Q fracas Guage Sn the Sigh Vout Roun of Bouty Ouotialio' Syoring' "WF Voungy senor g € valence alleged to be due teh _ under dn agreement for the agis t feeding aud taking care of vert _ghoep vin!~ 4OWO from 25th Oeton ho weeks : ; 4000 fro lst November 1919 to 30th April 1920 o oer sondents and The responden sphellants eledin ig concerned 'the subs in ascordance with the terme @: the 'agedenant, or only-upon the: 'auaber af . tte 3 of sheep actually depasturing on the land from, time to time, On the counterclaim the iseues raised and contested ini this "Oourt are (1) Thether the appellant was under.a duty to take 'eare ofethe sheep I ; and (2) if so,whether he hed failed in the performance of his duty. te time (2) that the appellant ed ureder, a dety to take: care of bhe sheep" 7 = AG). thet' th take duescare of the sheep, and on these findings entered judgment on the claim for the appel- lant for £424-13-8 and on the counter claim for the respondents for £1117-4-6. The sw of £424-13-8 was made up as follows viz:- £499-13-lu for the sheep agisted on Naracoorte, £91U-&-3 for those agisted on Sheoak Range and £114-11-7 for disbursements ema lese { £lllc paid on account. The sum of £1117-4-8 was made up of £836-8/- damages for loss of 1394 sheep worth 12/- a head lost through the negligence of the appellant and £28) -16-8 expenses incurred in efforts to recover these sheep. The first question for consideration is on what footing the amount payable to the appellant for agistment is to be calculated The agreement between the parties was partly in writing and partly oral. Before any written communications passed between t ene IS DM ATMA I AY the parties the appellant had agreed with the respondents! manager, one Kimberley, to take on agistment 8UUU sheep on certain specified areas of land. The respondent Young then telegraphed to. appellant accepting his offer and confirmed this telegram by a letter which, so far as is materiai, is in the following terms viz:-"As wired today reading ~ will accept 16000acres, 6ULU acres and 2 lots 19U0U acres each early November for 6 months and notice 2 months before expiry if extenSion required. Your men to at once see all boundary fences securé and water supply assured by repairing and erecting t= wind- mills. lid. per week per head. writing. please confirm. reply paid. I have now much pleasure in confirming this arrangement and understand that you require this matter kept quiet, and we will do s0;' in fact the drovers will bé told you own theams sheep. I hope to have | them forward in first week in November, or as near that as possible, | it all depends on'tig shearing weather. Each lot will be carefully H dipped in Cooper's powdered dip, full strength; each lot distinctiy | branded, and also nosed marked. 400° merinos will go to the areas West of Penola, and thé balance (merino and comebacks).to West of Naracoorte. " \ "Terme - lid. per head per week. Payments, £120 per month balance to pe adjusted on removal. Term for the two 19,0uu acre areas to be six months, and a similar term for the 16,vuu and 6,uU0 acreg areas, put with thestnotice to be given. two months before expiry of lease if an extenS8ian desired." The appellant replied by letter in the words following:~ "I am in receipt of your letter of the 14th inet., and I confirm the arrangement§ regarding the leases to your.Mr Kimberly in accordance therewith, : The original number of sheep to be grd\sed on the 16,vU00 and 6,v00 jan acre blocks West of. Penola was 5,00C, but as the former tenant requires to retain 2,000 acres for 1% days after the transfer in order that he may dispose of his sheep, I will be quite satisfied with the 4,0U0 sheep as now arranged. You understand that the balance of the money fp due at expiry of your lease will be made up at per head on the 8,00u sheep. I will attend to taking delivery of sheep, and the necessary details as desired, also the fences and troughs, and I have engaged the nec- essary. good boundary riders." The respondent Young wrote in answer to this letter ) + "uvS merinos will arrive at Penola about end-of October or very early in November, and will travel in two lots. 2,4u5 merino comebacks will arrive at Naracoorte about the same time, 1600 marinos will arrive at Naracoorte probably seven to ten days later." . bod i ro jenarenar si as ~~ On the 25th of October 4040 sheep were delivered on Sheoak Range and on lst of November 40uv sheep were delivered on Naracoorte. The appellant contends that the true meaning of the agree- ment {fp was that payment was to be made at the rate of lid a head a week for about 60> shkep, and this contention appears to me to | pe supported by the stipulation contained in the app llantS letter of the 19th August in which he says"you will understand that the balance of the money due at expiry of your lease will be made up at