Metropolitan Knitting and Hosiery Company Limited (In Liquidation) v Thomas Burnley and Sons Limited [1924] HCA 51

DEFENDANT, "AND THOMAS BURNLEY & SONS LIMITED . _ . Resrowi PLAINTIFF,» ON APPEAL FROM THE SUPREME COURT OF NEW SOUTH WALES. H.C. or A, Comract - Sale of goods - Contract not in writing - Part performance - P

Direction to jury - Statute of Frauds (29 Car. II. ¢. 3), sec. 17 - Sale 6 Act 1923 (.S.W.) (No. 1 of 1923), sec. 9. 7

Held, by Gavan Duffy and Starke JJ., that, where a plaintiff, su a contract for the sale of goods which is within sec. 17 of the S Frauds, seeks to establish acceptance of or payment for the goo to satisfy the section, he must prove that the goods were acve Isaacs 4-Civ' paid for in pursuance of the contract sued on; and, therefore, tha and Starke JJ. ty plaintiff sued upon two contracts for the sale of the same dé of goods, one of which contracts was admitted and the other den

defendant, the jury were properly directed that in order to satisfy th

inder the contract sought to be enforced by him and denied by the defendant, d not under the contract admitted by the defendant.

"was open to the jury to say the defendant was really accepting and paying for goods under the first and not recognizing the second.

Decision of the Supreme Court of New South Wales (Full Court) reversed, B

AL to the High Court from the Supreme Court of New South _ An action was brought in the Supreme Court by Thomas Burnley & Sons Ltd. against the Metropolitan Knitting and Hosiery Co. Ltd., in which the plaintiff, by the first count of the declaration, alleged (so far as is material) that "it was agreed by and between the plaintiff and the defendant that the plaintiff should sell to the defendant and the defendant should buy from the plaintiff 12,000 'Tb. of yarn of certain quality and specifications at a price and on certain terms and conditions as to shipment delivery insurance and erwise then agreed upon between the plaintiff and the defendant and that the plaintiff should deliver the said yarn to the defendant the defendant should accept the same and pay to the plaintiff said price as agreed upon as aforesaid And it was a term and ition of the said agreement that the said yarn should be shipped

four equal monthly deliveries of 3,000 Ib. each the first delivery ing in January 1921 And subsequently by agreement between

plaintif and the defendant the said term and condition as to ry was altered And it was agreed that instead of making ivery as originally agreed the plaintiff should deliver the said together with other yarn ordered by the defendant from the in five monthly deliveries commencing about October 1920 in accordance with the said agreement as varied as aforesaid

plaintiff delivered certain of the said yarn to the defendant \ ) accepted the same and paid to the plaintiff the agreed price for same . . . Yet the defendant after receiving certain of the yarn refused to accept any further deliveries thereof or to pay

plaintiff must show that the payment was made or the goods accepted H. C. or A.

Merro- : Although the plaintiff must prove acceptance or payment pourrax

sought to be enforced in this action, namely, the second, KNiTTING direction to the jury was erroneous in directing them that if the defendant yy¥Q.veny

honestly thought there were not two contracts, but only the first, then it Co. Lrp. (ox Ligurpa-

H.C. or A. 1924.

• - Merro- POLITAN Kxrrrese AND Hostery Co. Lrp.

for the same and repudiated the said agreement and refused any longer bound by it."

By the second count the plaintiff alleged (so far as is mate that "it was agreed by and between the plaintiff and the defen that the plaintiff should sell to the defendant and the defer should buy from the plaintiff 12,000 Ib. of yarn of certain qu and specifications at a price and on certain terms and condi as to shipment delivery insurance and otherwise then agreed between the plaintiff and the defendant and that the plaintiff she deliver the said yarn to the defendant and the defendant : accept the same and pay to the plaintiff the said price as agreed as aforesaid And it was a term and condition of the said a that the said yarn should be shipped in four equal monthly deli of 3,000 Ib. each the first delivery being on completion of delis under another contract made between plaintiff and defendant known as Order 532 And subsequently by agreement between plaintiff and the defendant the said term and condition as to deliy was varied and it was agreed that instead of making delivery originally agreed the plaintiff should deliver the said yarn to, with other yarn ordered by the defendant from the plai five monthly deliveries commencing about October 1920 accordance with the said agreement as varied as afore plaintiff delivered certain of the said yarn to the defendant accepted the same and paid to the plaintiff the agreed price for same . . . Yet the defendant after receiving certain of thes yarn refused to accept any further deliveries thereof or to p the same and repudiated the said agreement and refused to b longer bound by it."

