David Jones Limited v Willis [1934] HCA 47

David Jones Limited v Willis [1934] HCA 47 - HCA 1934 case summary — Zoe

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as asking for one particular species of the genus shoe, as contrasted with other species such as running shoes or court shoes, or whether I should be regarded as asking for the genus shoe, with an intimation that I rely on the shop assistant to give me a pair suitable for ordinary walking. If the former is the proper construction the case is within sec. 19 (2); and there is an implied condition that the shoes shall be reasonably fit for the use for which walking shoes purport to be designed, i.e., for walking. If the latter, the case is within sec. 19 (1), and there is an implied condition that the shoes shall be reason- ably fit for walking. In either event, the implied condition is shown to be broken if the shoes fall to pieces, not as the result of wear, but because they were never fit to be worn (Bristol Tramways &c. Car- riage Co. v. Fiat Motors Ltd. (2))." I donot take his Honor to mean that the alternatives he stated are mutually exclusive. There appears to be no reason why in the latter of the two cases he puts the jury should not also find that there was a sale of the goods by description in addition to an intimation by the buyer to the seller that she relied on the seller's skill or judgment in such a way as to raise the implication that the goods would be reasonably fit for the purpose of walking. Adopting the view expressed in the passage I have quoted from the learned Chief Justice's judgment, the Full Court held that there was evidence upon which the jury might find for the plaintiff under either of the implied conditions, as I under- stand it according to their interpretation of the transaction, and that there had been no substantial misdirection by the learned trial Judge. The Court also decided against the defendant's contentions taised on its behalf as to the exercise of the learned trial Judge's discretion in ordering a new trial limited to damages. Upon the application of the defendant to this Court for leave to appeal from the decision, the Court took the view that the real question of

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ance. I think the result of the authorities which are collected not only in Grant's Case (1) but also in the judgment appealed from now Dav is that, whenever the description of the goods enters into the transac- tion, so that the buyer must be taken to rely upon it to a substantial degree as well as upon the identity of the goods, it is a sale by descrip- tion. In the present case the plaintiff called for shoes - walking shoes. Both these descriptions are wide and general, and the correspondence of the goods to the description at once appeared on the production of the articles. Nevertheless the description of the articles was a prerequisite to their selection, and, in my opinion, a jury would be at liberty to find that it entered into the transaction so as to be part of the bargain. The case is not one in which the buyer asks for a specific article which he sees, such as a china orna- ment, and then is told, in answer to his inquiries, that it is dresden china. He does not buy under the description of dresden china, although he may, perhaps, have an express warranty that the china is dresden. The case is one in which a dealer in articles of a descrip- tion is asked to supply goods of that description for the inspection and selection of the buyer. For these reasons I think the appeal fails upon the ground that there was evidence of a cause of action under the second sub-section. The question whether there is evidence of a cause of action under the first sub-section in the present state of the authorities presents no difficulty except as to one element. The goods (shoes) were of a description which it was in the course of the seller's business to supply. It is decided that a particular purpose may be constituted by the only purpose for which the goods are useful, or by the purpose for which in general they are used (see, in particular, Preist v. Last (2) ). Upon the facts there is no doubt that it was open to the jury to find that the buyer expressly made known to the seller the fact that she required the shoes for the ordinary purpose of walking out of doors. The question of difficulty is whether they were at liberty to find that she did so so as to show that the buyer relied on the seller's skill or judgment. This fact must be found as a reality (see per Lord Sumner in Medway Oil and Storage Co. v. Silica Gel Corporation (3) ). But itis enough " that the reliance in question must

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be a most comfortable shoe. The respondent looked at the shoes presented to her, and tried them on her feet. She finally purchased the pair recommended by the saleswoman. The respondent only wore them three times in nine months, but she found they were nice comfortable shoes to walk in. On the third time of wearing them, the respondent was walking down some steps in a street leading down to another street, and had proceeded down a few steps when she felt the heel of one of the shoes give, and saw it on the next step, as she slipped and fell. The result of the fall was a broken leg. An action was brought by the respondent against the appellant, founded upon the provisions of sec. 19 (1) of the Sale of Goods Act 1923 of New South Wales: " Where the buyer expressly or by implication makes known to the seller the particular purpose for which the goods are required so as to show that the buyer relies on the seller's skill or judgment, and the goods are of a description which it is in the course of the seller's business to supply (whether he be the manufacturer or not), there is an implied condition that the goods shall be reasonably fit for such purpose." A particular purpose is "a definite purpose, expressly or impliedly communicated to the seller, for which the buyer buys the goods" (Benjamin on Sale, 6th ed. (1920), p. 715; 7th ed. (1931), p. 653; Cammell, Laird & Co. v. Manganese Bronze and Brass Co. (1)). It is not necessarily distinct froma general purpose. And it may appear from the contract or from evidence dehors the con- tract or from the description of the article itself (Ibid.). It has been held in Scotland that an averment that the buyer had made known to the seller that the buyer required boots for his own wear amounted to a disclosure of a particular purpose for which the goods were required (Thomson v. Sears & Co. (Trueform Boot Co.) (2)). But whether the buyer relied on the seller's skill or judgment is "a ques- tion of fact to be answered by examining all that was said or done with regard to the proposed transaction on either side, from its

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Judgment (177 paragraphs)

Cited By (4)