Purcell v Bacon [1914] HCA 86

Purcell v Bacon [1914] HCA 86 - HCA 1914 case summary — Zoe

[47]

is now found to be available for pastoral purposes during a portion of the year in favourable seasons. At all the relevant times it was common knowledge that it would be necessary to remove the cattle in question from Lake Dunn and Ballyneety as soon as practicable, as water was fast drying up not only on the land but on the route over which they would have to travel. In order to remove them, it would be necessary to provide a sufficient number of drovers, with horses and other plant. If they were sold, it would be necessary for the vendor to provide a sufficient number of men to collect the cattle together in drafts of convenient size, in which they could be counted before being handed over to the custody of the purchaser. In this part of the country men and horses cannot be provided at a day's notice, so that some time must necessarily be allowed for preparations on both sides for the delivery of so large a number of cattle roaming at large over an extensive tract of land. The necessary opera- tions to be undertaken by the vendor would necessarily comprise three separate stages: first - collecting or mustering the cattle in drafts or mobs of convenient size in the vicinity of water, if there should be any; second - keeping together, or, as it is called, "holding," the drafts so collected until the time of actual delivery; and third - driving them to the agreed place of delivery, and there counting and delivering them to the pur: chaser. These operations would require the employment of many stockmen and horses, and would occupy a considerable time, so that the preparations for delivery would have to be begun some time before that appointed for formal delivery. It was expressly found by the jury that there was a usage obtaining in the business of cattle selling and buying whereby the date fixed for delivery is taken to be the day on which the delivery commences, and not the day on which it is completed. It is, of course, practicable for the vendor's stockmen and the pur- chaser's drovers to co-operate by mutual consent in all these operations, although, strictly speaking, one part of them is the duty of the vendor alone.

[61]

tends that, in view of all the circumstances of the case, even if the stipulation as to date of delivery contained in the contract of 22nd March is a condition and not a mere warranty, which he disputes, the contract is not severable. The general rule applic- able to such a case is, in my opinion, that stated by Mellish L.J. in Wilkinson vy. Clemens (1): "As a general rule all agreements must be considered as entire. Generally speaking, the con- sideration for the performance of the whole and each part of an agreement by one party to it is the performance of the whole of it by the other." In the application of the rule regard must be had, as in other cases of contract, to the subject matter and the surrounding circumstances. In the present case, although the subject matter of the contract was in one sense two lots of cattle, they had always in the course of negotiation been treated as a single subject, they were grazing, if not in actual company, yet practically in the same place, and that place was of such a nature that for the purposes of delivery both parties would have to make special preparations. The purchaser would have to pro- vide men, horses (about 30) and plant, ic, vehicles for the carriage of provisions for the anticipated journey, which was one of about 300 miles. The vendor also would have to provide men and horses for mustering and "holding" the cattle ready for delivery. A single deposit of £500 was paid in respect of the whole contract. Finally, the delivery was to begin on the same day at the same place, but it was not contemplated that the delivery of both lots of cattle should begin on that day. In substance, therefore, the contract was for the sale of 2,200 cattle which had been treated in the course of the negotiations as a single subject matter, to be delivered on the same day, at the same place, under natural conditions which, in the expressed opinion of the purchaser, made it highly desirable that the delivery of the whole number should be, as nearly as possible, contemporaneous, and which, apart from his opinion, would render any other course unnecessarily expensive and undesirable for both parties. The question of severability is one of construc- tion, and it is the duty of the Court to ascertain and give effect

[83]

The defendant's contention before us was, as I have said, that the agreement found by the jury was an agreement to alter the original written agreement of 22nd March as varied by indorse- ment, and that Oliffe had no authority, express or implied, to make such an alteration. The question of Oliffe's authority to do what he did was clearly left to the jury, and it must be taken that they found it as a fact. In my opinion much may be said in favour of the view that he had authority to vary the contract itself as to time of delivery, but I do not find it necessary to express a final opinion upon it, for in my opinion the actual arrangements between the plaintiff and Oliffe, to which [ have referred at length, although called an "agreement" in the ques- tion put to the jury, were not in substance an alteration of the terms of the contract of 22nd March, but a mere adjustment of the details of the manner in which it was to be performed. From the nature of the case many questions were bound to arise as to the details of delivery, which it would be necessary to settle on the spot, in order that the cattle might be collected and held together and the custody of them transferred from the plaintiff's servants to those of the defendant's. The only question before this Court is whether there was evidence upon which reason- able men could act to support a finding that Oliffe's authority to take delivery of such a herd, at such a place, and under the known circumstances, implied authority to adjust such matters of detail and to do what he did. What he did was in substance to promise to take provisional delivery or custody as soon as the cattle were mustered, and to provide men for that purpose, so that there should be no need on plaintiff's part to muster until Oliffe's men were ready to assume the custody. In the events which happened, Oliffe said, in effect, that he was not ready and would not be ready until after the 26th to take such provisional delivery. The plaintiff might probably have accepted this state- ment as an intimation that the defendant would not be ready on the 26th and as a refusal to take delivery on that date, and if the contract was not severable, and the stipulation as to delivery was a condition, he might have refused to make any delivery at

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Judgment (140 paragraphs)

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