The defences raised were, in substance, a denial of the exi of the contract sued on in the first count, it being admitted contract sued on in the second count had been made, and an alleg

having found a general verdict for the defendant, the Full motion by the plaintiff set aside the verdict and directed th new trial be had.

The other material facts are stated in the judgments hereunder. H- ©. or A.

_ From the decision of the Full Court the defendant now, by leave, 1°°* ealed to the High Court. Merro-

us Thomson K.C. (with him Bowie Wilson), for the appellant. "S!Z™8¢ e being a general finding by the jury for the appellant, it may be ren aken that there is a finding for the appellant on all the issues, (&% Ege nd it is sufficient for the appellant to succeed to establish that the v.

y might properly have found for the appellant on any issue. paid the evidence the jury were entitled to find that there was one © Soxs L™- contract: only. In the conflict of evidence this Court should not

assume a function which is left by law to the jury (Gray v. Dalgety

& Co. (1)). The direction to the jury on the Statute of Frauds was

correct. It was necessary for the respondent to show an unqualified

acceptance which is referable only to the contract upon which it

relies. "It must appear that the acts relied on as acts of part performance were done for the purpose and in the course of performing

that agreement and with no other view or design than to perform it "

[Isaacs A.C.J. referred to Abbott & Co. v. Wolsey (3).]

Holman K.C. (with him Mason), for the respondent. The evidence for the respondent is supported by documents which cannot be questioned, and the jury were not entitled to find that there was

one contract only (Hill v. Ziymack (4)). The question of the

Statute of Frauds only arises if there were two contracts. and, if there

were two, the appellant must have known that the deliveries of ~ goods were under both contracts. Any mistake of the appellant as

to which contract the delivery was referable to was not conduced _ to by the respondent. The direction was wrong as to the Statute of Frauds. It was not necessary for the respondent to show that the acceptance was attributed by the appellant to the disputed contract, and the belief of the appellant was immaterial.

(1) (1914) 19 C.L.R. 356, at p. 266. (3) (1895) 2 QB. 97. & (1922) 30 C.L.R. 216, at p. 222. (4) (1906) 3 C.L.R. 726.

MerRo- POLITAN Ksrrrixe AND Hostery Co. Lrp. (ix Liquipa- TION)

Tsaacs A.C.J. This was an action, in which the respondent w the plaintiff and the appellant was the defendant, to recover dan for breach of two contracts to purchase goods. The action was tri before Ferguson J. and a jury. A general verdict was returned f the defendant. On an application for a new trial the Full G by a majority, ordered a new trial on the ground that upon th evidence no jury could, as reasonable men, arrive at a verdict than one for the plaintiff, or, alternatively, as to one of the issue that there was misdirection. From this judgment the p appeal is brought.

The first thing is to state the issues. There were three ques before the jury. One was as to whether the-present Company ¥ the responsible party. That was settled at the trial and does concern us. The two others that survive were (1) whether one the contracts sued on ever existed and (2), if it did, whether ther was an acceptance or part payment sufficient to meet the requirement of the Statute of Frauds.

The verdict being general, it cannot be predicated whether thi jury found both these issues in favour of the defendant or only oni and, if only one, which one that was. If, therefore, the Full Cour was right as to either, its judgment cannot be disturbed.

My opinion is that there was error in the direction regarding th issue as to acceptance and part-payment, and that consequently the Supreme Court was right in ordering a new trial. This it essential for me to state the position as to the first issue som plainly in order to understand the second, and at the same time refrain from unnecessary observations with respect to the eviden bearing upon either.

