George Wills & Co Ltd v Davids Pty Ltd - [1957] HCA 6

GEORGE WILLS AND COMPANY LIMITED

DAVIDS PROPRIETARY LIMITED

RESPONDENT. PLAINTIFF,

ON APPEAL FROM THE SUPREME COURT OF Sale of Goods-Sale by description-Breach of warranty-Canned beetroot-Deteriora-

tion in storage-Merchantable quality-Implied condition. District Court-Appeal-Questions of law-Notation by trial judge-District Courts

Act 1912-1953, S. 144.

The buyer of a number of cases of canned beetroot in vinegar sued the seller for breach of an implied condition that the goods were of merchantable quality. Although the documents evidencing the contract referred merely to canned beetroot, both parties knew that the subject matter of the contract was in fact beetroot canned in vinegar, and the labels on the cans SO described the contents. The buyer's complaint was that the goods could not be held in stock without unreasonably quick deterioration. On examination fourteen to sixteen months after delivery some cans had developed hydrogen swells, some were blown SO that liquid escaped from them. It appeared that beetroot canned in brine had not been found liable to deteriorate more rapidly than other canned vegetables and that a reputation for rapid deterioration did not attach in the trade to canned beetroot generally. In fact canning beetroot pickled in vinegar was introduced only some two or three years before the transaction and afterwards because of the short life of the product it was discontinued. The trial judge found that the fair life of tinned vegetables was three years, of beetroot canned in brine somewhat less and of beetroot canned in vinegar one year. He examined the wholesale grocery practice in relation to canned goods generally and held that the canned beetroot in question was not at the date of delivery of merchantable quality which was to be expected of cans of preserved foodstuffs. His Honour accordingly found for the plaintiffs, and his decision was upheld in the Full Court of the Supreme Court. On appeal,

98 CLR 78

Held: that the contract was and was understood to be for the supply of canned beetroot in vinegar and not simply beetroot and since when canned in vinegar beetroot has a tendency to deteriorate after a year the goods GEORGE

supplied were not unmerchantable merely because they did SO deteriorate and did not last as long as beetroot differently preserved.

Counsel for the appellant (defendant), at the conclusion of evidence in the District Court, addressed the judge and submitted that there should be verdict for the defendant. He did not at any stage specifically ask the judge to note any points of law.

Held, that although counsel did not specifically ask for any such notes to be made an examination of the reasons of the trial judge showed that the material questions were presented to him for decision, and the provisions of S. 144 of the District Courts Act 1912-1953 did not preclude an appeal to

Decision of the Supreme Court of New South Wales (Full Court): George Wills &Co. Ltd. v. Davids Pty. Ltd. (1956) S.R. (N.S.W.) 237; 73 W.N. 368,

APPEAL from the Supreme Court…

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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Details

Case: [1957] HCA 6
Decision Date: 18 February 1957

CaseChat Overview and Summary

The case of George Wills & Co Ltd v Davids Pty Ltd involved a dispute over the sale of canned beetroot. Davids Pty Ltd, the buyer and wholesale grocer, sued George Wills & Co Ltd, the seller, for breach of an implied condition that the goods were of merchantable quality. The beetroot, canned in vinegar, deteriorated in storage approximately fourteen to sixteen months after delivery, leading to some cans swelling and leaking, and ultimately being condemned by health authorities. The seller's defence was a denial of breach, asserting that the deterioration was not due to a defect at the time of sale but rather the inherent nature of beetroot canned in vinegar.

The High Court was required to determine whether the canned beetroot, which had a recognised shorter shelf-life when canned in vinegar compared to other canned foodstuffs, was of merchantable quality at the time of sale. This involved considering the meaning of "merchantable quality" under the Sale of Goods Act, particularly in relation to goods with a known, limited lifespan. The court also had to consider whether the appeal from the District Court to the Supreme Court was competent, given that the appellant's counsel had not specifically requested the trial judge to note points of law, as required by section 144 of the District Courts Act 1912-1953.

The High Court reasoned that the contract was understood by both parties to be for the supply of beetroot canned in vinegar, a product with a known tendency to deteriorate after approximately twelve months. The court held that the goods were not unmerchantable merely because they deteriorated within this expected timeframe, as this was an inherent characteristic of the product as described and understood by the parties. The trial judge's approach of comparing the beetroot's lifespan to that of other canned goods, and considering the expectations of wholesale and retail grocers, was deemed an erroneous test for merchantability. The court also found that the appeal to the Supreme Court was competent, as the material questions had been presented to the trial judge for decision, despite the lack of a formal request for notes.

Consequently, the High Court allowed the appeal, setting aside the judgment of the Supreme Court and the District Court. The court ordered that judgment be entered for the defendant (George Wills & Co Ltd) in the District Court action, with costs.

Orders