per head on the SvuU sheep." Having regard to the fact that , : ssa > under th@€sx agreement the respondents were to have the exclusiveyof . the land in question for 6 months and that it would be practically | impossible to ascertain with any reasonable degree of accuracy the number of sheep on the properties etach week, I think it is clear that the agreement was that the nugber of sheep to be put on should e fixed at SUvU or thereabouts and that payment should be made jon the assumption that sheep to that number were on the land during 'the period cover8d by thé agreement. It would be unreasonable to expect that the 'appellant would give an exclusive right to: graze on the properties for 6 months without making provision for an ad- equate return, or that he would accept a payment the amount of which depended wholly on the number of sheep the respondents chose to put | on the property and the length of time they chose to:keep them there. In fact 6040 sheep were put on by the respondents ~ a number' approx- imating as nearly as practicable to the 8uUé agreed upon. Of these 4olku were put on the Sheoak. Range property on the 25th October 1919 and were ndt removed till the 31st July 192u a period of 40 weeks; 4000 were put on Naracoorte on 1st Novenber 191y and were not #/¢ removed till 30th April 1920 a period of 26 weeks, and of these : 1200 were then put on Sheoak Range and 'remained there +412 31st July 1920 a-period.of 13 weeks. ~The appellant 'is- in ny opinion entitled i . Bes ether Wea ate to payment calculated on. the basis of 4640 sheep for 40 weeks at ada per week ~ £1010 = 4uud sheep for 26 weeks at the same rate — £650 and 12uu sheep for 13 weeks at the same rate - £97-10/-, making in all £17§7-12/-. He is also entitled to £114-11-7 the amount' found to have, been dhered, by: him making a total of £1872-1-7. 'Oredit must be given for £11U0 paid on accounts leaving a balance due to the appe llant of £772-1-7. The next question is whether the appellant was under an obligation to take care of the sheep while on.this land. In his evidence the appellant said thatzhe tola Kimberley that he would treat the respondent*s' sheep as his. own, that he would look after them like he would his owi and that he would inspect the sheep frequently. The correspondence shows that the : appellant was to provide a man and 'horses necessary to boundary ride each agpaddock to pay half of the man's wages, and to. find horse feed, to cart salt and specific to each section of the land free of cost to the respondents to see all boundary fences secure and water supply assured by repairing and erecting windmills and troughs, to attend to taking delivery of the sheep, and to advise the respon- dent Young from time to time of anything which the appellant should consider required attention. In my opinjon these terus of the agreement imposed on the ap- pellant the duty of taking such care of the sheep as a reasonable man would of his own sheep in the circumstances, and it is unnecess- ary to consider what would have been the extent of. nes dutyax if he had not expressly undertaken these obligations. ; , The next question is whether the appellant performed the duty which he had so undertaken. It appears from the evidence that when the sheep were removed from Sheoak Range. only 2438 could be found out of the 4040: originally put on that property leaving a balance of 1602 unaccounted. for. The learned trial Judge who had the advantage of seeing the Witnesses called to give evidence respecting this shortage came to the conclusiow that 15% of the number originally delivered was a fair allowance for mortality in thé cireuustances. He was in a better position to es- timate the value of the evidence than this Court and I think his con- clusion on this point should be accepted as correct. Deducting from the 1602 sheep unaccounted for 15% of 4040 - viz 606 = it appears. that 994 sheep were not accounted for. ; As to these the trial Judge arrived at the conclusion that they had been removed from the property some months before the expiration of the period covered by the agree- ment. . He was guided to this conclusion by the evidence of certain witnesses whom he accepted as reliable and I do not feel myself ina position to reject Bis finding. Aseuming the facts to be'as he. found them I.think there is sufficient evidence of negligence on the part of the appellant to make him responsible in damages to the extent of the value of these 99 sheep. Accepting his estimate of 12{- per head as the value which was not challenged before us these sheep - . 