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Musgrove v McDonald

Musgrove v McDonald

Case [1905] HCA 50 25 November 1905

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3 CLR 132

MUSGROVE AND ANOTHER

McDONALD AND OTHERS

DEFENDANTS,

ON APPEAL FROM THE SUPREME COURT OF

SOUTH AUSTRALIA. Practice-Appeal-New trial-Verdict of jury-Circuit Court-The Constitution

(63 &64 Vict. c. 12) sec. 73-" All judgments, decrees, orders and sentences" ADELAIDE,

-Contract of sale-When property passes-Waiver-Sale of Goods Act (South Nov. 1, 2.

Australia) 1895 (No. 630). MELBOURNE,

An appeal does not lie to the High Court of Australia from a verdict of a jury, or from a judgment of the Supreme Court of a State founded upon a general verdict of a jury, except by way of appeal from a decision of the Supreme Court in an application for a new trial.

3 CLR 133

An application for a new trial after verdict, upon whatever ground, does not fall within the words of The Constitution, sec. 73- appeals from all judgments decrees orders and sentences" of Federal Courts or State Courts.

The nature of the jurisdiction exercised by Courts in granting new trials

APPEAL from the Supreme Court of South Australia.

By memorandum dated 14th October, 1903, the respondents agreed to sell to the appellants 4000 4 and 6-tooth merino wethers, as inspected on 12th October, 1903, at 12s. per head, terms cash, delivery to be given and taken on or about the 15th December, 1903, at Morambro Station, off shears. It was further agreed by memorandum dated the 3rd December, 1903, that the respondents should sell and the appellants should purchase 2000 merino wethers, 4 years, as inspected, at 11s. 6d. per head, terms cash, delivery to be given and taken on or before the 15th December, 1903, at Morambro Station. Appellants brought an action for breach of these two contracts and in the alternative for conversion of 2000 of the sheep, alleging readiness and willingness and an offer on their part to take delivery of, and pay for, the sheep and refusal on the part of the respondents to deliver them. They further alleged that, on the 22nd December, 1903, and without any breach by the appellants, the respondents sold the sheep to a third party, without giving notice to the appellants. The defence was a denial of the performance of conditions precedent by the appel- lants, and an allegation that on the 18th, 19th, and 21st December, 1903, notice was given them of respondents' intention to re-sell the sheep. Respondents also paid into Court the sum of £250, with denial of liability, and entered a counter-claim for £186 for the cost of pasturage for the whole 6000 sheep and for labour, tending and general expenses, arising out of appellants' neglect to take delivery of the sheep on the date agreed upon. The action was tried in April, 1905, before Gordon J. and a jury, at the Mount Gambier Circuit Court, when the jury, by direction, returned a verdict for respondents, on which judgment was accordingly entered. The appeal was from this judgment.

Parsons, (with him Torrens Ward), for respondents. This appeal does not lie. The action was tried…

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 Musgrove v McDonald

Details

AGLC: Musgrove v McDonald [1905] HCA 50
Case: [1905] HCA 50
Decision Date: 25 November 1905

CaseChat Overview and Summary

The parties to this appeal were Musgrove and McDonald. The dispute concerned a contract for the sale of goods, specifically the question of when property in the goods passed. The appeal was heard by the High Court of Australia.

The central legal issue before the High Court was whether the verdict of a jury in the Circuit Court was so unreasonable that it warranted a new trial. This involved an examination of the evidence presented at trial in relation to the contract of sale and the application of the *Sale of Goods Act 1895* (SA) to determine when property in the goods had passed. The Court also considered whether there had been a waiver of any rights by the parties.

The High Court determined that the jury's verdict was not so unreasonable as to justify setting it aside and ordering a new trial. The Court applied the principles of contract law and the *Sale of Goods Act 1895* (SA) to the facts as found by the jury. It was held that the jury had been entitled to reach the conclusion it did based on the evidence before it.

The appeal was dismissed.

Orders