THE COMMONWEALTH Contract-Construction-Mode of performance-Trade usage-EvidenceMutual
abandonment of contract-Readiness and willingness to perform contract. MELBOURNE,
To establish a trade usage it must appear that the usage is so well known June 18, 19,
and acquiesced in that it may be reasonably presumed to have been ingredient tacitly imported by the parties into the contract, but that pre- sumption will not be made where there is a written term of the contract which is inconsistent with it to such an extent as impliedly to exclude it.
A contract provided for the supply of a specified number of blocks of marble, each of which should be of such dimensions as to admit of its being worked and polished so as to produce pillars of a specified size.
Held, that the contract could not be performed by supplying blocks of such dimensions that two or more pillars of the specified size could be cut from them, even though that would be a more convenient and businesslike mode of supplying them.
Where there had been no express rescission of a contract for the supply of goods within a specified time and no express repudiation or refusal to perform
Held, on the evidence, that the parties had by their conduct mutually abandoned or abrogated the contract.
The persistent maintenance by one of the parties to a contract of an unten- able construction of it on a matter of essential substance should be regarded as inconsistent with a continuing intention to observe the contractual obliga- tions, and SO would disentitle him to recover damages for not being permitted by the other party to complete the contract.
An action was brought in the High Court by Charles Francis Summers and Ellen Peterson against the Commonwealth in respect of a contract made between the plaintiff Summers and the Com- monwealth for the supply and delivery of marble by the plaintiff Summers to the Commonwealth. The plaintiff Summers claimed £350 for damages for refusal to accept the marble, alternatively as to £162 on a quantum meruit, and the return of £25 lodged by him as security. Alternatively both plaintiffs claimed, or alternatively the plaintiff Peterson claimed, that the £25 and /or the £162 should be paid to the plaintiff Peterson. The Commonwealth, by counter- claim, claimed £50 as damages for a breach of a covenant by the plaintiff Summers not to assign the contract.
The action was heard by Isaacs J., in whose judgment hereunder the material facts are stated.
Walker and Owen Dixon, for the plaintiffs, Morley, for the defendant.
Cur. adv. vult.
ISAACS J. read the following judgment :-This is an action in respect of a contract to supply 671 cubic feet of marble for Australia House, London. The plaintiff Summers was the contractor, and the plaintiff Peterson sues as assignee of Summers. The plaintiffs claim £350, made up as follows: (1) damages for refusal to accept the marble; (2) alternatively as to £162 on…
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
AGLC
Summers v The Commonwealth [1918] HCA 33
Case
[1918] HCA 33
Decision Date
CaseChat Overview and Summary
In an action before the High Court of Australia, Charles Francis Summers and Ellen Peterson (as assignee) sued the Commonwealth for damages arising from the alleged wrongful refusal to accept marble supplied under a contract. Summers sought damages for breach of contract, alternatively a quantum meruit, and the return of a security deposit. Peterson, as assignee, also claimed the deposit and quantum meruit payment. The Commonwealth counterclaimed for damages for breach of a covenant against assigning the contract.
The central legal issues before the court were: first, whether the contract required the supply of marble blocks of specific dimensions from which the final pieces could be worked, or whether it permitted the supply of larger blocks from which multiple specified pieces could be cut; second, whether the plaintiff had demonstrated readiness and willingness to perform the contract according to its terms; and third, whether the parties, through their conduct, had mutually abandoned or abrogated the contract. The court also considered the validity of the plaintiff's claim for a quantum meruit and the entitlement to the return of the security deposit.
Isaacs J. held that the contract required the supply of marble blocks of dimensions sufficient to be worked and polished to the specified sizes, not larger blocks from which multiple specified pieces could be cut. This interpretation was based on the express wording of the specification and schedule, which were inconsistent with any implied trade usage permitting the latter method. The court found that the marble tendered by Summers did not comply with these requirements and was therefore rightly rejected. Furthermore, the evidence indicated that Summers was not ready and willing to perform the contract as interpreted by the Commonwealth, and that his persistent maintenance of an untenable construction of the contract was inconsistent with a continuing intention to observe his obligations. The court also concluded, based on the parties' conduct and correspondence, that the contract had been mutually abandoned or abrogated. Consequently, the claim for damages and quantum meruit failed.
The court ordered judgment for the plaintiff Peterson for £25, representing the return of the security deposit, on the basis that the contract had been terminated by mutual abandonment, which included the abandonment of the right to retain the deposit. On the Commonwealth's counterclaim for breach of the covenant against assigning, judgment was entered for the defendant for 1s., as the Commonwealth had indicated it would not press the counterclaim if no damages were awarded on the plaintiff's claim.