Foran v Wight

Foran v Wight - [1989] HCA 51 - HCA 1987 case summary — Zoe

[54]

If Gunson [the purchaser] were suing Mrs. Reschke [the vendor] for damages an averment of his readiness and willingness to pay his purchase money would under Order XX, rule 13, be implied But that would be so because the condition would go to the cause of action. (My emphasis.) Subsequently, in Cohen & Co. v. Ockerby & Co. Ltd. [47] , where buyers brought an action against the sellers for damages for non-delivery of goods, Isaacs J. discussed the buyers' right to sue on the footing that they had been absolved from performing their obligation, concurrent with the sellers' obligation to deliver, to establish a local credit with a bank to enable the sellers to obtain payment. His Honour said [48] : In my opinion Byrne v. Van Tienhoven [49] goes to show that a party so absolved, though he may defend an action against him, by merely showing he was so absolved, yet, if he sues the other party whose refusal he relies on, he must show he was ready and willing to perform his part, had he not been absolved from actual performance. "Readiness and willingness" is in that case a condition precedent. Later, in Bowes v. Chaleyer [50] , this Court held that judgment must be given for the defendant (the buyer) in an action for damages for breach of contract for the sale of goods brought by the seller where the plaintiff had affirmed the contract, after repudiation by the buyer before the time for performance, on the ground that the plaintiff was not ready and willing to perform the contract according to its terms - he had not arranged for shipment of the goods as promised - and he was not absolved from performance by the repudiation [51] . And in Henry Dean & Sons (Sydney) Ltd. v. P. O'Day Pty. Ltd. [52] Knox C.J. said: The meaning of the averment of readiness and willingness is that the non-completion of the contract was not the fault of the plaintiff and that he was disposed and able to complete it if it had not been renounced by the defendant (Cort v. Ambergate Rly Co. [53] ). Henry Dean & Sons was not followed by the House of Lords on another point: see Gill & Duffus S.A. v. Berger & Co. Inc. [54] . 1. (1781) 2 Dougl. 684; [99 E.R. 434]. 2. (1914) 18 C.L.R. 452, at pp. 462-463. 3. (1914) 18 C.L.R., at pp. 467-468. 4. (1914) 18 C.L.R., at p. 467. 5. (1917) 24 C.L.R. 288. 6. (1917) 24 C.L.R., at p. 298. 7. (1880) 5 C.P.D. 344. 8. (1923) 32 C.L.R. 159. 9. (1923) 32 C.L.R., at p. 198. 10. (1927) 39 C.L.R. 330, at p. 336. 11. (1851) 17 Q.B. 127 [117 E.R. 1229]. 12. [1984] A.C. 382, at p. 392.

[87]

There is a long line of authority to support the proposition that, in order to ground a case of common law estoppel by representation, the representation must be as to an existing fact, a promise or representation as to future conduct being insufficient: Legione v. Hateley [32] ; Waltons Stores (Interstate) Ltd. v. Maher [33] . In Waltons Stores [34] Wilson J. and I pointed out that if there was a basis for holding that common law estoppel arises where there is a mistaken assumption as to future events, it was to be found in reversing Jorden v. Money [35] and in accepting the powerful dissent of Lord St. Leonards in that case. In the absence of argument we declined to embark on that course and instead decided the case by reference to promissory estoppel which extends to representations or promises as to future conduct: see Legione v. Hateley [32] ; Waltons Stores [1] . On further reflection it seems to me that we should now recognize that a common law estoppel as well as an equitable estoppel may arise out of a representation or mistaken assumption as to future conduct. To do so would give greater unity and consistency to the general doctrine of estoppel. Moreover, the clear acceptance by the Court in Waltons Stores of the doctrine of promissory estoppel makes this course inevitable. After all, it was the apprehension that representations as to future conduct, unsupported by consideration, would invade the territory of promises for valuable consideration that led to the confinement of common law estoppel to representations of existing fact. Given the recognition of promissory estoppel and the fact that the doctrine may preclude the enforcement of rights at least between parties in a pre-existing contractual relationship, the dam wall has fractured at its most critical point with the result that we should accept that a representation or a mistaken assumption as to future conduct will in appropriate circumstances create a common law estoppel as well as an equitable estoppel.