The declaration contained two counts, each setting out a specia contract of sale of goods. The contracts as alleged were sey and distinct contracts, each being for 12,000 Ib. of yarn of quality and specifications, price and conditions. The first contract as alleged provided for shipment in four equal monthly deliver of 3,000 Ib. each, the first delivery being in January 1921. second contract as alleged provided also for shipment in four eg monthly deliveries of 3,000 Ib. each, the first delivery being

pletion" of the deliveries under another contract, known as H.C. or A. Order 532," that is the one alleged in the first count. It was |?

ee er alleged in both counts that by subsequent agreement the Merro-

liveries under both contracts were to be varied so as to make the QQinreo tal quantity of yarn deliverable in five monthly deliveries mama 'commencing about October 1920. In each count it was alleged that Co. Lrv.

_ part delivery, acceptance and payment had taken place, and that = 2 ie _ there had been a refusal to complete performance. Tinta

The defence, as it has emerged, is twofold: (1) a denial that BuRNeeY & s Lrp.

there were two separate and distinct contracts and an allegation

• that there was only one, that one being the eventual and single Mgeniatect

• outcome of all prior negotiations ; (2) want of compliance with the FE Statute of Frauds. The evidence as to the first defence rested on

common ground to some extent. There was no dispute that the

• negotiations commenced on 4th May 1920, and that on 21st May

an order was given which became known as Order 590, being verified

by the appellant's signature on 9th June. Order 590 is the subject

of the second count, and in the verified document contains this _ statement : - '' Delivery - To be shipped in four equal monthly

deliveries of 3,000 Ib. each. First delivery on completion of

• 0/532." On this the respondent greatly relies as documentary confirmation of two contracts. The covering letter, however, says: "this order is a completion of 0/532"; and on this the appellant relies as showing there was only one contract. There was. in the interim a letter from the respondent's agents to the appellant, ¢ dated 6th May, referring to an order of 5th May, No. 532. This also is relied on by the respondent as evidence of two contracts, the _ Order No. 532 forming the basis of the first count of the declaration. 'The fact that the disputed contract was the first in point of date - if it existed at all - is of some importance, because the appellant on the second issue appropriates the whole of the goods delivered

first disputed contract really existed. As to whether the jury found that Order 532 did or did not exist as a contract, separate and distinct _ from Order 590, we cannot tell and cannot definitely assume. They may have found there was only one contract; or they may have found there were two, but no acceptance or payment in respect of

: accepted to the second and admitted contract, assuming the

Metro- POLITAN KSrrrine AND Hostery Co. Lrp. (xy Liguipa- TI0N)

the first. It is only in the latter contingency the second i: arises at all. But in view of the verdict being general, therefore cryptic as to details, we are forced to test it at all point With respect to the first issue then, if the jury had found on one contract, I think upon the whole, and after giving full we to the able arguments on both sides, that the jury's finding eo not be sustained on the facts when due regard is paid to the busi communications that passed between the parties and the busi records that were made. I am impressed with the fact that busin operations would be unsafe if so many and such communications likely to mislead unless given effect to were to b set aside on the slender verbal testimony offered. Campbell J. hi left so little to be desired in the examination of the facts that need not further elaborate them. All the Judges of the Supr Court say it cannot be predicated how the jury found on that is and, as I have said, I agree with them. And, therefore, there still remains a further consideration, na the issue as to the Statute of Frauds. As to that issue, the qu turns in one alternative on the accuracy or inaccuracy of a di given by the learned trial Judge. The question is whether th was by that direction introduced into the considerations whi jury had to take into account a vitiating element, which may have led to a wrong conclusion. If it may have led to a wrong conclu the onus rests on the party supporting the verdict to establish did not have that effect (Anthony v. Halstead (1) ). The qi arises in this way. After the charge to the jury has been complet and they had retired, they were recalled, and further directed thal " there is a subsequent invoice for goods under 532 and 590, and was paid for, and it is a question for you whether, even in the absen of a written memorandum, that was not a part delivery of the good under 532 and 590, a part payment for those goods." Then, at tl request of the learned counsel for the defendant, the learned Jud again recalled the jury and said : - '* There is one part of the ca that perhaps I ought to make a little more clear to you; I am sti referring to that question of the part delivery and part paymen It is necessary for the plaintiff, in order to succeed, to satisfy J! (1) (1877) 37 L.. 433.

