COOK AND ANOTHER V. THE COMMERCIAL BANKING COMPANY OF SYDNEY LIMITED, AND HANSON

COOK AND ANOT

THE COMMERCIAL BANKING COMPANY

REASONS FOR JUDGKENT

Oral

Judgment delivered at... Soe eoeEn © FERTH

iday 10th Septe

COOK AND ANOTHER

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ORDER

Appeal dismissed with costs,

COOK AND "ANOTHER

THE COMMERCIAL BANKING COMPANY OF SYDNEY LIMITED, AND HANSON

JUDGMENT BARWICK C.J. "(ORAL) — .

COOK AND

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THE COMMERCIAL BANKING OF SYDNEY LIMITED, AND

The facts of this matter, including the written agreement between the appellantsand Wool Exporters Pty. Ltd. fully appear in the reasons for judgment of the learned Chief Justice of Western Australia: I have no need to repeat them,

The question is whether the property in the 116 bales and 6 bags of wool was still in the appellantson 13th December, the date when the-second respondent, who was the receiver for the debenture holder, took possession of that wool, The agreement was an agreement to sell the whole of the wool on the flock of sheep in the possession of the appellanisat that time: it was thus an agreement for the sale and purchase of specific goods which were not then in a deliverable state,

Whilst the property in those goods will pass at the time the parties intended that it should pass. Section 18 Rule 2 of the Sale of Goods Act 1895 'of the State of Western Australia would ensure that in default of a contrary intention

the property in the wool did not pass until the wool was in a

2.

deliverable state: but the rule would do no more than that. There was quite clearly no intention that the property in 'the wool should pass while it was still on the sheep's back.

The contract contained no express terms as to the passing of the property. There were special conditions as to the ascertainment of the total price payable and as to the time of its payment, These had been inserted at the instance of the appellant.

There seems little in the conduct of the parties on which to found anything as to their common intention with respect to the passing of the property. I would not myself infer anything from the evidence as to the insurance of the wool from the time it was baled although clearly it would be possible to conclude from that evidence that the wool was considered by the parties to be at the buyer's risk from the time it was placed on the railway trucks at Kendenup.