[111]

Upon the facts alleged in this declaration, the plaintiff is substantially in the same situation, for the purpose of recovering the money, as if all had been done on his part which he engaged to do. It does not follow that he shall recover the whole purchase-money, but he is in the same situation for the purpose of recovering damages for the non-payment of the price, as if all had been done by him. In Cort v. Ambergate Rly Co. [25] , Lord Campbell C.J., explaining Ripley v. M'Clure [26] , said [27] : There being an executory contract, whereby the plaintiff agreed to sell and the defendant to buy, on arrival, certain goods, to be delivered at Belfast at a certain price, payable on delivery, it was held that a refusal by the defendant before the arrival of the cargo to perform the contract was not of itself necessarily a breach of it, but that such refusal, unretracted down to and inclusive of the time when the defendant was bound to receive the cargo, was evidence of a continuing refusal and a waiver of the condition precedent of delivery, so as to render the defendant liable for the breach of contract. This passage, cited with approval by Dixon C.J. [28] and by Kitto J. [29] in Peter Turnbull, illustrates the governing principle which Kitto J. stated thus: The principle, which applies whenever the promise of one party, A, is subject to a condition to be fulfilled by the other party, B, may, I think, be stated as follows. If, although B is ready and willing to perform the contract in all respects on his part, A absolutely refuses to carry out the contract, and persists in the refusal until a time arrives at which performance of his promise would have been due if the condition had been fulfilled by B, A is liable to B in damages for breach of his promise although the condition remains unfulfilled. A's refusal to perform is an intimation to B that a tender of performance by B will be nugatory. (I shall hereafter follow the terminology of "A" and "B" - "A" to refer to a party who has declared that he will not perform his obligation under a contract containing mutually dependent and concurrent conditions; "B" to refer to the party to whom the intimation is given and who in reliance thereon omits to tender performance of his obligation.) Where A refuses to complete and thereby intimates to B that he need not trouble to fulfil a concurrent condition on which A's obligation to complete is dependent, B may be entitled to sue for A's actual breach though B elected not to terminate the contract before the time for completion arrived. Kitto J. said in Peter Turnbull [30] : What does it matter for the purposes of that action that the refusal was not treated as ending the contract and as founding an action for anticipatory breach? The damages claimed are not for loss of the contract by premature termination, but for loss of the benefit which performance of the contract in accordance with its terms by both parties would by now have produced to B but for the fault of A. It is a cause of action which the facts I have assumed make out, unless the non-fulfilment of the condition is an answer to it; and as to that the inescapable fact is that A's refusal was a continuing intimation that the condition need not be observed, and it did not become any the less an intimation to that effect because B chose not to determine the contract before its time. The intimation having continued until the time came when A would certainly have been in default if the condition had been fulfilled, the law, as I understand it, treats A's obligation as absolute, and holds B entitled to damages for not having got what A promised he should have in the event of the condition being fulfilled. (Emphasis added.) Following Peter Turnbull, this Court held inMahoney v. Lindsay [31] that a purchaser is not in breach of his obligation to complete on the day fixed for completion if he abstains from tendering the price on that day because of an intimation by a vendor that it is useless to do so since the vendor does not intend then to perform his part of the contract. 1. (1841) 7 M. & W. 474 [151 E.R. 852]. 2. (1841) 7 M. & W., at p. 484 [151 E.R., at p. 856]. 3. (1841) 7 M. & W., at p. 485 [151 E.R., at p. 857]. 4. (1851) 17 Q.B. 127 [117 E.R. 1229]. 5. (1849) 4 Exch. 345 [154 E.R. 1245]. 6. (1851) 17 Q.B., at pp. 147-148 [154 E.R., at p. 1237]. 7. (1954) 90 C.L.R., at p. 247. 8. (1954) 90 C.L.R., at p. 250. 9. (1954) 90 C.L.R., at p. 251. 10. (1980) 55 A.L.J.R. 118; 33 A.L.R. 601.

[113]

A purchaser who is thus dispensed from his obligation to pay the price at the time stipulated for completion is not thereby discharged from his obligation to pay the price at some later time. A stipulation for completion on a fixed day creates both a substantive and a temporal obligation; an obligation to complete and an obligation to do so on the fixed day. A purchaser who acts on an intimation from the vendor that the vendor will complete but not on the fixed day is dispensed from his temporal obligation, so that his omission to tender the price on that day is no breach; but, unless the contract is terminated, his obligation to pay the price remains after the day fixed for completion is past. When a promisor's intimation of non-performance relates only to the temporal aspect of the promise and the promisee either cannot rescind or elects not to rescind on account of that intimation, the promisee is not forever released from the substantive obligation; he is dispensed from performance only until the promisor gives him reasonable notice that the promisor has performed or is ready, willing and able to perform his obligation. (If it were otherwise, it would be pointless for a party who has once been in default in the timeous performance of his obligation under a contract which continues to bind both parties to give to the other a notice to complete.) When no time is fixed for performance of mutually dependent and concurrent obligations and B abstains from tendering performance in reliance on A's intimation that he will not perform the contract, B must give A a notice to perform before A will commit an actual breach - as distinct from an anticipatory breach - of the contract: Carr v. J.A. Berriman Pty. Ltd. [33] . (I leave aside cases of delay so gross as to amount to repudiation: see Laurinda Pty. Ltd. v. Capalaba Park Shopping Centre Pty. Ltd. [34] .) But it is otherwise when the time for performance is fixed by the contract. In such a case, A's temporal obligation is breached by non-performance at the stipulated time.

