" unfit to travel Refusal to accept others which were fit to travel-Provisional - refusal - Measure of damages - Repudiation by vendor - Sale of Goods Act (Q.) 1896 (60 Vict. No. 6), secs. 14 (2), 39, 52.

By a contract for the sale of a specific flock of sheep of a specified number at 30 May 1, 4. a certain price per head of those delivered and accepted, it was provided that the sheep should be delivered at a place between 200 and 300 miles from where the sheep then were, and to which the sheep would have to travel on foot, and that the purchaser should have the option of rejecting all sheep untit to travel. By the law of Queensland travelling sheep are required to travel at the rate of six miles per day. The destination of the sheep was unknown to the vendor, but it was within the contemplation of the parties

4 CLR 1024

that they would have to travel a considerable distance. The purchaser paid a deposit of £250. In an action by the purchaser for return of the deposit and for damages for non-delivery of the sheep, it appeared that the vendor refused to deliver any of the sheep unless the purchaser would agree to accept and pay for sheep which were in fact unfit to travel more than one day's stage.

Held, that this amounted to a breach of contract by the vendor entitling the purchaser to a return of the deposit.

Held, also, that a refusal by the purchaser to accept some of the sheep which he should have accepted, which refusal the jury found the purchaser was willing to reconsider, did not entitle the vendor to refuse to deliver the sheep which the purchaser was willing to accept.

Held, also, that, even had the refusal been absolute and unjustifiable, provided that it was not of such a number as to go to the foundation of the contract, the vendor would not have been entitled to refuse to deliver those sheep which the purchaser was willing to accept, his remedy being under sec. 39 of the Sale of Goods Act 1896 (Q.).

The jury having found that there was no available market for the sheep at the place of delivery, but that the value of the sheep at that place was not more than the price agreed to be paid for them: Held (Griffith C.J. dissent- ing), that the purchaser was only entitled to nominal damages.

It appeared that the defendant had made a large profit by the re-sale of the sheep: Held by Griffith C.J., that this latter finding was not conclusive as to the estimated loss directly or actually resulting in the ordinary course of events from the sale in breach of contract (Sale of Goods…

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 Francis v Lyon

Details

AGLC: Francis v Lyon [1907] HCA 12
Case: [1907] HCA 12
Decision Date: 4 May 1907

CaseChat Overview and Summary

This case involved a contract for the sale of a specific flock of sheep between Charles Decimus Francis (the purchaser) and Lyon (the vendor). The dispute arose when the vendor refused to deliver any sheep unless the purchaser agreed to accept sheep that were unfit to travel more than one day's stage, despite a contractual provision allowing the purchaser to reject sheep unfit to travel. The purchaser had paid a deposit of £250. The purchaser sued for the return of the deposit and damages for non-delivery. The matter was heard on appeal from the Supreme Court of Queensland.

The legal issues before the court included whether the vendor's insistence on accepting sheep unfit to travel constituted a breach of contract entitling the purchaser to a return of the deposit. The court also had to determine if the purchaser's provisional refusal to accept some sheep, which he was willing to reconsider, amounted to a repudiation of the contract by the purchaser, thereby justifying the vendor's refusal to deliver the remaining sheep. Furthermore, the court considered the measure of damages, particularly in light of the jury's findings regarding the absence of an available market for the sheep and their value relative to the contract price.

The court reasoned that the vendor's refusal to deliver any sheep unless the purchaser accepted those unfit to travel was a breach of contract, entitling the purchaser to the return of his deposit. It was held that a provisional refusal by the purchaser to accept some sheep, which he was willing to reconsider, did not amount to a repudiation of the contract. Even if the refusal had been absolute, unless it went to the root of the contract, the vendor's remedy would have been damages under section 39 of the Sale of Goods Act 1896 (Q.), not a refusal to deliver the sheep the purchaser was willing to accept. The majority of the court found that, given the jury's finding that there was no available market for the sheep and that their value did not exceed the contract price, the purchaser was only entitled to nominal damages.

However, the Chief Justice dissented on the assessment of damages, noting that the vendor had made a significant profit on the resale of the sheep. He concluded that this profit was relevant to the estimated loss resulting from the breach and that a re-assessment of damages was warranted. The final orders reflected the majority decision that the purchaser was entitled to nominal damages, but the precise quantum and entitlement to costs were subject to further consideration or appeal.

Orders