Harrington v Browne [1917] HCA 36

that the defendant was entitled to judgment. ations as to the duty of a purchaser of live-stock to notify the seller

tly of the day on which the purchaser requires delivery, where by the ot delivery is to be taken "on or before" a certain date.

n of the Full Court of the Supreme Court of Queensland: Browne (1917) S.R. (Qd.), 172, reversed, and decision of Shand J.

H.C.or A. Appra. from the Supreme Court of Queensland. a Up In an action brought in the Supreme Court by Clarence Lind

a eens Browne against William James Harrington, the plaintiff Browxn, damages for breach of contract relating to the sale of certain s to him by the defendant, and in his defence the defendant di

the breach. The action was tried before Shand J. with a speci

jury. The jury having found that prior to 21st August 1916 it

not verbally agreed by and between the plaintiff and the defen

that the pro forma delivery of the sheep mentioned in a write

contract between the parties, dated 31st July 1916, should b

and taken, and that such sheep should be counted, at Villa Da

22nd August, instead of on or before 21st August, judgment

entered for the defendant on the claim with costs. Thereupon

plaintiff appealed to the Full Court on the grounds that on

admitted facts he was entitled to judgment on his claim for da

and that the verdict was against the evidence and the weight of th evidence. The Full Court allowed the appeal and set aside the jud ment appealed from, and ordered that interlocutory judgmen , entered for the plaintiff and that his damages be assessed : y. Harrington (1). PF

From this decision the defendant now, by special leave, appet to the High Court. _

Other material facts appear from the judgments hereunder.

Macgregor, for the appellant. The onus is upon the res} to show that on the facts of the case no reasonable jury coul come to the conclusion at which the jury arrived here (Mid dl Melbourne Tramway and Omnibus Company Id. (2); Pi Victorian Railways Commissioners (3) ). Even assuming that respondent was ready and willing to accept delivery on

he was no longer restricted to the time specified in the co but could demand delivery at any reasonable time after the and that if the appellant was not ready and willing to deli

(ly (e Maia (Qa.), 172, (3) 18 C.L.R., 526. (2) 1 L.R., 572. (4) 1 Cro., 14.

larman v. Owden (2) ; Startup v. Macdonald (3)). The stipu- H. ©. oF A. as to time goes in this case to the essence of the contract es.

vy. Sala (4); Sale of Goods Act of 1896, secs. 13, 14 (2), 31, Harrrerox

K.C. (with him Walsh), for the respondent. The stipula- as to time is a warranty, and not a condition (Francis v. Lyon | Purcell v. Bacon (6); Sale of Goods Act of 1896, sec. 14 (2)). of delivery was not of the essence, then respondent's readiness

rton J. This appeal arises out of an action brought by the Avs. 11. (now respondent) against the defendant (now appellant) on

ontract for the sale of sheep. The plaintiff and the defendant

h graziers, the former residing and carrying on business at

lo, near Stamford, and the latter residing and carrying on

s at Villa Dale near Hughenden. The defendant on 31st

t 1,400 ewes, and about 40 rams, all then depasturing on Villa e: - "(a) Rejections: two per cent. over and above lame, blind [diseased. (b) Price: wethers 16s., ewes 18s. 6d. and rams £2 per

The two per cent. rejections to be taken at 12s. per head. erms: cash on delivery. (d) Payable at Queensland National , Richmond. (e) Delivery : pro formé delivery to be given and 'and the above-mentioned stock to be counted at Villa Dale on e 2ist August 1916 next ensuing. (/) Such delivery shall nsidered actual delivery (without another count being made) | payment is being completed, but not before, and further until ment is made, the purchaser to hold the above-mentioned s agent only and in trust for the vendor as continuing owner (4) 4 C.P.D.

d.'Raym., 620, (5) 4G.L. Man, & G., 593, at pp. 611, (6) 22 C.L.R.