[116]

When A wrongfully repudiates his contractual obligations in anticipation of the time for their performance, he presents the innocent party B with two choices. He may either affirm the contract by treating it as still in force or he may treat it as finally and conclusively discharged. There is no third choice, as a sort of via media, to affirm the contract and yet to be absolved from tendering further performance unless and until A gives reasonable notice that he is once again able and willing to perform. Such a choice would negate the contract being kept alive for the benefit of both parties and would deny the party who unsuccessfully sought to rescind, the right to take advantage of any supervening circumstance which would justify him in declining to complete. The proposition that, if repudiation by anticipatory breach is not accepted, the contract subsists is undoubted; but it does not follow that an intimation by one party that tender of performance by the other will be nugatory cannot, if acted on, dispense the other from his obligation of performance under the contract by raising an equitable estoppel. It may be that Lord Ackner acknowledges some role for estoppel in this context for he said [37] : it is always open to [B], who has refused to accept [A's] repudiation of the contract, and thereby kept the contract alive, to contend that in relation to a particular right or obligation under the contract, [A] is estopped from contending that he, [A], is entitled to exercise that right or that he, [B], has remained bound by that obligation. If [A] represents to [B] that he no longer intends to exercise that right or requires that obligation to be fulfilled by [B] and [B] acts upon that representation, then clearly [A] cannot be heard thereafter to say that he is entitled to exercise that right or that [B] is in breach of contract by not fulfilling that obligation. 1. (1980) 55 A.L.J.R. 118; 33 A.L.R. 601. 2. [1989] 1 A.C. 788, at p. 805. 3. [1989] 1 A.C., at pp. 805-806.

[138]

Salmon L.J. in Esmail v. J. Rosenthal & Sons Ltd. [61] and Lord Ackner (citing Salmon L.J.) in Fercometal [62] treat Braithwaite as a case of acceptance by the seller of the buyers' repudiation by anticipatory breach. Treating the buyers as having repudiated by committing an anticipatory breach and the seller as having accepted the repudiation, Lord Ackner thought that no question of actual breach by the buyers had arisen and that the quality of the timber in the first consignment was relevant only to the issue of damages. Had Lord Ackner regarded Braithwaite as a case of actual breach, he would have thought it to have been wrongly decided for the seller could not and did not perform its obligation under the contract by delivering a consignment of the stipulated quality. His Lordship rejected a proposition which (subject to the proviso of readiness and willingness) I accept, namely, "that where a party repudiates, the non-repudiating party, who does not accept the repudiation and affirms the continued existence of the contract, is thereby absolved from tendering further performance under the contract while the repudiatory attitude is maintained" [63] . If that proposition (subject to the proviso) be correct, it is immaterial whether the buyers' breach be treated as anticipatory or actual. In my view, the critical issue in Braithwaite was whether the seller, at the time when the buyers intimated that they would refuse to accept the consignment of 63 tons, were substantially incapable of delivering rosewood of a quality which the buyers were bound to accept. If the seller were so incapable, the buyers' refusal to accept - whether it be treated as an anticipatory or an actual non-acceptance - was justified and the buyers were not in breach; if the seller were not so incapable, the buyers' refusal to accept was a breach of contract. On one view of the facts, the quality of the rosewood in the consignment practically determined the seller's capacity to deliver rosewood of the stipulated quality; on another view, if the quality of the consignment was defective the seller still had an opportunity to acquire and tender rosewood of the stipulated quality. On the former view, the quality of rosewood in the consignment was the issue. Mathew L.J. in the Court of Appeal held [64] that: "there was, in my opinion, abundant evidence to shew that the first consignment was sound and was merchantable as rosewood, and would have been properly described as rosewood in the trade, though it would have been subject, as regards a portion of the consignment, to a small reduction in price." But that view of the facts was not adopted by Collins M.R., with whom Cozens-Hardy L.J. agreed. Collins M.R. did not consider the finding of the trial judge that, had the buyers not wrongfully repudiated the consignment before delivery, they would have been entitled "to repudiate the whole" [1] . Yet the majority in the Court of Appeal upheld the trial judge's award of damages. His Lordship said [2] :

