Judgment. Knox C.J. The plaintiff sues to recover damages for treach of a con~ treot in writing dated 25th April 1921 for sale and delivery te him 4h of about 4000 wethera<and alternatively for convereion of the said wethers. The defendant counterclains for damagee for breach of the seid agreement by the plaintiff. The facts proved are as follows t- By contract in writing dated 25th April 1921 the defendant agreed to sell to the plaintiff about 4000 wether weanere therein described at 9/6 per head. The relevant terms of the contract are ag follows:- "Terms cash on advice of purchaser of number delivered free of ex- "change at St George. Pro forma delivery to be given and taken at "Cashmene West on or about the 25th day of May 1921 or within 2 "noure from noon on the said date unlass bona fide delayed by rain, "flood or bush fires, but so that delivery shall in no case be de- "layed beyond the day of 19 6 Such delivery ehall "be considered actual delivery (witkeut another count being made) "ahen payment is completed, but not before, and further until such "payment ie made, Purchaser to hold the above-mentioned stock as "Agent ontyZin trust for the Vendor, as continuing owner of the said "steak. Should any diapvte arise in regard to macula contract "euch diepute shall not vitiate the sale, but the matter in diapute "shall be stétled by Arbitration in the usual way." The sale wae made by the firm of Camerona (which carried on business at St George as stock & station agents) as agents for the defendant. During the whole of the relevant period Misa Withers wae in charge of the office and business of the firm, and she sot negotiated the Gontract. At all material times beth the defendant 4 the firm of Camerona knew that the plaintiff resided at Tamworth é@in the State ef New South Wales, On cr about llth May Mise Withers, at th KS request of the Plaintiffxehagx engeged a drover, one Gallagher, te take the sheep when delivered te Mungindi, his remuneration being fixed at £35 per week from the time of delivery of the sheep to him. On the 16th May the plaintiff telegraphed from Tamworth to Camerons asking that firm to "wire date Kirby expects deliver B hoggets." T,S.Rirby t. and on the following day after communicating withegendent: Cameren o : ing director ef the replied by telegram "Kirby shearing will deliver weaners twenty-fifth to twenty elghth weather permitting." On the 20th May Mias Withers for Camerons telegraphed te the plaintiff asking whether he would be at St George to take delivery of the weaners. Cashmere Weet where delivery was to be given is about 20 milea from St George. The plain- tiff did not receive this telegram till later as he had left Tamworth for Mungindi on the 19th May. He arrived in Mungindi on tke 26th May and communéWated by telephone with Mies Withers who was in charge of Camerone office. Hie account ef the conversation is as follows!- "When I rang up the office a clerk was there and I asked how much rain "had fallen. I wanted tc know on account of the state of the roads for the cara I gleo asked if the weaners were ready for delivery 4 | "the olayk told me she would ring Mr Kirby and let me know later on at Mungindi: thet I wag not to leave until she let ma know as she did "not think the weaners were ready for delivery. " 3. " She rang up again ? + Yee, and she aaid the sheep were not ready for "delivery, and she would advise me later on when they wefe ready. JT told her I could not be there for delivery within a fortnight and I would accept the drover's count. T asked them to wire me before the 26th May as I was leaving for Brisbane for a few days. BytHis Honour: Wire you wheee ? Wire me to Tamworth, BY Mr Macrogean: What did they say tc that?