of the said stock." The plaintiff in his claim alleges that | ready and willing and offered to take pro forma delivery on or 21st August, but that the defendant was not then ready or to deliver, and that thereupon the plaintiff at the de request agreed with him to postpone delivery to 22nd August. plaintiff further alleges that on 22nd August he attended at Vi and requested pro formd delivery " pursuant to the provisions of t] said agreement " but that the defendant did not deliver and to deliver any of the stock, although the plaintiff was at all tim and willing to accept delivery. The written agreement was not disputed ; but the defendan' his defence denies the other material allegations of fact, and that the plaintiff was not ready and willing to take delivery o before 21st August 1916, and the defendant thereupon treated ti written agreement as repudiated. He alleges that he was al times ready and willing to give delivery in accordance with the t of the written agreement. The defendant also counterclaims ¢ verbal agreement of the plaintiff to employ the defendant tod the sheep in question from Villa Dale to Eldorado for £25 a y during the period of driving, alleging that the plaintiff did not e1 the defendant as agreed. But it is important to observe throt

that the plaintiff's claim is based entirely on the written agree

The evidence shows that the plaintiff did not attend or ck

defendant refused it, alleging that the demand was too late. At trial the jury, in answer to a specific question put to them by S J., before whom the trial took place, found that it was not verb

agreed between the parties prior to 21st August that the pro

There was much direct conflict of evidence, and the jury, in co1 to their conclusion, whether their finding settles the matter or 0 have evidently preferred the defendant's account, and I agree Lukin J. in thinking that under the circumstances of this ¢

the finding stated, the plaintiff appealed to the Supreme of Queensland, who unanimously set aside the judgment, ed judgment for the plaintiff on the claim and the counter- , and sent the action down for assessment of damages. written agreement, in which Edmund Cox & Co. describe selyes as agents for William J. Harrington, was signed by them the vendor." But they appear to have acted as an inter- y between the parties in the subsequent written and verbal communications. It appears that the verbal agreement for droving d by the defendant was in fact entered into.

9th August Edmund Cox & Co. wrote to the defendant a in the following terms : - '* We have been advised by Mr. ne that he wishes his sheep shorn at Carrah, and we find the

if you can do this we will arrange to lift them on that date. s is not suitable to you, can you hold them and lift about the | to fit in with the 28th for shearing? Kindly reply by bearer," x & Co, had, according to the plaintiff, arranged for him the dates wing at Carrah. The plaintiff says : - ' I learnt through Cox

nd August. Then I went out to defendant's place and arrived out 2 p.m. on August 22nd." Then he relates the refusal to

'The defendant, whose account the jury accepted, denies angement to take delivery on the 23rd, and also denies that

return to the letter of 9th August. It was received by the nt at his place on the 10th. He had a discussion that day 'Mr, Tate of Cox & Co. He told hirh that he had received the

• "with reference to the droving." There was conversation the possibility of getting by the 13th a couple of men for that and the defendant was to ring Tate up the following morning e sure of his coming with the men. On the following morning

accept the jury's view if it is such as reasonable men properly 4. ©. or A.

ment having been given by Shand J. for the defendant Hareivoron

H. C. or A. the defendant called Tate on the telephone, and asked him if

YY Harrincron defendant told him it would be impossible for him to go to:

got the men. Finding that he had not succeeded in doing

and get the men to "lift" on the 13th, and he says : - " It was arranged we couldn't lift them on the 13th. I told Tate that not affect the sale delivery, but that Mr. Browne could cor and take the delivery mentioned in the contract. Tate said he di not think Browne would do that - take delivery and let them

again, as some might get lost. I told him if Mr. Browne conse I could go to town and make my own arrangements for drover and would lift them on 22nd August to shear on the 28th at Car That would give me plenty of time to make my own arrangem Thad no more word. Nothing was said on 10th or 11th August al an alteration in the date of delivery. The conversations refe to the date of lifting - the droving contract."

date they say that their readiness to accept delivery on the was on their part a substantial compliance with the contract, mere breach of warranty for which they were at most answ in damages. I take a wholly different view of this letter. In the first p) ace it appears to be purely tentative. If it deals with the delivery, it not a demand of delivery on the 13th, but only a proposal to by about an arrangement forthe purpose. But I do not think it deal primarily with the delivery at all. The droving agreement was alteration of the written contract. The terms as to delivery, even 7) forma delivery, were independent of the droving to which in rea the letter relates. The making of the separate verbal agreement droving shows that delivery did not include "lifting." If the dant delivered the sheep at Villa Dale at any time within this e tract his liability under it would have ended there, apart from tl droving. But the plaintiff, having made the droving arrangemé on which he was dependent, felt that he could not come aati delivery unless he could have the sheep driven for him after d and consequently he makes inquiry through Cox & Co. wl

out the 13th" is " suitable" to the defendant as a date for drov- H. ©. oF A. He does not attempt to dictate any date at all. He only Be that if his sheep are to be shorn on the 18th at Carrah, the sheep Hani