[142]

Where B, being otherwise ready and willing to perform his part of mutually dependent and concurrent obligations, acts on A's intimation of non-performance and does not tender performance of his own obligation, he is entitled to damages for A's non-performance. In assessing the damages, it is necessary to form an estimate of the benefit to which B would have been entitled had A performed his contractual obligation. Where, as in this case, a purchaser who has made no announcement that he will not complete and who is attempting to raise finance in order to complete when the vendor intimates that he will not complete on the stipulated day, the purchaser's entitlement to damages for the vendor's failure to complete on that day depends on two related but distinct questions: first, whether the purchaser was at the time of the intimation substantially incapable of raising the finance and, second, whether it is more likely than not that the purchaser would have succeeded in raising the finance. A reasonable prospect of a purchaser's raising finance (the converse of "substantial incapacity") suffices to show that the purchaser was ready and willing at the time of the intimation, but it does not establish that the purchaser would have been ready and willing to complete when the time for completion arrived and would have become entitled to the benefit of the completed contract. The onus is on the purchaser to establish his damages on the balance of probabilities. The readiness and willingness which must be shown by a purchaser in proof of his damages for the vendor's breach in failing to complete at the stipulated time is readiness and willingness to pay the price at that time: Hensley v. Reschke [6] . There, Isaacs and Rich JJ. pointed out that: "it must never be forgotten that readiness and willingness in this sense means readiness and willingness in the event of the vendor being able to carry out the contract as the purchaser insists by his action it should have been carried out, and claims damages on that basis." The distinction between readiness and willingness up to the time of an intimation of non-performance and readiness and willingness when the time for performance arrives is not drawn by Isaacs J. in Cohen & Co. [7] . There he cited Hensley v. Reschke although the latter case is concerned not with the elements of a cause of action for breach but with proof of damage. Readiness and willingness to pay the price when the time for completion arrives is a condition precedent to the recovery of substantial damages, but proof of that kind of readiness and willingness is not essential to establish that a vendor who has given an intimation of non-performance and who fails to perform is in breach.

[151]

In the ordinary case of a contract for sale of land, the contractual obligations of the parties to complete the sale are concurrent and conditional in the sense that the vendor is not obliged to convey the land and the purchaser is not obliged to pay the purchase price otherwise than upon concurrent performance by the other party. Neither vendor nor purchaser will be guilty of breach of contract if he fails to complete within the time or upon the day fixed by the contract unless the other party tenders performance of his concurrent obligations. The position is, however, different if one party has unambiguously informed the other party that he will not perform his obligations within the time made of the essence of the contract. In such a case, the refusal to perform constitutes an intimation to the other party that the tender of performance of his concurrent obligations will be nugatory and futile. If the refusal continues until after the time allowed for performance, the refusing party's failure to complete within the stipulated time will constitute an actual breach of the contract notwithstanding that the other party has acted on the information and refrained from going through the motions of tendering performance (see Mahoney v. Lindsay [11] ). In Peter Turnbull & Co. Pty. Ltd. v. Mundus Trading Co. (Australasia) Pty. Ltd. [12] Dixon C.J. explained that position by saying that, in such a case, the innocent party, who "acts upon" the express or implied intimation that "it is useless to perform" is "dispensed from" performance. Kitto J. [13] explained that what was meant "by saying that fulfilment of the condition has been dispensed with is that" [the refusing party's] "conditional obligation is to be treated, for the purposes of an action for non-performance, as if it had been made absolute by a fulfilment of the condition". Elsewhere in his judgment, Kitto J. stated that he was "supposing a case where in all the circumstances the refusal necessarily conveys to [the other party] that he need not trouble to fulfil a condition " [14] . Both Dixon C.J. and Kitto J. referred, with approval, to Lord Campbell C.J.'s statement in Cort v. Ambergate Rly Co. [15] which identified the applicable doctrine as "waiver". The line between the somewhat arbitrary doctrine of waiver and the doctrine of estoppel by conduct has always been a vague one (see Craine v. Colonial Mutual Fire Insurance Co. Ltd. [16] and the former doctrine is being increasingly enveloped and rationalized by the latter. At least in cases such as Peter Turnbull & Co., where the focus is upon action by one party "upon" what was conveyed to that party by the other party, the applicable primary doctrine should be seen in a modern context as that of estoppel. The present is such a case.