12] were worth engpae, se No argument was addressed to ua with reference to the sum of £26U-16-8 allowed to respondents as damages in respect of, expense incurred in endeavouring to recover the missing sheep. The result is in my opinion th-t the appellant is entitled to jud- . : te geent on his claim for £772-1-7 and the respondents te judgment én theirdcounterclaim for ABBXXXEZT 2679-88, There remains the question of costs. Both 'in the Supreme Court and in this Court each party sucodied in part and failed in part. Hawing regard to all the cirdumstances I think substantial justice "wild be done by leaving each party to bear his own costs of the proceedings both in the #yxy Supreme Court ahd in this Court. yenent entered untsrolaim for en the claim for sppollant for £772-1-7 and on 278-84, No order ua respondents for SPRING V_ YO a MR, JUSTICE ISAACS. JUDGMENT. 4s to the appellants action the only question iaes as to the terms of remuneration agreed npon, The circumstances narrated in the oral evidence coupled with. the .terma, of. the. letters.of the, portics leave no doubt in wy. mind thet the eontractual. intention. was to pay. for [the 8000' sheep"..a8. the flock was termed ot.the rate-of riascaier: * head per.weekd The express end defini te. stipuistion; te, pay.2t180 won per month during the period commencing in esrly November and lasting six months certain with pogsible extension, and to pay "the balance" on removal ."on the 8000 sheep" is quite inconsistent with-the respondents .reasding of the bergein:in.this-respect.: That wag cthat Ly he. was toe be free to put 48,.many .or.es Lew a8. he :pleased..on the. land for the waole of the stoted period, with-the right vot extension, ran provided only he paid for.ae many ¢8 were there. 1dd. vper-heed. per week, There are other provisions in the letters opposed;to that reade ing, which has the further disadventage of. being ubbusinesslixe .and improbable. The appellant.is-entitled to judgment for the flock, eailed "the 6000 sheep" during, the originslLy, agreed period of sfx months eng for that Uti and a' further number of 1200 sheep for.an extended period of sbout three months. ff 'As to. the counteroleim the. main contest was an to. the dominant nature of the bargain, The learned Judge - treated. it 5 sn sgistment contract, - casting: j the burden on the oppeliant of accounting forthe diseppesrance | i of the mesing sheep and holding. that not only neg the aprell ant fatled in thisd, bat that the evidence .hsd positively satisfied his the lesrned dJuége, that ths appellant wae negligent snd thereby oBused loss. The respondent aaintsined the correctness' of, this decision, The appelient, during the srgament raised 9 gontention that the trae oharacter of the pergain mwa that of a mere letting of the grass with of placing the sheep on the lend, leaving their supervision end cere to their owner - the respondent, excgpt for some special under takings expreasly cet ont in the correspondences . It wee stremously ergued for the.eppellent thet no primary duty of | cere rested on him, that in fect cll neceszary o#re hed been observed, and that if any.of the speciel undertakings had been broken the oms lay onthe réapmndent te establieh the fact 4,to prove affirmatively thet the breach wos the couge of the logs. The letters pertly constituting the contrect do not sgy.expresely, which is ths correct view, , The word "Lesage" and the word "agistment" are both used. _ But ne single, word will determine ihematter. _ fhe Court mast look to the substance of, sootion in order to juége of ite real . nature, And where the partics jicave their language ambiguous, their conduct in relation to jt ie @ legitimate guice to their, cammon. intention, For this Hatcham v East Africas Protectorate (1919 A.C, 553) 18 the moet regent end Zor ue the moet auvhorivative cecishon, 3 ' There ere ceveral reasons Lor concluding that the learned Judge wes right in sttribating fo the bargain the dominant choragter of an agistment bergein, that is one which the. appellant egreed to receive... end take delivery of the respondent's sheep, place them in his peddocks re-doliver them to their owner on demand, One very good resson is thet the appellent himself sued on thet bssis.¢ The statement of o14im is copiously eloquent os to the contrect being one of agietment, he condusted the o8se ond obteined his judgment on the basis of the olaim being for Sgistment his notice of appes] confirms the view, and the sffidevit in support of the novice of sppeal continues it. The agreement is admitted on doth sides to be partly oral, an¢é. partly written it is chvlous that some posgible diffioulty of the Statute cf Frauds which might heve been pleoded was entirely avoided if the sgreement were one for agigtment instead of a letting giving exclueive rights to occupy lend end use the gress. See for instence Masters TGreen (£0 Q,5.b, 607) end Jones vy Flint. (10 A,& 5, 755). A Court would not be eSger in 'hove circumstances to permit 8 party during the srgument on appeal to entirely change front oné sesume en incon- Sietent attimeds.on a doubtful question of intention in 'order to avoid Liability on a cross-claim based on the fwidementel sounrsoy of his" OMe thet is quite sicsereny from eligane .on some 'eptoiei quelifios- (dong 42 any cuntsined in the contrect 'solong se 8 consistent" poaition.