that there was an acceptance by the defendant of goods under the disputed order, and I have pointed out to you that the plaintiff in its invoices described the goods it was delivering as being under Order 532. The object of proof of part delivery and part payment is to supply the want of a complete written memorandum of a contract. In order to do that it must be something that clearly satisfies you that when the defendant accepted those goods it was clearly recognizing the existence of the order which it now disputes. I

ought to remind you of Mr. Thomson's contention on that point ; Fiche

and that is this, that you have to look at it from the defendant's point of view as well as the plaintiff's, that if the defendant honestly

• thought that 532 and 590 were really two numbers which the plain had put on the same contract, that is to si on which the plaintiff for some reason or other had put the two numbers, that is, No, 532 on the preliminary order and 590 on the

completion of that order, then it is for you to say whether in accepting it the defendant was really accepting for goods and paying for goods under 532, whether it was really recognizing the existence of some order distinct from the Order 590. In the second invoice the goods are described as delivered under Orders 532-590. Mr. Thomson's contention is that while that might mean goods delivered under Orders 532 and 590, it might equally mean goods delivered under a contract represented by the numbers 532-590. It is for you to say, gentlemen, whether on the whole transaction you are satisfied that there was a delivery and an acceptance of goods under the disputed order, and, unless you find that, the defendant is entitled to a verdict." It is obvious from the whole of the circumstances that the new direction was likely to have a great effect in guiding the jury to their conclusion. The points to be observed in that portion of the charge are: The jury were told (1) that in determining that question the honest belief - that is, the mere unexpressed belief - of the defendant that there were not two contracts but only one was material in determining the issue in its favour ; (2) that "acceptance" meant that the defendant was thereby " clearly recognizing the existence of the order which it now disputes." The two points were made to run very much together, and that

Merro- POLITAN Karrine AND Hostery Co. Lap. (ox Lrguia- TION)

was the manifest object of the additional direction, the word " then makes that clear. ; The New South Wales Sale of Goods Act 1923 was already at the date of the trial, but it was not operative till after the was commenced and even after the trial. Nevertheless the

community. The State statute (sec. 9, sub-sec. 3) reproduces the English legislation. It says: "There is an acceptance of within the meaning of this section when the buyer does any act relation to the goods which recognizes a pre-existing contract of sale, whether there be an acceptance in performance of the contract. or not." That exactly, as I think, codifies the law as it previo had to be gathered from the prevailing judicial sources. It elimini entirely by its final words - just as the prior modern decisions ha eliminated - all questions of whether the goods were accepted as a fulfilment of the contract. There can be no doubt that in decisi prior to the Act as well as by the terms of the statute " acceptance is used in two senses according as it refers to formality or to per- formance. J am not concerned with defining its exact connotatior in the first sense; the other is immaterial. No doubt, in the sens of formality it is something other than receipt, and it indicates thi recognition of some contractual relation with respect to the and purchase of goods. The facts do not require any exhaustiv definition. Closer definition is unnecessary in this case, except that it has never been held to require a recognition of the precise conti relied on.

The two essential points - and I limit my observations to thes are (a) "

sale." The word " act," in my opinion, excludes secret qualification and undisclosed error. Lord Blackburn in his work on Contract of Sale said, in 1845: '* The question of acceptance or not is a qu as to what was the intention of the buyer as signified by his 0 act:

This was repeated in the second edition (pp. 16 and 17) remains in the third edition (p. 18), with the addition, by the le editors, of a statement that " the test to be applied is whether

buyer has done any act in relation to the goods which recognizes a H- ©. or A.

pre-existing contract of sale." Mr. Benjamin quoted this passage 2?

"in his work (see 4th ed., at p. 135). In 1858, in the case of Nicholson Merno-

y. Bower (1), it was so expressly stated by Hill J., and obviously so Korver

held by the other Judges. The gist of that case is that what the conc!

: : Hostery buyer does and not what he thinks prevails, even over an express Sy Lap. . finding of the motive of the act. In Smith v. Hudson (2) Mellor J." qos) uses the expression " any act done by the buyer to bind the contract." -pycatas

Tn Agnew on the Statute of Frauds (1876), at p. 194, " outward acts" phe are taken as the test. In Kibble v. Gough (3) Cotton L.J. says : - "The object of the statute is that, where there was no contract in rae . writing, there must: be some overt act to render the bargain binding."