[154]

In these circumstances, the law will not allow the vendors to depart from the state of affairs upon the basis of which they had, by their conduct, induced the purchasers to act. The doctrine of estoppel by conduct explained by Dixon J. in Thompson v. Palmer [17] , and Grundt v. Great Boulder Pty. Gold Mines Ltd. [18] , is applicable to preclude the vendors from asserting that the purchasers' failure to tender performance or to have the purchase price ready and available on the stipulated day either constituted a failure to discharge a contractual obligation upon the performance of which the vendors' own obligations remained conditioned or placed the purchasers themselves in breach of contract. In that regard, it is unnecessary to decide whether the vendors' representation related to a present or future state of affairs or whether the purchasers are seeking to use estoppel as a sword rather than a shield. In Waltons Stores (Interstate) Ltd. v. Maher [19] , I explained in detail the reasons which led me to conclude that the assumed state of affairs under an estoppel by conduct can provide the factual foundation of a cause of action and that estoppel by conduct (in its emanation commonly described as "promissory estoppel") may preclude departure from a represented or assumed future "state of affairs" in at least certain categories of case. A case such as the present which involves a representation between parties in a pre-existing contractual relationship that one party is dispensed from strict performance of the contract clearly falls within one such category of case (see Legione v. Hateley [20] ). In any event, I am now prepared to take the step which I refrained from taking in Waltons Stores [21] and to accept that the doctrine of estoppel by conduct extends, as a matter of general principle, to a representation or induced "assumption of fact or law, present or future" (cf. Moorgate Mercantile Co. Ltd. v. Twitchings [22] ). Once it is recognized that promissory estoppel is properly to be seen as no more than an emanation of the general doctrine of estoppel by conduct (see Waltons Stores [23] ), there remains no valid reason in principle why that general doctrine should not apply to a representation of future fact. Nor is there any valid reason why that general doctrine should be inapplicable to a case where the representation relates to the state of the law. In that regard, the distinction between a representation of fact and a representation of law is, in the context of the principles constituting the doctrine of estoppel by conduct, essentially illusory unless one subscribes - and I do not - to the view that law has no factual existence at all. In the area of estoppel by conduct, the essential distinction which must be observed if the doctrine is to be kept confined within what is justified by the notions of good conscience which inspire it is not the distinction between present and future fact or between fact and law. It is the distinction between a representation of fact and a representation of opinion. A representation can found an estoppel by conduct only to the extent that it is clear. It can, however, be reduced to what is clear by discarding so much of its content as is equivocal or ambiguous. That being so, a representation of future fact and a representation of law will often, upon analysis, involve no more, for the purposes of the doctrine of estoppel by conduct, than a representation of present opinion. In a case where that is so, any estoppel founded upon the representation will ordinarily be of no use to the representee since it will extend no further than precluding a denial that the represented opinion was truly held (cf. Waltons Stores [24] ).

[156]

In Thompson v. Palmer [25] , Dixon J. identified the object and operation of estoppel by conduct as being "to prevent an unjust departure by one person from an assumption adopted by another as the basis of some act or omission which, unless the assumption be adhered to, would operate to that other's detriment". His Honour went on to stress that the party who has induced the assumption is not bound to adhere to it "unless, as a result of adopting it as the basis of action or inaction, the other party will have placed himself in a position of material disadvantage if departure from the assumption be permitted" [27] . In the present case, the learned trial judge found that the purchasers had not proved on the balance of probabilities that, were it not for the vendors' intimation that it was unnecessary that they do so, they would have been able to arrange the balance of the purchase price in order to be ready and able to complete within the stipulated time. On the appeal, the purchasers sought to impugn that finding. However, it is unnecessary to pursue that question. It is clear from the evidence that there was, at the least, a real chance that, if they had not been induced to cease their efforts to arrange finance by the vendors' intimation, the purchasers would have been able to obtain the balance of less than $10,000 of the purchase price ($75,000) which was not already covered by the deposit ($7,500), the arranged loan ($56,000) and the money available in Mrs. Foran's bank account (at least $1,783). In these circumstances, the purchasers would be placed in a position of significant and unjust material disadvantage if the vendors were permitted to depart from that intimation in that they would have been induced to lose the benefit of a real chance that they would have actually tendered performance within the time fixed by the contract and thereby avoided any need to establish what might have happened but for the vendors' intimation. The detriment of the loss of that real chance which would be sustained by the purchasers if the vendors were permitted to assert that the purchasers remained obliged to tender performance or to become ready and willing to perform within the stipulated time is adequate to sustain the estoppel upon which the purchasers rely to establish their right to rescind. The operation of that estoppel is, as has been said, to preclude departure by the vendors from their intimation that it was unnecessary that the purchasers tender performance or be ready and able to perform on the day fixed for completion. As has been seen, one of the effects of that estoppel is that, as between the parties, the condition of concurrent performance by the purchasers can be disregarded with the result that the vendors' refusal to complete the sale on or before that day constituted a repudiation of the contract by breach of an essential term. Another is that the purchasers were effectively relieved of any obligation to be ready and able to perform on the day fixed for completion. That being so, it was not a prerequisite of the purchasers' right to rescind that they establish on the balance of probabilities that they would in fact have been ready and able to perform or have tendered performance in the hypothetical situation which would have existed in the event that the vendors' intimation had not been given.

