Purcell v Bacon - [1914] HCA 86

ON APPEAL FROM THE SUPREME COURT OF

QUEENSLAND. Contract-Sale of title-Delivery- - Time for delivery-Principal and agent-

Authority of agent to vary contract-Severability of contract-Sale of Goods Act 1896 (Qd.) (60 Vict. No. 6), sec. 14 (3).

By an agreement in writing the plaintiff agreed to sell, and O. as agent for the defendant agreed to purchase, "the following stock, viz.:- About 1,500 mixed cattle (more or less) now depasturing on Lake Dunn with 100 branded cattle and all unbranded cattle given in price £2 per head delivery on or before 26th April 1912 on terms £500 deposit to credit" of plaintiff balance cash on delivery of stock also about 700 mixed cattle (more or less) now depasturing on Ballyneety being the whole of the herd with all unbranded cattle given in price £2 15s. per head. Delivery and conditions of sale same as above." Lake Dunn and Ballyneety were adjoining pastoral properties, one being enclosed and the other unenclosed. It was afterwards mutually agreed in writing that 26th April should be the date of delivery of both lots of cattle and the same place was agreed to for delivery of both. Before 26th April it was arranged between the plaintiff and O., who was the defendant's agent to take delivery, that the collection of the Lake Dunn cattle for delivery should stand over until completion of delivery of the Ballyneety cattle. The Ballyneety cattle were delivered to O. as agent for the defen- dant on 26th April. The defendant refused to take delivery of the Lake Dunn cattle, In an action by the plaintiff against the defendant to recover damages for refusal to take delivery of the Lake Dunn cattle,

19 CLR 242

Held, by Isaacs, Gavan Duffy and Rich JJ. (Griffith C.J. and Barton J. dissenting), on the evidence, (1) that O. had no actual or apparent authority to vary the written contract by substituting a later date for delivery of part of the cattle than that specified by the contract; (2) that the defendant had not ratified any agreement made by his agent O. to accept delivery on a later day; (3) that O. as such agent had no authority to make any arrangement short of a variation of the contract, by which the plaintiff would be exoner- ated from delivery according to the contract; and (4) that the contract as to the Lake Dunn cattle was separate and distinct from that as to the Bally- neety cattle, SO that the acceptance of the latter cattle did not debar the defendant from any right to reject the former cattle.

Held, therefore, by Isaacs, Gavan Duffy and Rich JJ. (Griffith C.J. and Barton J. dissenting), that the defendant was entitled to judgment in the action, and, on a counterclaim by him for breach of the contract to deliver the Lake Dunn cattle, to judgment for nominal damages.

Decision of the Full Court of Queensland Bacon v. Purcell, (1913) S.R. (Qd.), 259, reversed.

APPEAL from…

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 Purcell v Bacon

Details

AGLC: Purcell v Bacon [1914] HCA 86
Case: [1914] HCA 86
Decision Date: 19 December 1914

CaseChat Overview and Summary

The case of *Purcell v. Bacon* involved an appeal to the High Court of Australia from the Supreme Court of Queensland concerning a contract for the sale of cattle. The plaintiff, Bacon, agreed to sell approximately 1,500 mixed cattle from Lake Dunn and about 700 mixed cattle from Ballyneety to the defendant, Purcell, represented by his agent Oliffe. The written agreement stipulated delivery on or before 26th April 1912, with a subsequent written variation fixing the delivery date for both lots as 26th April 1912. The dispute arose when the Ballyneety cattle were delivered and accepted on 26th April, but the plaintiff was not ready to deliver the Lake Dunn cattle on that date, leading to the defendant's refusal to accept them.

The central legal issues before the High Court were: (1) whether Oliffe, as the defendant's agent, had the authority to vary the written contract by agreeing to a later delivery date for the Lake Dunn cattle; (2) whether the defendant had ratified any such agreement made by Oliffe; (3) whether Oliffe had the authority to make arrangements that would exonerate the plaintiff from delivering according to the contract; and (4) whether the contract was severable, meaning the sale of the Ballyneety cattle was distinct from the sale of the Lake Dunn cattle.

A majority of the High Court, comprising Isaacs, Gavan Duffy, and Rich JJ., held that Oliffe lacked the actual or apparent authority to vary the written contract regarding the delivery date for the Lake Dunn cattle. They also found that the defendant had not ratified any such variation. Furthermore, the Court determined that Oliffe, as an agent for delivery, did not have the authority to make arrangements that would excuse the plaintiff from performing the contract as agreed. Crucially, the majority concluded that the contract was severable, treating the sale of the Ballyneety cattle as separate from the sale of the Lake Dunn cattle.

Consequently, the High Court allowed the appeal, reversing the decision of the Supreme Court of Queensland. The majority found that the defendant was entitled to judgment in the action for damages for the plaintiff's breach of contract in failing to deliver the Lake Dunn cattle, and on his counterclaim for the plaintiff's breach, the defendant was awarded nominal damages. Griffith C.J. and Barton J. dissented.

Orders