Barton J. trued as a demand for delivery on that date. It is obvious that 2

he could have the droving done for him within a reasonably time after delivery on any particular date he could not want ivery on that date: because without the droving the delivery the sheep would have been not only useless but injurious to

1. As to the second branch of the letter it is quite compatible

s to point to this by the inquiry "Can you hold them and lift about the 22nd?" If they were mustered and counted to the ntifl on the 21st and the droving started about the 22nd, both written and verbal contracts would have been performed. That the second part of the letter was understood in this sense shown by the defendant's evidence as to the conversation on e telephone with Mr. Tate on 11th August, already referred to. When, therefore, the jury found that there was no verbal agree- ment for pro forma delivery on 22nd instead of 21st August, they e amply warranted by evidence and were very probably right, , as I think I have shown, the first part of the letter referring o 13th August cannot well be construed a8 a demand for delivery o be given on that date. do not think, therefore, that this letter shakes the finding of the , or that it proves the issue of readiness and willingness in the- plaintiff's favour. But there is one thing which appears from it ; is very material, and that is that if the letter represents Mr. owne's views, as his counsel have practically insisted, then, failing ments about droving on the 13th, there was no date "on or e" the 2Ist on which he was ready and willing to attend and 'the sheep. If he cannot have them "lifted," é.c., driven away, the 13th, he is not ready to-have them so treated until the 22nd. hether the plaintiff had any cause of action on the ground of y failure of the defendant in respect of the droving contract, it is ecessary to consider.

son repudiated the notion of delivery on 23rd August, but was p.

'below. The most important of them, and it tells strongly in favou

As to delivery, the defendant's evidence with regard t telephone conversations on Sunday, 20th August, shows

ready to deliver in accordance with his contract. On the other h Tate calls Browne up in the defendant's presence. The def hears him say, "' Harrington is here now, with reference I delivery. . . . Harrington says the 21st. He wants to ta to you over the "phone." Tate then turns to the defendant and "Mr. Browne won't go into conversation with you over the 'p but will see you to-morrow personally "' - which the defendant too to mean Monday the 21st ; and later on he says, in his cross-ex tion, "The message I got eventually was, ' Browne will see to-morrow when he is taking delivery.' "

It seems to me that if time was of the essence of the cont that is, if the plaintiff's attendance on the 21st to accept deli was a condition precedent to delivery, the plaintiff cannot well that his letter of 9th August proves the readiness and willi he alleges, and, if that is so, then the finding of the jury should n disturbed.

Was time then of the essence of the written agreement? exception can be taken to the authorities quoted by the

of the affirmative view, is the passage from the judgment of Cotto L.J. in Reuter v. Sala (1), in which he says that to apply to merea contracts the rule of equity, which enforced certain contracts th the time fixed therein for completion had passed, " would be d ous and unreasonable." Lord Blackburn, in his treatise on " tract of Sale (3rd ed., p. 244), cites this passage as an authority for his own statement that "in mercantile contracts, stipulation time (except as regards time of payment) are usually of the ess of the contract." The learned author fully cites a numb decisions for this rule. : ?