There is no case, among the very numerous decisions on the

_ Statute of Frauds, in which the silent thought of the buyer has been

held to alter the effect of his manifest conduct in relation to the

goods. The injustice of prejudicing a vendor who relies for the enforcement of a mercantile contract on the business conduct of his buyer, by an after-expressed belief of the buyer, is self-evident. Acceptance involves the consent not only of the buyer but also of the seller (per Blackburn J. in Smith v. Hudson (4) ), and to permit this to have full intended effect so far as depriving the vendor is concerned, but not so far as committing the buyer is concerned, because of his own undisclosed error, however honest, would be most unfair, and is not, in my opinion, the law. One may fairly quote in this connection the words of Jervis C.J. in Tomkinson v. Staight (5). In that case, which I think is still an important case on this branch of the law, the Lord Chief Justice said of an objection raised : - " It is certainly somewhat strange that the question does not appear to have ever occurred before. That of itself would seem to afford a strong argument to show that the construction sought to be put upon the statute by the defendant is not the true construction."

The second point involved in the direction is that the recognition necessary is of the contract relied on.' I have already intimated my

(1) (1858) 1 E. & E. 172, at p. 179. (4) (1865) 6 B. & S., at p. 449. (2) (1865) 6 B. & S. 431, at p. 450. (5) (1856) 17 C.B. 697, at p. 705. (3) (1878) 38 L.'T. 204, at p. 206.

Merro- POLITAN Knirrixe AND Hosiery Co. Lap. (ax Ligurpa- T10N) v Tuomas BURNLEY & Sons Lrv.

opinion that this goes beyond the meaning of " acceptance" in the relevant sense. The statute, as observed in the 6th edition of Benjamin on Sale (p. 240), "* speaks of a recognition, not of ' the, but of ' a pre-existing contract of sale.' "" That is in accord with the prior law. There are many cases, notably Tomkinson v. Staight (1), which show that the recognition required is not that of all the terms of the contract sought to be enforced. The case just mentioned laid down the principle that the only recognition needed was that the goods were accepted in the character of a vendee, that is, under some contract of sale, leaving the terms of the contract to be established aliunde. Coming to more recent times, Brett M.R. in Page v. Morgan (2) said: " All that is necessary is an acceptance _ which could not have been made except upon admission that there was a contract, and that the goods were sent to fulfil that contract." The expression " that contract" obviously refers to whatever turns: out on proof to be definitely the contract which was admitted indefinitely by acceptance as a contract. It is in that sense that the Legislature has understood the words of the learned Judges" there, including Bowen L.J. The reading of the prior law is confirmed by Abbott & Co. v. Wolsey (3). The Supreme Court of the United States takes the same view (Hinchman v. Lincoln (4) ).

In the present case the seller delivered goods, approximately 11,000 Ib. of yarn, with three invoices stating details of shade, quantities and prices, with amounts worked out in the usual manner. One invoice expressly stated "0/532" and the two others "0/532 /590." The dates of the invoices were respectively 30th - November 1920, 11th December and 21st December 1920. Obviously the acts of the appellant were referable to some contractual relation of buyer and seller, and were all consistent with the respondent's case of two contracts, with subsequently amalgamated | deliveries. Let us, for present purposes, concede that it was open to the jury to find the fact either way. I do not hold that it was so open, because there is great force in the view expressed by the majority of the Supreme Court that the facts were reasonably

(1) (1856) 17 C.B. 697. Lord Esher M.R. a (2) (1885) 15 Q.B.D. 228, at p. 230. (4) (1887-88) 124 U.S. 38, at pp. 54 (3) (1895) 2. QB., at p. 100, per 55. i.

ible of but one conclusion, namely, acceptance. No doubt, H.C. or A.

er an acceptance has taken place is a question of fact for a snes

to determine where the circumstances are in controversy. But Merro-

uncontroverted maybe of such a nature or potency that the OrrAS, must decide whether or not in law an acceptance has taken |, 48 Hostery

to satisfy the statute. That is involved in the cases on this Co. Lrv. "subject (see Story on Sales, par. 278, and Hinchman vy. Lincoln (1) ). a peg There is not, in my opinion, any need to carry the matter so farin pyowas this instance, because, as I have said, the introduction of the honest Pipes a, belief of the buyer, that an (assumedly) existing contract did not exist, into the determining factors for the jury's consideration on the subject of acceptance vitiates their verdict for the appellant.