[158]

In these circumstances, it is strictly unnecessary that I express any view on the question whether one party to a contract is precluded from rescinding it by accepting a repudiation of the contract by the other party if he is not in a position to prove that he is, or but for the repudiation would have been, ready, willing and able to perform the contract. However, in view of the discussion of that question in other judgments, it would seem desirable that I indicate that, notwithstanding some statements of authority to the contrary, I do not accept the proposition that a party must incur the expense necessary to put himself in a position where he can positively demonstrate actual or potential readiness and willingness to perform a contract before he can accept the repudiation of the other party and thereby rescind. In my view, that proposition is unjustified by either principle or common sense. Absence of actual or potential readiness or willingness to perform a contract will prima facie preclude a successful action against the other party for specific enforcement of the contract or for the recovery of damages for its breach. It does not, of itself, preclude rescission of the contract by acceptance of the other party's repudiation. Were it otherwise, the law would require the useless and futile expenditure by an innocent party of whatever time, effort or money was necessary to place himself in a position where he could positively demonstrate actual or potential ability to perform a contract in order to be able to bring it to an end on the ground that it had already been repudiated by the other party. Indeed, it is difficult to see why, as a matter of principle or common sense, actual breach or even repudiation by one party to a contract should prevent that party from rescinding the contract by accepting a repudiation of the contract by the other party. Put differently, it is difficult to see why the law should insist that, even though both parties to a contract have repudiated it, the contract must hang like an albatross around their necks unless and until they can reach a new agreement about its termination. The point can be illustrated by the hypothetical example of express repudiation by each party to a contract followed by acceptance of the other's repudiation and unilateral rescission of each of them. How can it be said that, in those circumstances, the law continues to require that each perform the contract?

[181]

In common sense the meaning of such an averment of readiness and willingness must be that the noncompletion of the contract was not the fault of the plaintiffs, and that they were disposed and able to complete it if it had not been renounced by the defendants. What more can reasonably be required by the parties for whom the goods are to be manufactured? If, having accepted a part, they are unable to pay for the residue, and have resolved not to accept them, no benefit can accrue to them from a useless waste of materials and labour, which might possibly enhance the amount of damages to be awarded against them. Lord Campbell continued [12] : Upon the whole, we think we are justified, on principle and without trenching on any former decision, in holding that, when there is an executory contract for the manufacturing and supply of goods from time to time, to be paid for after delivery, if the purchaser, having accepted and paid for a portion of the goods contracted for, gives notice to the vendor not to manufacture any more as he has no occasion for them and will not accept or pay for them, the vendor having been desirous and able to complete the contract, he may, without manufacturing and tendering the rest of the goods, maintain an action against the purchaser for breach of contract; and that he is entitled to a verdict on pleas traversing allegations that he was ready and willing to perform the contract, that the defendant refused to accept the residue of the goods, and that he prevented and discharged the plaintiff from manufacturing and delivering them. It may be thought that in that passage there are indications that the final destination of the principle would be found to lie in estoppel. There could be no claim by the plaintiffs based upon the delivery of the goods, but the defendants were, by reason of their representation, precluded (or estopped) from alleging that the plaintiffs were not ready or willing to deliver them. 1. (1851) 17 Q.B. 127 [117 E.R. 1229]. 2. (1851) 17 Q.B., at p. 144 [117 E.R., at p. 1236]. 3. (1851) 17 Q.B., at p. 148 [117 E.R., at p. 1237].

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Judgment (239 paragraphs)

Parties