As the legal position is thus undeniably stated, and as the writte mn agreement is a mercantile contract, it follows that attendance t accept delivery at a date later than 21st August is no perform

of his part by the plaintiff, unless it can be shown that a me (1) 4 C.P.D.. 239, at p. 249.

in this special instance has something in its terms which H- ©. oF A. time unessential, or unless the circumstances of the country ee:

prive it of its normal character. Certainly there is nothing in Harerseron

le of Goods Code which imports any new element into it. grows»,

s to accept delivery after the 21st is no performance of an it to accept it on or before that date. As this mercantile would normally carry a specified time of delivery as of its

ce it must be so interpreted unless something in its terms can ointed to which shows that the specified term is unessential. listened in vain for any such term to be pointed out. _

can the circumstances of this country be adduced as having

ments of this character where parties have specified dates of y for themselves. There are many contracts which may be

where long distances must often be travelled and where s of station stock spread over great areas must often lace, are in general subject to relaxations in respect of time ied within which delivery or acceptance must be made. Of e, there are cases in which the special terms lead to a different tion, but in a contract such as this I see nothing to lead to difference.

final clause of the writing, relating to arbitration, was not abject of argument either at the trial or before the Full Court. s mentioned by my learned brother Zsaacs towards the end of ument before us. It is not proper that we should allow it to

Tam of opinion that the order of the Full Court cannot be sustaii and that the appeal must be allowed, and the judgment of

Isaacs J. It is of the highest importance for the understa of this case to bear in mind that there were two distinct and pendent contracts between the parties. The appellant ha¢ contract in writing, sold the sheep on his station, Villa Dale, to t respondent at a certain price and on certain terms set out contract. He had also by a separate oral contract, based o entirely new consideration, agreed to drove those sheep fo { respondent after they should become the respondent's pro and also some other sheep in contemplation of purchase by

From a practical standpoint the two contracts were part an parcel of the respondent's one scheme for dealing with the but the legal obligations of the parties under those agreements distinct and different. It is the failure to distinguish between an to keep separate those obligations that has led to the difficulty i this case.

Under the sale contract the property in the sheep was not intend to pass until after payment, which was to follow " formal deliv but was to be not later than what the parties described as " delivery," and the property was not to pass until payment W completed. The action, therefore, was brought for dama breach of contract to deliver. Whether appellants refus: deliver on 22nd August was such a breach depends on th of secs. 13, 29, 31 and 61 (2) of the Sale of Goods Act of

Sec. 29 provides that "it is the duty of the seller to deli goods, and of the buyer to accept and pay for them, in accord with the terms of the contract of sale." This means simply th

struction of the contract. Every contract, as was said Privy Council in Bacon v. Purcell (1), " must be construed in re tion to the subject matter with which it deals and in the li

circumstances by which it is surrounded." But it must be H.C. or A. nbered that there can be only one construction given toa 191% ontract. Lord Chelmsford L.C. said in Scott vy. Liverpool Cor- nace ation (1) : - " There is no equitable construction of an agreement prowwn, listinct from its legal construction. To construe is nothing more

n to arrive at the meaning of the parties to an agreement, and

his must be the aim and end of all Courts which are called upon

to enforce any rights created by and growing out of contract."

And Lord Parker's judgment in Stickney v. Keeble (2) shows that

Courts of law always held parties to their bargains, and that even

the Judicature Act the same result must follow except where

to the Act equity would under the existing circumstances

granted specific performance or restrained the action. That nnot be said of the present case and so the rights of the parties st depend on the strict construction of the contract itself.

sale " - repeating the words of sec. 29 - was to deliver the sheep the respondent, when so requested by him, on or before 21st g I agree with the respondent's contention that he had the ice of any day between the making of the contract of sale of 31st ' y and 21st August. This elasticity in respect of date, it must be ned from the terms of the contract, the locality of the transac- G and the well known circumstances that ordinarily surround +h a bargain, was for the benefit of the buyer. It was to enable nto make arrangements for moving the stock and for their destina- But while it is for his benefit, and gives him the choice of the of delivery, it necessarily imposes upon him the duty of request- delivery before he can complain of failure to deliver. "The " as it is called (Halling's Case (3) ), must be done by him. e principle is thus stated by Coleridge J. in Armitage v. Insole "Where circumstances, left uncertain by the contract, are

(1) 3 DeG. & J., 334, at p. 360. (3) 5 Co. Rey (2) (1915) A.C, 386, at pp. 415 (4) 4 QB,