The internal and unexpressed belief does not accompany the act so

as to qualify and become part of it. Words explanatory of an act may have that effect - as in Nicholson v. Bower (2) and Abbott & Co, v. Wolsey (3). What the result of an act inconsistent with words might be in such a case, I have not now to consider. But a mental attitude opposed to the apparent meaning of acts affecting others cannot, in my opinion, alter or control them any more than secret instructions to an agent can countervail his apparent authority conferred by his principal's act.

If the appellant's view were sound - and my observations are intended to apply to both branches of the direction - no seller would be safe in relying on an apparently clear unqualified acceptance. 'The buyer might successfully plead honest belief that there was no contract but mere negotiations, and avoid an agreed price in favour of a lower price on a quantum meruit. Suppose two verbal contracts, both unsupported by writing, at different prices: can the buyer by mentally appropriating the goods to the second contract escape the first or vice versa, or perhaps escape both, according to cireum- stances? And, after all, if actual mental attitude is to be the determining factor, why is honesty necessary? A man's actual intention is his intention, whether that be honest or dishonest ; and, though searching for honest belief may sometimes be a step in ascertaining his intention, it is not the ultimate quest. Unless a

(1) (1887-88) 124 U.S. 38. (2) (1858) 1 E. & E. 172. (3) (1895) 2 Q.B., at p. 103.

Mrrro- POLITAN Kyrrrinc ANI Hostery Co. Lrp. (ux Liqurpa- TION)

man is to be bound by the natural or necessary result of his « as manifested to others whom they are to affect, I see no why the buyer's mental intention to appropriate goods to a pa

it, however dishonest he may be, if the statute be not complied wi If (dealing with this matter concretely) the appellant believed th were two contracts, what prevented it from mentally appropri i the goods received to the second contract only, or even to some 0 contract ? Nothing, in my opinion, but the stringency of a being bound by his acts and not sheltered by his secret: thoug But, if that be so, there must be a new trial, and, therefore, in. opinion the appeal should be dismissed. I would add that, for same reason, if the direction as to undisclosed belief be taken applicable to the issue of one contract or two (and it must applicable to either the first issue or the second), it is equally fats | the appeal.

Gavan Durry AnD Starke JJ. In this case the jury reti general verdict, and we cannot say whether they thought that 1 parties had made two contracts or only one. We are of opinion the jury would have been justified in finding that there was one contract between the parties. So far as the oral evid concerned the parties do not agree in their recollection of tl transaction, and the documentary evidence is not-so clear jury viewing it reasonably could not have found the existe! only one contract. It has been dealt with very fully in the sum up and by Campbell J. in the Full Court, and nothing is to beg

were two contracts, and in that case the alleged misdirection become of importance. It is said that the direction was wrong two respects : first, because the jury were told that the pa for, or acceptance of, goods necessary to dispense with a writing the Statute of Frauds, must be a payment for or an accep

goods by reason of the contract sought to be enforced, and,

because they were told that they were at liberty to consider |

4 secret intention of the persons paying or accepting in order to H- ©. or A. 4 ascertain whether their payment or acceptance was in fact made by coud reason of such contract. Metro- ' Sec. 17 of the Statute of Frauds is as follows: " And be it further otrrerg AND

enacted, that no contract for the sale of any goods, wares, and Fernie 'merchandises, for the price of ten pounds sterling or upwards, shall Co. Lrv. "be allowed to be good, except the buyer shall accept part of the goods sd eee so sold, and actually receive the same, or give something in earnest Tyoaas to bind the bargain, or in part of payment, or that some note or Parken memorandum in writing of the said bargain be made and signed = -

