1907. FRANCIS V. LYON. H. C. OF A. the appellant was willing to accept of the sheep offered to him all that were reasonably "fit to travel"; they were only asked this question as to sheep "fit to travel" for one day; this was a misdirection which resulted in no proper trial of the question at issue. If the appellant rejected sheep "fit to travel," this would be ground for a counter-claim or action, not for total repudiation by the vendor. The appellant on his part never repudiated the agreement; the jury found that he was "ready and willing to accept 5,455 sheep," which was their proportionate estimate of the number which would have been accepted from the whole flock, after rejection of such as were in his judgment " unfit to travel," in the terms of the agreement. The rejection that he in fact made was only provisional, and could not amount to a repudiation: Mersey Steel and Iron Co. v. Naylor, Benzon & Co. (1); Rhymney Railway v. Brecon and Merthyr Tydfil Junction Railway (2). This rule does not only apply to contracts where delivery is made by instalments: Howes Bros. v. Queensland Milling Co. (3); Johnstone v. Milling (4). The appellant's claim to reject certain doubtful sheep did not go to the root of the contract; the vendor's refusal to deliver any sheep unless the appellant submitted to take them all amounted to a wrongful repudiation: Prendergast v. Lee (5); Bradley & Son v. Bertoumieux (6); Oxford v. Provand (7); Freeth v. Burr (8). There was no proper trial on the question of damages. The appellant was not bound to realize the sheep at once if he had taken delivery; his purpose was to hold these sheep to sell afterwards, and he is entitled to substantial damages for the profits he would have made, of which there was sufficient evidence: Sale of Goods Act 1896 (60 Vict. No. 6), secs. 39, 52 (2); Greaves v. Ashlin (9); Buckland & Co. v. Crombie & Co. (10). The £250 was not a deposit but a part payment, and the respondent was not entitled to retain it except on an absolute repudiation by the appellant: Palmer v. Temple (11); Ex parte Burrell ; In re Parnell (12); (1) 9 App. Cas., 434. (5) 6 V.L.R. (L.), 411. (6) 17 V.L.R., 144. (7) 5 Moo. P.C.C. (N.S.), 150. (9) 3 Camp., 426. (11) 9 A. & E., 508. (12) L.R. 10 Ch., 512. Howe v. Smith (1); Levy v. Stogdon (2); Cornwall v. Henson (3); H. C. OF A. Benjamin on Sales, 5th ed., pp. 954, 955; Sale of Goods Act 1896 (60 Vict. No. 6), secs. 54, 55. Lukin and E. A. Douglas, for the respondent. This appeal is merely a fight as to whether the appellant is entitled to 1s. damages or nothing; he could have taken out the £250 paid into Court: Order XXVI., r. 6; Wilson and Grahame's Practice of Supreme Court of Queensland. p. 113. [ISAACS J.-The breach of this contract entitles the plaintiff to claim two things, damages and return of deposit; are not these two causes of action ?] The appellant was not ready and willing to take delivery of the full number of sheep which he was bound to take, when offered in accordance with the terms of the agreement. The jury found that only 90 were "unfit to travel" by rail, and only 400 "unfit to travel" by road for one day's journey; but the appellant rejected a much greater proportion. The respondent was right in treating this arbitrary refusal as a repudiation of the agreement. The contract was indivisible; it was no fulfilment of the contract on the part of the appellant to accept only such sheep as it suited him to take: Kingdom v. Cox (4); Chalmers on Sale of Goods Act, sec. 30 (1), 6th ed., p. 72; Reuter v. Sala (5); Logan v. Mesurier (6); Benjamin on Sales, 5th ed., pp. 323, 698. [ISAACS J.-If, as you say, the contract is indivisible, the wrongful rejection of one sheep goes to the root of the contract. There must be some margin where a right of rejection is given.] The contract required the appellant to perform two concurrent acts, namely to take the full number of sheep offered to him in the stipulated condition, and to be ready and willing to pay for that number: Bishop v. Shillito (7); Loeschman v. Williams (8); Forrestt & Son Ltd. v. Aramayo (9); Calcutta and Burmah Steam Navigation Co. v. De Mattos (10). The right to reject does not affect the essence of the contract if it is unfairly restricted by the (1) 27 Ch. D., 89. (2) (1898) 1 Ch., 478. (3) (1900) 2 Ch., 298. (4) 5 C. B., 522, at p. 525. (5) 4 C.P.D., 239, at p. 247. (6) 6 Moo. P.C.C., 116. (8) 4 Camp., 181. (9) 83 L.T., 335. (10) 32 L.J.Q.B., 322, at p. 335. 1907. 