H.C. or A. of such a nature that one party cannot perform his part

Hanrieron contract, ought to fix those particulars." That case and the

contract until they are fixed, the other party, insisting on

Sutherland v. Allhusen (1), in which it was applied, show that i the duty of the respondent to notify the appellant distinctly day he required delivery of the sheep. On the authority of 1 cases, and of the later case of Davies v. McLean (2), the responder allegation that he was ready and willing to accept delivery m unless he proves such a notice. The letter of 9th August, when read by the light of the relationship referred to, was not such a notice. It mingled the positions, and made the request for delivery on the 13th und r sale contract conditional on the suitability of that date or abouts to the appellant under the droving contract. And the alternative date, that was equally left as an interrogation not as a specific notification or request for delivery. The reply given to Tate, the respondent's agent, by the ap) as proved by him and accepted by the jury, was in effect th: could not perform the droving about the 13th as requested, added : "I told Tate that would not affect the sale delivery that Browne could come out and take the delivery mentioned in contract." He also said he was willing to arrange for the on the 22nd if Browne consented. He never heard from Bre on the matter. If even the appellant were in default in respect of his ob! as drover - a matter as to which I offer no opmion - he clear! not refuse or neglect to perform his duty as seller. He uneq cally offered to fulfil it, but at that stage Browne was unwil take the sheep because droving was impossible, or at least d And even if the appellant were in default as to droving, that form a cause of action not on the selling, but on the droving, cor tract. i:

Then on 20th August, according to the appellant's evid he unmistakably reminded the respondent that 2Ist August ¥ the last day for delivery under the contract of sale, and the 1 spondent promised to come on that day. The respondent faile (1) 14 L-T. (NS.), 666. (2) 21 W.R., 264.

till 22nd August, on which day he demanded the sheep under H-C.or A - written contract, and the appellant refused, claiming that it bee

s too late, though offering as under a new bargain to carry out Hanns same terms except the two per cent. rejection clause. This was prow d, and hence the action.

_ The respondent's allegation that the time of delivery was extended by agreement to 22nd August was negatived by the jury, and it s plainly a matter for them to determine on the evidence. The clusion arrived at by the Supreme Court that the jury could not reasonable men negative that allegation is, with the greatest ence, founded on a misapprehension. It is said that the nt's statement that he could not start the sheep at the time suggested and as to making arrangements for doing so on the was speaking in both capacities, that is, as seller and as drover.

• But if his evidence is to be accepted - and it was accepted as

by the jury, whose decision as to that, in the circumstances, nal - the appellant was candid and careful. He said he could not droving on or about the 13th, but was prepared to deliver as ; and as to the later date suggested he was willing, if Browne con- |, to prepare to drove on the 22nd, reminding him, however, the delivery under the selling contract was to be on the 21st - next day.

the face of that evidence, the issue could not, in my opinion, hdrawn from the jury, and their finding must stand.

e only question then is whether 21st August is to be regarded sential term of the bargain.

13 provides that whether any stipulation as to time other time of payment is of the essence of the contract or not depends

2ist August is the ultimate date. Again applying sec. 61 common law rule as to such a contract is that time of com- n fixed by the parties is essential (Reuter v. Sala (1) and other In the New Zealand Court of Appeal the late Sir Joshua Williams, latthews v. Dampney Bros. (2), said : " Now, in the sale of stock - at

(2) 19 N.Z.L.R., 557, at p. 561. H.C. or A. Jeast, where a large quantity is being sold - the time of

_Harzineron in the same case agreed with that. The Sale of Goods Act

would be of the essence of the contract." Other learned Ju

So far from there being anything in this contract to dest primary effect of fixing 21st August, the phrase "on or bi that date implies that no later date was intended to satisfy th bargain.

The appellant was therefore justified in law in refusing to deliv on the 22nd, when the respondent for the first time made a cle request for delivery.

The final clause in the agreement received no attention thro the case from either of the parties. It is in these terms: " any dispute arise in regard to this contract, such dispute shall n vitiate the sale, but the matter in dispute shall be settled by arbitra tion in the usual way."' It may be that such a clause would

application to a dispute as to the finality of date in any particul: contract (see Thorburn v. Barnes (1)). But at this stage, a

impossible to consider its meaning and effect so as to influence result of this appeal. F

For the reasons I have stated, I am of opinion the appeal sho

Appeal allowed. Order appealed from disch with costs. Judgment of Shand J.

Solicitors for the respondent, Cannan c& Peterson for MacDonald, Hughenden.