.

whether they did or did not intend to rescind the original contract McTiernan .J.

Webb J. K itto J.

in the expectation of subsequently agreeing upon another, and

whatever they may or may not have supposed, so in effect the

Tavlor J.

argument ran, there was in truth an end of all contractual rights

and obligations between them.

Of course if the parties did intend to keep the original agreement no longer on foot, to rescind it, that is the end of the matter. The defendant’s plea of exoneration and discharge would be made out and there is no more to be said.

But it is certain that they did not intend to rescind the original contract and that they never did so. The plaintiff always meant to perform it and hold the defendant bound to it. Never for a moment did the plaintiff mean to exonerate the defendant from the contract. All it meant to do, and all it did do, was to accede to the defendant’s recjuest for a postponement in order to oblige the defendant and consult the interests of the defendant. An inference may possibly be open that the parties impliedly made a preliminary mutual agreement to vary the contract by dropping the old date pending their agreement on a variation substituting a new. If it

were so, for the reason already stated it would not matter.

But it

does not seem to be the true inference. The truth was that the plaintiff expressed its willingness to vary the contract by substi­ tuting a new agreed date, and awaited an answer to its proposal, forbearing in the meantime in pursuance of the defendant’s request to tender actual performance.

In the situation which resulted both parties remained bound by the contract. The fact that there was no longer a fixed date for performance brought into application the principles which impose on parties, in all cases where the performance of their obligations, requires co-operative acts, the duty of complying with the reasonable reque.sts for performance made by the other. In MacTcay v. Dick (1) Lord Blackburn says :—“ I think I may safely say, as a general rule,, that where in a written contract it appears that both parties have: agreed that something shall be done, which cannot effectually be done unless both concur in doing it, the construction of the contract

(1) (1881) 6 App. Cas. 251.

298 HIGH COURT

[1954.

H.C. OF A.is that eacii agrees to do all that is necessary to be done on his part

1954. for the carrying out of that thing, though there may be no express

E l e c t r o n icwords to that effect ” (1). What it was reasonable for the. plaintiff

I n d u s t r ie s

to demand was that within a specified time when the plaintiff’s

L t d .

V.apparatus was not unreasonably committed elsewhere the defendant

D a v id should name a time for the plaintiff to commence the fortnight’s

J o n es L t d .

exhibition or demonstration and . should make available its store

McTiernan J . Dixon ('.J. for a reasonable period in advance of the date for the plaintiff to

Wei)b J .

Kitto ,1.

install its equipment and make the necessary preparations. Of

Taylor J .course the plaintiff could not give the defendant an unreasonably

short period of time or one specially inopportune to the defendant, having regard to the purposes to be served by the exhibition. All that the plaintiff was bound to do was to take reasonable measures to obtain from the defendant a time when he might enter the store for the purpose of performing his part of the contract and no doubt there were more ways than one in which the plaintiff might have acted. By any appropriate demand the plaintiff was entitled to require the defendant to make its store available to the plaintiff to perform its obligation at some proper and reasonable time. It is hardly necessary to repeat the commonplace statement that what is reasonable depends on all the circumstances including the nature and purpose of the express stipulations.

But there is no ground for the supposition that once the named date was allowed to go there could be no implications binding the parties to performance of the co-operative acts necessary to carry out the contract. Nothing could be more certain than that clear and definite contractual obligations undertaken by the parties were intended by them to continue in force notwithstanding that at the instance of one of them the specified day was allowed to pass. It would be absurd for the law to say that nevertheless they were discharged from their obligations. On the contrary the law supplies the means of ensuring the performance of the contract by making very simple and natural implications. Example after example could be given of commonplace contracts for the performance of work or the rendering of services where one man must make himself or his premises or his goods available to another at some mutually convenient time which is left unfixed or if fixed is allowed to pass. A contract to tailor a suit of clothes, to decorate the interior of a building or to repair a ship’s hull is not unenforceable because no time is fixed for the attendance of the customer upon the tailor or for the comnrencement of the decorator’s work or for the entry of the ship into a dry dock when it may become available.

(1) (1881) 0 App. Cas., at p. 263.

91 C.L.R.] OF AUSTRALIA.

299

H. C. OF A.

When it is said that this is a different case because the parties made the fixing of a date the sine qua non of their obhgations, it is

1954.

enough to answer that at no time did they stipulate expressly or E l e c t e o n ic

impliedly that unless they agreed upon a new date the contract

I n d u s t r ie s

L t d .

should be at an end. The intention was that the contract should

V.

go on as a binding obligation notwithstanding that performance on

D a v id

J o n e s

L t d .

the named date was pretermitted.

Dixon C.J.

In the Full Court of the Supreme Court the view was adopted that the contract had either been varied or rescinded and, in the

McTiernan J.

Webb K itto J. J .

former case, it had become unenforceable for want of a specified

Taylor J.

date. The foregoing reasons state why, with respect, it has been found impossible to concur in this view as one which the facts support or which is consistent with the legal consequences flowing from the facts as they appear to have existed.

The appeal should be allowed with costs : the order of the Full Court of the Supreme Court should be discharged and in lieu thereof it should be ordered that the appeal from the judgment of Kinsella J. to that court be dismissed with costs.

Appeal allowed ivith costs. Order of the Full Court of the Supreme Court of New South Wales dis- ' charged. In lieu thereof order that the appeal from the judgynent of Kinsella J. to that court he dismissed, with costs.

Solicitors for the appellant. Remington <& Co.

Solicitors for the respondent, Wight d Pachham.

J. B.