1907. H. C. OF A. respondent; it amounts only to a breach of warranty: Sale of Goods Act, Eng. (56 & 57 Vict. c. 71), sec. 11, and did not entitle the appellant to throw up the contract as he did; he should have accepted all the sheep offered, and sued for breach of warranty: Davis v. Hedges (1. FRANCIS v. LYON. [GRIFFITH C.J. referred to Mondel v. Steel (2).] If this case depends entirely on the Sale of Goods Act 1896 (60 Vict. No. 6), the only question is whether there was repudiation on either side. The respondent never repudiated the contract; he insisted upon its complete fulfilment: Mersey Steel and Iron Co. v. Naylor, Benzon & Co. (3); Whitcher v. Hall (4); Romberg v. Gilbert (5). "Fit to travel" means fit to travel by any reasonable means; and on the evidence the intention of the parties was apparent that the sheep were brought to Ilfracombe, a railway station, in order to be travelled by train. The jury found that all but about 100 of the whole 6,183 were fit to travel by rail to agistment country. On the question of damages, the appellant cannot claim what he might have made by a sale of the sheep in March, when they sold for 10s. 6d. a head. At the time, and under the circumstances surrounding the breach of the contract, the appellant would have lost money on the sheep; the evidence was that he would have been lucky to get rid of them at a loss: Mayne on Damages, 7th ed., p. 19; Thompson v. Marshall (6); Roth & Co. v. Taysen, Townsend & Co. (7). The appellant in fact did not prove any damages to the satisfaction of the jury, and no new trial can be ordered where he is only entitled at most to nominal damages: Macfarlane v. Leclaire (8); Rich v. Strelitz Bros. & Moss (9): Allan v. Pratt (10). In any case, having caused the breach of contract, the appellant is not entitled to recover the £250: Fitt v. Cassanet (11); Levy v. Stogdon (12). The appellant cannot succeed either in trover or breach of contract: Benjamin on Sales, 5th ed., p. 932; the property and right to possession were (1) L.R. 6 Q. B., 687. (2) 8 M. & W., 858. (3) 9 App. Cas., 434, at p. 439. (4) 5 B. & C., 269. (5) 11 Q.L.J., 96, at p. 101. (6) 3 W. W. & àB. (L.), 150. (7) 73 L.T., 628. (8) 15 Moo. P.C.C., 181. (9) 4 C.L.R., 601. (10) 13 App. Cas.. 780. (11) 12 L.J.C.P., 70. (12) (1898) 1 Ch., 478, at p. 485. H. C. OF A. respondent; it amounts only to a breach of warranty: Sale of 1907. FRANCIS v. LYON. Goods Act, Eng. (56 & 57 Vict. c. 71), sec. 11, and did not entitle the appellant to throw up the contract as he did; he should have accepted all the sheep offered, and sued for breach of warranty: Davis v. Hedges (1. [GRIFFITH C.J. referred to Mondel v. Steel (2).] If this case depends entirely on the Sale of Goods Act 1896 (60 Vict. No. 6), the only question is whether there was repudiation on either side. The respondent never repudiated the contract; he insisted upon its complete fulfilment: Mersey Steel and Iron Co. v. Naylor, Benzon & Co. (3); Whitcher v. Hall (4); Romberg v. Gilbert (5). 'Fit to travel" means fit to travel by any reasonable means; and on the evidence the intention of the parties was apparent that the sheep were brought to Ilfracombe, a railway station, in order to be travelled by train. The jury found that all but about 100 of the whole 6,183 were fit to travel by rail to agistment country. On the question of damages, the appellant cannot claim what he might have made by a sale of the sheep in March, when they sold for 10s. 6d. a head. At the time, and under the circumstances surrounding the breach of the contract, the appellant would have lost money on the sheep; the evidence was that he would have been lucky to get rid of them at a loss: Mayne on Damages, 7th ed., p. 19; Thompson v. Marshall (6); Roth & Co. v. Taysen, Townsend & Co. (7). The appellant in fact did not prove any damages to the satisfaction of the jury, and no new trial can be ordered where he is only entitled at most to nominal damages: Macfarlane v. Leclaire (8); Rich v. Strelitz Bros. & Moss (9); Allan v. Pratt (10). In any case, having caused the breach of contract, the appellant is not entitled to recover the £250: Fitt v. Cassanet (11); Levy v. Stogdon (12). The appellant cannot succeed either in trover or breach of contract: Benjamin on Sales, 5th ed., p. 932; the property and right to possession were (1) L. R. 6 Q. B., 687. (2) 8 M. & W., 858. (3) 9 App. Cas., 434, at p. 439. (4) 5 B. & C., 269. (5) 11 Q. L.J., 96, at p. 101. (6) W. W. & àB. (L.), 150. (7) 73 L.T., 628. (8) 15 Moo. P.C.C., 181. (10) 13 App. Cas.. 780. (11) 12 L.J.C.P., 70. (12) (1898) 1 Ch., 478, at p. 485. |