By a contract in writing dated 26th June 1912 the defendants by their Griffith C.J., agents sold to the plaintiff " the undermentioned stock, more or less, namely,

19 CLR 430

about 1,600 Canonbar bred ewes six years off shears 1912, about 2,400 Canon- bar bred ewes seven years off shears 1912, now depasturing on Canonbar Station, being the stock recently inspected for the purchaser by self" at 5s. 6d. per head for the six-year-old ewes and 5s. per head for the seven-year- old ewes, the plaintiff being allowed 5 per cent. rejection. The defendants then agreed to deliver and the plaintiff to count and take delivery on a date to be mutually arranged (and which was afterwards fixed at 28th October), unless the manager of Canonbar should have previously notified that that date was impracticable for mustering, having regard to the weather and the state of the country, in which event the count and delivery should take place on a subsequent day to be fixed by the manager, after which date the sheep should be at the risk and expense of the purchaser. The contract then proceeded

If on delivery being completed as aforesaid there shall be less than 1,600 and 2,400 = 4,000 of the said ewes or more than that number up to 4,500 the purchaser shall pay for the actual number so delivered at the rate above mentioned, and such variation of numbers shall not affect or vitiate this con- tract." Sheep of the above-mentioned descriptions, the numbers of which were not known but were estimated from the station books, were at the date of the contract depasturing on Canonbar, which comprised from 200,000 to 300,000 acres, mingled with several thousands of other sheep. At that date there had for some time been a severe drought in that part of New South Wales, which shortly before that date was succeeded by cold winter rains, and it was known that before the end of the drought many of the sheep had died, and that many others were dying in July and August. When the sheep were mustered for delivery on 28th October only 932 of the sheep could be found in existence, of which the plaintiff rejected 42 and the balance of 890 were delivered to him. In an action by the plaintiff to recover damages for the deficiency,

Held, by Griffith C.J. and Barton J. (Isaacs J. dissenting), that having regard to the surrounding circumstances the contract was one for the sale of specific sheep and only applied to such sheep of the particular descriptions (not exceeding 4,500) as were actually in existence at the date of the contract, and that the jury having found that, whatever the number then was, all of them which were not delivered had died in the interval,…

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 Goldsbrough Mort & Co Ltd v Carter

Details

AGLC: Goldsbrough Mort & Co Ltd v Carter [1914] HCA 80
Case: [1914] HCA 80
Decision Date: 16 December 1914

CaseChat Overview and Summary

This case involved an appeal from the Supreme Court of New South Wales concerning a contract for the sale of sheep between Goldsbrough, Mort & Co Ltd (the appellants) and Alexander Hunter Carter (the respondent). The dispute arose when the number of sheep delivered was significantly less than the estimated quantities specified in the written contract. The respondent sued for damages, alleging breach of contract and breach of warranty.

The central legal issues before the High Court were whether the contract was for the sale of specific sheep or a quantity of unspecified sheep, and whether the descriptive numbers in the contract constituted a warranty that such numbers were in existence at the time of the contract or would be available for delivery. The court also had to consider the effect of the severe drought and subsequent rains on the sheep's survival and the parties' obligations under the contract.

The majority of the High Court, comprising Griffith C.J. and Barton J., held that the contract was for the sale of specific sheep, being those depasturing on Canonbar Station at the time of the contract, and not a contract for a specified quantity of sheep. They reasoned that the words "more or less" and "about" in relation to the numbers of sheep indicated estimates rather than warranties, particularly given the circumstances of the sale, the nature of the property, and the price being per head. The court applied the principles that in a contract for the sale of specific goods, the goods must exist at the time of the contract and continue to exist until the time of performance, unless otherwise agreed. They found that the significant reduction in numbers was due to natural causes (death from drought and subsequent rains) without fault of the seller, and that the contract only applied to such sheep as were in existence at the time of the contract. Consequently, the appellants were not liable for the non-delivery of sheep that had perished.

The High Court allowed the appeal, reversing the decision of the Supreme Court. The final orders were that the appeal be allowed, and the judgment of the Supreme Court be set aside, with judgment entered for the defendants (appellants) on all counts.

Orders