-They promised to wire me." . Mies Withers who was called on behalf of the defendant denies that she had more than one converaation with the plaintiff on that day and denies that the plaintiff asked her to wire before the. 26th Cece? mia or told her that he was gigs going to Brisbane for a few days on the 26th May or at all. She said she rang up the Hotel in Mungindl after the first conversation but was told thatthe plaintiff had left. T think that Without making any reflection on her credibil ity;her memory of details shea he 21f admitted {t w4e "aisty" was not accuratcsand I de not think it can be relied on on this point. On the whole the plaintiff cave his evidence fairly and I see no reason to doubt that hie version of the conversation. which I accept, ie sub- stantially correct. It is corrobated by the telegram of 2th May which was sent by Miss Withere te the plaintiff at Tamworth - " Kirby expects have weanera ready about Sunday or Monday thirtieth * and by the fact that ne communt¢ation passed between the plaintiff & her between the 20th & 2th May. The plaintiff id not take exception to the rostponemont or to the uncertainty of the date of ddlivery & defendant in thle respect. On the 26th no point ie made against the us May the plaintiff left Tamverth for Brigbane - he left Brisbane for Tamworth on the 3lst May and in the ordinafy course should have reachee Tamworth by train early in the morning of the lat June, but owing to an accident on the railway did not arrive there till about 3.30 on the afternoon ef that day. Bn the morning of Saturday the @&th May Gallag- hertook pro forma delivery of 3795 sheep and on that day Camerore sent @ telegram addrassed to the plaintiff at Tamworth in the following words "Gallagher took delivery 3795 Cashmere weanere today wire what route travel alao date trucking Mungindd wire money Kirby's credit Q.N.Bank." The information as to the number of sheep delivered was supphdiea to Camerons by J.S.Kirby, and later on the same day confirmed by Gallagher. On the same dag J.SeKirby telegraphed to the plaintiff at Taaworth to the same effect. Both telegrams reached Tamworth after neon on the 2&th and were received by the plaintiff about 5 o'clock on the afternoon of the lst June, On the Jlet May Kirby not having heard from the plaintiff telecraphed to him at Tamwerth "Will take eheep from drover unless ray- ' ment ledged four o'clock to-merrow Wednesday," and on the same day Camerone telegraphed to "plaintirs "Kirby taking sheep from drover Gal- lagher failing payment by four a'talock Wednesday firet June." These telegrams were sent at 4 o'clock and 5.20 respectively on the efternoen of the 3lst and were received by the plaintiff with the tel- egrame pf the 2%th above referred to, On receipt of these telegrame 5. Plaintiff at 5.20 pem. on the lst June telegraphed to Camerons "Kirby unreasonable only just arrived home if sheep interfered with "you hold him responsible will pay according my contract waiting reply 4 . . Thig telagram wae received by Cawerons on the morning of 2nd June but tha telephone line to Kirby was out of order and when Miss Withera com manicated the message to hin acme heurm later the sane day he informed that her,he had retaken poaseseion of the sheep from the drovers. On receipt of thie information Miss Withera on the 2nd June telegraphed to plaintiff "Kirby took sheep from drover yesterday". In fact the sheep were taken from the drover early in the morning of the 2nd June. On 'receipt of this telegram plaintiff on @nd June telegraphed to defendant "Holding you responsible taking sheep from Gallagher" and on 3rd of June after egonsulting hie Solicitor and hia banker plaintiff telegraphed to defen- dant "Owing accident railway line was detained north until Wednesday r your wires Baturdsy & Tuesday not received until after sheop/ taken in view of circumstances whl] wire purchase money if Gallagher allowed of these telegrama take eheep wire reply". The defendant did not reply to sitherAput on the 4th June after teabad reaghed the defendant the sheep were sold to one Fitzgerald for delivery on the 22nd June at 9/6 per head On the 7th June plaintiff telegraphed to Camerons "Woukd you accept money to tender to Kirby for payment sheep". On the Sth June Mr Mar- getté a member ef the fira of Camerena replied by telegram d*Kirby vA " &. "deolines accept money ag sheep now sola." The defendant in suppert of its defence that the plaintiff was not ready and willing to perfarm the contract atbempted to prove that the Plaintiff was not in a position financially to pay for the sheep in question, Out in my opinion failed te establish this. The plaintiff obt wae no doubt relying on,sn vanes from his bankere or financial agents to pay fer these sheep, but I oan find nothing in the evidence to just- ify me in holding thet he was not in a pesition to obtain the necessary agcannglation sp netacadg » ancthiong Co furte Ge totradl" waount, especially in view of the fact that there was at the time a rising market for