by the parties to be charged by such contract or their agents thereunto 'a lawfully authorized." The section enacts that a sale of goods, &c., shall not be allowed to be good unless some one of the prescribed conditions is complied with; and one of these conditions is thus expressed, "' except the buyer shall accept part of the goods so sold." The plain meaning of these words is that there must be an acceptance of part of the goods sold under the contract sought to be established. This is the fact to be ascertained, and the method of approaching the inquiry has been stated in various ways by Judges and text- . writers. It has been said that, if a plaintiff shows that goods have been paid for or accepted under such circumstances as indicate the existence of a contract of sale, he may then proceed to prove by verbal evidence the exact terms of the contract under which the payment was made or the goods accepted; but unless it

appears that the goods were accepted under the contract sued on, _ that contract cannot be allowed to be good, for in the ultimate result a plaintiff who wishes to dispense with the necessity for writing under the statute must show that the defendant accepted or paid for the goods because of the contract sought to be established, not because of some other contract. In this case the plaintiff alleged the existence of two contracts, one under Order 590, the other under Order 532 ; the defendant admitted the existence of the first contract but denied the second. The plaintiff sought to establish the existence of the second contract by means of verbal evidence, and its enforceability under the statute by proof of a payment for and acceptance of goods. The learned Judge told the jury, and in our opinion properly told them, that in order to satisfy the statute the

Merro- POLITAN Kyirrine AND Hostery Co. Lrp. (ax Liqutpa- TION)

'xp, the plaintiff had put on the same contract, that is to say, there was

plaintiff must show that the payment was made or the goods we accepted under the contract sought to be enforced by him denied by the defendant, and not under the contract admitted | the defendant. The learned Judge further directed the jury a follows : - " I ought to remind you of Mr. Thomson's contention o that point ; and that is this, that you have to look at it from th defendant's point of view as well as the plaintiff's, that if the defend nt honestly thought that 532 and 590 were really two numbers w

only one contract on which the plaintiff for some reason or oth had put the two numbers, that is, No. 532 on the preliminary order and 590 on the completion of that order, then it is for you to say whether in accepting it the defendant was really accepting for goods and paying for goods under 532, whether it was re recognizing the existence of some order distinct from the Order 590." It is said that the learned Judge, by these observations, invited th jury to consider what was the honest belief of the defendant w respect to the contract under which it was accepting goods paying for them and to attribute the acceptance and payment t that contract under which it thought it was acting. The charge a whole makes it clear that the jury were told to consider whether there were two contracts or only one, and in the passage qu above the learned Judge does no more than restate and submit for the consideration of the jury the defendant's contention. contention assumed that if the defendant believed that the go were being tendered to it under two distinct contracts, it was

of the evidence whether the defendant's acceptance had been one contract or under two. We think his Honor's further direet makes this sufficiently clear: he continues thus : - " In the se invoice the goods are described as delivered under Orders 532 Mr. Thomson's contention is that while that might mean g delivered under Orders 532 and 590, it might equally mean go delivered under a contract represented by the numbers 532-5 It is for you to say, gentlemen, whether on the whole trans

satisfied that there was a delivery and an acceptance of a rd s

under the disputed order, and, unless you find that, the cW~

| our opinion the view of the majority of the Supreme Court Kxrrrixe be maintained, and the appeal should be allowed. Hoatiay Co. Lrp.

Appeal allowed with costs. Judgment appealed - 10%)

from set aside and verdict of jury restored. mapaie BURNLEY & Sons Lr.

ON APPEAL FROM THE SUPREME COURT OF NEW SOUTH WALES.

ord and Tenant - Lease - Construction - Provision for re-entry - Oonviction for H.C. or A.

aed under Liquor Act - Action for ejectment - Effect of prior judgment - 1 994. spel - Practice - High Court - Appeal from Supreme Court of State - = ~

of objection not taken until argument in High Court - Liquor Act 1912 SypNey,

LS.W.) (No. 42 of 1912), secs. 128, 129, 180 - Common Law Procedure Act Nov. 20, 21;

9 (N.S.W.) (No. 21 of 1899), secs. 224, 249, Dec. 15.

| Tho appeant was the lesce from the respondent and the Homnsee of a Teanca and

hotel, 'The lease provided that, if the lessee should be convicted of CAV" Puy 12- offence under the provisions of any Act then or thereafter in force, a whereof might either alone or in conjunction with a conviction