W Scott Fell & Co Ltd v Lloyd

[1906.

572   HIGH COUKT

_ [H K ;H c o u r t Ob’

A U S T R A L IA .]

W. SCOTT, FELL AND COMPANY, LIMITED

A p p e l l a n t s ;

P l a i n t i f f s ,

ANO

F. H. LLOYD

R e s p o n d e n t .

D e f e n d a n t ,

ON A P P E A L FROM T H E S U P R E M E C O U R T

OF

N E W SO UTH

W A LES.

H. C. OF A.

Action on contract—Sale o f goods—Equitable plea— Contract induced by concealment

1906.  oj material fac ts—Fraud.

In an action by a purchaser against a vendor for non-delivery on a contract for the sale of coal whicli th e vendor had previously contrac ted to buy from

Sydney ,

Dec. 10, I I .

a colliery com pany, the defendant pleaded, as a defence upon equitable

Gritfith C. T., grounds, th a t before the m aking of the con trac t sued upon the colliery com­

Barton and

Isaacs JJ.pany w ith whom he had contracted for the supply of th e coal had agreed w ith

o ther persons no t to supply coal for sh ipm ent to South A ustra lia except to those persons, and had accordingly refused to supply coal to th e plaintiflfs for th a t purpose, and the plaintiffs, by fraudu len tly concealing from the de­ fendan t those facts and th e fac t th a t they in tended to sh ip th e coal in question to South A ustra lia , induced th e defendant to en te r in to th e co n trac t sued upon, and the colliery company refused to deliver th e coal, a t th e defendan t’s order, to the plaintiffs, which was the non-delivery sued for, and the de­ fendan t thereupon repudiated th e contract. T here being no allegation to the con trary in the plea, i t was to be assum ed as against th e defendan t th a t the agreem ent by the company no t to supply coal was subsequent to th e con tract of sale betw een th e company and the defendant.

Held, th a t the facts alleged to have been concealed by th e purchasers from the vendor were no t such as th e purchasers w ere bound by any d u ty to disclose, and therefore th e mere non-disclosure of them did not, under th e circum ­ stances alleged, am ount to fraudu len t concealm ent such as w ould en title the vendor, e ither in law or in equ ity , to be relieved from perform ance of the con tract, and th e plea…