sheep, and that the value of these sheep was substan- ths fen of value tially more than the contract price. The evidence on Ahesex points will in cennection with bo dealt with more fully on: considering the question of damages. I see no reason to doubt thet when the pleintiff sent the telegram of 3rd June offering to wire purchase money if the sheep were re-delatered to Galleher he was ready and willing to remit the necessary sum er by agra + telegram on this condition being Beapddedcwith: The firet question to be determined ia whether on the facts abote atated the plaintiff has established his cause of action, and in order. to determine this question 14 ig necessaryto ascertain kt what, waa his wad obligation,under the condition of the contract with respect te paywent- "Cash on advice of purchaser of number delivered free of exchange at St George". Mr Macrosean for the plaintiff argued that his ob- ligation to pay only aress en his receipt of advice of the number of sheep deliverel, & that this obligation would be discharged by that evan if the ntiff wae to be treated as haying racelved aivics as to the number on, the afternoon of Saturdey the 28th May a remittance by post ofathe amount could not in the ordinary course following Friday the 3rd June, and that consequently the defondant vas not entitled to treat the oan- and au at an and/retake the s con the nd Juné. £ Mr Greham for the defendant contended that the yender's obligation was fulfilled by aendirg notice of the number delivered to the pluce where the buyer might reasonably ke expected to receive it and that on thie being done the purchaser's duty was to make ths money available at St.Ceerge within a reasonable time after such notice would in the ordinary oourse of transmission have rezched the place to which it was sddreesed, Mr Graham alao relied on secs. ® 42(c) & 49(3) of the Sale of Gocds Act, but in the view which IT take of Nee Ranke Ww the case neither section is applicable. In my opinion this cenditian imposes on the vender, when the purchasar ia not present at the gro form. delivery, the duty of informing him of the number @f sheep Gelivored sither by communicata ing it to hig' personally ar by putting it in couree of transmiagien to him by some methes agreed on ty the parties or reoogntecd as proper an wend in transac 'ww whether the notics § = bE fe that it was usual te obtain such 3 the purohuser's duty was te make paynernt as agreed within the time etip- wlated, or,if nof + + st E ES a4 ixad then within a reascnable time, but until the obligation of the vendor was discharged the obligation of the purchaser +o pay did net arise. Tn this case it must be taken that the defendant or ite agent knew that the plaintiff intended leav- ing Tamwerth for Brisbane on the 26th May and would be away from Taw worth for a fow days and accepted this positicn. Leaving Tamworth on the plaintiff would arrive in Brigbane in the evening of Friday the 27th and could not reasonably te expectad te reach Tam werth on his return tefore the garly morning ef Wednesday the lst June. From Thureday nigh = morning would afford five full daye, two of which would be ccoupied in travelling while cf the remaining thres one fas ¢ Saturday and ene a Sunday. On the 24§h May plaintifl had been informed that the defendant expected to have the she about Sunday the 29th or Monday the 70th May but no definite date wae fixed for pro forma delivery, the plaintiff being willing to accept delivery at 4 time conrvehieht to the defendant. Without any further notice to the plaintiff pro forma delivery way given in the morning of May, amd ints ton of the nmanher de i patched tc him by two telecrame on that day. Thess telegrans d1d not in fact reach the plaintiff until late in the afternoon af Ted- neday the lat June, the plaintiff's arrival in Tamworth having been delayad by an accident on the Ratlways In these cirewnstances I am of opinicn that the obligation of the plaintiff to pag the purchass money did net arise until Ke reccived the telegrame advising him of the number of sheer delivered. He was then entitled tc a reasonable time after receipt of this infermatien to make the proper amount of purchase money available to the defendant at St George, and ayen as- auming that the money hed been sent by telegraphie remittance from Tamworth on Thursday momning the 2nd June it would not