144 fab ter fe i Bhangoe Poy bHt O00) Javestments v se

[18]

"None of the conditions of this contract shall be varied, waived, discharged or released, either at law or in equity, unless by the express consent of the Minister testified in writing under his hand." The plaintiff Summers on the day the contract was made assigned to the plaintiff Peterson, by way of security for £100 borrowed, all his rights under the contract including rights to the deposit, and other moneys payable by the Commonwealth. He gave no notification of this to the Department. He had no quarry of his own, but had previously inspected for the Commonwealth, and favourably reported on, the marble in a quarry near Orange, called " Caleula," belonging to a man named Walker. On 28th February he entered into an agreement with Walker for the supply to him (Summers) of the marble necessary to carry out the contract with the Govern- ment. Walker's price to Summers was 8s. a cubic foot in the rough. Walker had several blocks of various sizes already quarried, but these blocks had to be cut or sawn down in order to meet the Com_ monwealth requirements. Eight of these blocks as they were in the quarry were delivered by Walker to Summers, and by Summers were tendered to the Government. The only change effected by Summers in their condition was to mark on their surfaces, partly by slightly incised marks covered with red paint and partly by paint alone, the places where, if divided, these blocks would, in Summers' opinion, produce blocks of the size stipulated in the schedule. The main contest between the parties is whether, as the defendant contends, the contract required Summers to deliver ** blocks" of the scheduled size, modified only by the provision in the specification that they should be full enough to bear working and polishing in London and still measure the scheduled sizes, or whether, as the plaintiff Summers contends, it permitted him to deliver blocks from which a number, and as I understand the contention any number, of "the schedule size blocks could be cut, the number only being limited by what might be considered reasonable. A great deal of evidence was given by the plaintiff Summers partly under the guise of " trade usage," and partly under the name of " reasonable inference " from the words in the deed, as showing the necessary or proper way of sending marble to London for the purpose. Trade usage has not been pleaded, but no objection was raised to the evidence on that

[28]

the contract, though it might be terminated as to his performing it, would remain for other purposes. The notice is not sufficiently clear and distinct, and for any ambiguity the plaintiff is not to suffer. However, by a letter next day, he point-blank and emphatically refused to carry out the contract as interpreted by the Department. The Department then waited till 9th June, and gave a notice of cancellation, still purporting to be under condition 28, and still ambiguous. It was also stated in the letter that the question of the refund of security was in abeyance. On 18th June the plaintiff saw Mr. Glynn, and said that he did not desire cancel- lation but modification of the contract. Now, I cannot regard the letter of 9th June as a lawful cancellation of the contract. It purports to be given under condition 28. That condition, however, does not provide for a complete annulment of the contract, and, having regard to the nature and consequences of such a notice, I am bound to read it strictly. I cannot, as invited, read it as a rescission under the implied common law power of accepting the plaintiff's repudi- ation of the contract in his letter of 21st May; first, because it purports to be under the terms of the contract itself, and next because it maintains a hold over the security. But the security was lodged on the express stipulations of the contract as to the conditions on which the defendant could forfeit it. The letter of 9th June, as I read it, asserts a right under the contract to determine whether the security should or should not be forfeited, and so the letter rests, and would be understood by the recipient to rest, on the contract and not on the general common law power. But after that the plaintiff took no step towards performing his contract, which originally was to have been completed in four months. He seems to have maintained his determination not to proceed on the defendant's basis, and to have acquiesced in considering his obligation at an end. The Department also con- sidered it at an end, because they procured the marble from Walker and it has been used in London. After 18th June 1914 the next date I have is 4th May 1916, when the writ was issued.

144 fab ter fe i Bhangoe Poy bHt O00) Javestments v se - [1918] HCA 33 - HCA 1918 case summary — Zoe

At a glance

Court

Decision date

Before

Source

Judgment (52 paragraphs)

= Solicitor for the defendant, Gordon H. Castle, Crown Solicitor for

Parties