have reached St George before the defendant had retaken possession of the shaep, and by doing so had shown its intention of repudiating the contract and treating it as at an end. It. was in fact admitted by J.o.Kirby that he treated tha contract ag determined by the omfasion of the plaintiff to psy the purchese money on the lst June. In my opigdten the plaintiff had not at that time/at the time when the defendant tetook poagosaion ef the sheep committed any breach of the contract and it follows that the defendant was net ene titled to trast the contract as determines and that the plaintiff da entitled to recover, Tt follows aleo that the counterclaim of the defendant fails, plaintiff ta enti- yaestion what amount led to reaever by way of damages. The measure of damuges in res- peet of the sheep ia tha fifference between the contract price = 9/6 per head + and the velue of the eheep on the 2nd June. The evidenoa as to their value is conflicting. The sheep iniqueetion a ware offered by the plaintiff shortly before the date of delivery to ene Hayes at 12/6 per head. Hayea inspected on the 26th or 27th of May and refuesd the offer, Yhe natural inference from this is that they were not considered te be worth 12/6 per head at that time, The same sheep were scld on the 4th June at 9/6 per head to Fitsgerald but I am not satisfied thet thie aale affords a true indication of their value aadit appeare that Fitzgerald gold about 3000 of thom shortly aftarwarda at a much higher price. Another lot of sheep bred in the same wa theae was bought by the plaintiff from the defendant on April 28th at %/6 ner head off sheare for delivery late in July er early im August and the plaintiff resold them on the 5¢h Mr Baynes esatimated the value of sheep of May at 11/4 per thes class in the St Coorma district at the relevant time, in the weel and in good condition at 13/- to 13/6. He had net eeen these shoep ° ~ and based his estimuted on the off sheara value @ station description and on the value of wool at that time, T.8,Kirby eaid these sheep w infested with crass seed and some were struck with the fly, they ware outting up a geod deal and not walking well, nee ag to their candition was exaggerated, drove these sheep to Munginci later in Jungs and aubsequently-aold 3000 of them at 14/- and Moore whe was in charge of the « went over them for the purpose of dreseing then for fly during the first week in June and enly found it necsasary to dress 15 out of the 3795. Mr Margetta 'of Camerone bad not seen thease sheep but from his knowledge of values eetimated the value of theses sheep at the relevant time at from 9/- te 10/~ per head. The offer made by Landers carries no wsight as evidence of value. During Ma there had been rain in Southern Queensland and New South Walesa - a circumstance which would tend to enhance the value —- and I aw satisfied that between April 25th and June the 2nd the market was rising. On the whole of the evidence I think 1t is felr te can- clude that the value of these sheep on the 2nd of Bune was not lege than 11/6 per heads The measure cf damages is the estimatedZloss '\ directly and naturally resulting in the ordinary course of events from tha eellerta breach of contract. (Sale of Goode Act esc. 52(2) ). On this footing thefplaintitf ie entitled to 2/- par head on 3795 aheep equal to £379-10-0, He 45 ulac entitled te £35 the aount paid ¢ to Gallagher the drever, making in all £424-10-0, &t the requaat of the Jef | I assess the amount te which 244 woulda be entitlel by way of ges in the event of estsblis its BI counterole ls 12. Assuming the plaintiff to have committed a breach of the contract by failing to pay the purchase:money or or before the lat or 2nd of June the defendant sustained no lose by teason of the breach, the increased value of the sheep being more than sufficient to cover the amount of. loss which it is alleged resulted from the aseumed failure of the plainitff to perform the contracts The defendant claimed £494-9-3 damages but in my opinion the evidence eatabliehed no more t4kh than £150 and the value of the sheep at the time of the aesumed breach exceeded the contract price by £379-10~0. In these circumetances the deferidant is entitled tp recover nominal damages only, which Ii assess at 1/-. Judgment for plaintiff? for £414 16-0 with costs of action ~ Counterclaim dismissed with costa.