{s maintained. Bat spart from the yueation of inconsistency / 4. the ogreement is in fect and truth of en agistment cheracter, In vlew of the evidence it is guite unmecesuery .o determine wh+ther it 2% bergein sith sli lie eomion is me primarily 2 simpis sgistu: law liabilities, plue somesuper-edded obligstions expressly underteken, or whether the appellants obligotion of care arises hy resson of the express promise made by h to trett aud leok efter the respontent's sheep as hie own, In ¢ithzr esse, Se the evidence siews he agreed to receive and take Celtvery of the sheop, he tia recelve and take "delivery cf them, he beutowed hy himself end hie men vome consider= able omount o@ care outside the s,ecidi undertakings ond his express eleim avermente in his statement of sxkim sre that he "agished" the sheep, ané olaimed "for the sgietment, feeding and tearing osre of cheep™ for the respondent st his recuest. He wae in either sspeot @ bailee of tic sheep, Oud 28 such his obligation st the ené of the beilment wu to have there the cheep he 4 eccount for thelr shsence reaeived for the beilor ta (Goléman vy Hil] 1919 1 K.B. 443). He acoounted satisfsctorily to the learned primary Judge for 4 consldaroble number of the sheep undelivered by establishing @ certein probable mortality. But vs te a lerge number he has felled, By resson of the onus ef proof, and of the effirmative' oral evidence to which the learned Judge geve substantial credence, sn? aiso taking into consideration the oppellant' own deglared ovinion of the estimeted prebable shortages, the appellant hee failed to redeliver or satis feetorily scesunt for 996 sheep. he velue of 12/= per heed chich the leorned Juige placed on the missing sheep hus no" been challenged, ané thersfore the appellant is responsible on this head for £587./R Other items are not challenged, ' SPs1.G Vv. yvouug. dudguant Rich.J. The appellant obtaine: a .udgyeent on his olaim and the respendonts obtain- ed ta judgment cn their counter-claim. Fags of the parties contands that the learned: jude An sa Parsons 22 pot mvarced Bim sufficient. The appellanta eouplaint with respect to his ovn claim is tha% the contract was not properly Interpreted with respect to the terms of payment. In the tolegrma of Augist tho tth. are these words "I}d rer woek per head", they are not accompanied by any reference to the number of ahocp. The learned judge considered that they meant only Iida per week per head for every sheep actually co the land and of course only for the time it waa thera. The appellant's argument was that whon the whole of the elireunstances: exe looked at and the conversation between the appellant and the representative of the respondents and particularly when the gor- Feapondence was read the fair and reasonable meaning to be gathered was that the terme were that the respondents wereg entitled to graze the Be ake flock? a00 or thereabmta and the appellant wad to be entit- mole ot t a for tha whale flock, whether 96 grazed BI led to.payaguh ob tho rate mantlona ar nave In fy apanton t2@ 8D: el Lan HyRENt V tat argument 19 ocrragt ang the J mat oe varied aqoordingly. A more UAftiqult auaation ant and then tor the fines Tame in tha history of tne CROs ountingd for miasiag sheep dal had maled that the ome of aac and that he had failed to Gisocharze the onuae - ban er anans 6.h0R tas raised on behalf af the @gvoll~ Tne Lonried juage at the oR: Jay upon the apnol lant Bot laa om testing b:4 »eling desea Cauase] rads 4 §alciovity -beca.70 PC ere a af sound soul: sartainly awott bh @ cot Hatase cs tne rode siona putsows tae Partlede Las bh the of pain, a4 raot gor gd tent Lavelving porposaioalits BOF patlce Ja 4 2. dt sas dn the anatase of u iguaa ~ 2 Lettie _ROARe Pode won 2 Pave yak < form uni souls bo Siffiecdt te uphold we "evtanom @ pet Tous oenvingod it ds ct at thet shore ainer Look & 2 ot tha aa vatarial ao Lei so to tha goenslisian 2 $f the, tars ef raymant Tee Rm angdaliaa in the ancellont': favour * ™ aoe a. whole of ule Ploekd 8900 or thezeabouta and tha synellant was te be entit- lod %o.paynonh as tho rate meationad for the whale fleck, whether 20 grazed my) ar nate In ny opinton tae an e@llante! argument 1a ocrreot and the juignents mat b@ varied agvordingly. A mere JAfTiauIs quoation was raised on behalf of the eypoli= ant and then for tie first Gime in tia history of tne cree. = The donriad juave at the trial had maled that the anue of agcountingd for miaslag sheep ley upon the apvellant and that he lad fadled to diecharge the onua. - Bothaae on testing tee Reding doormat Coase] rakget an an, cene s.deh pd ae AF sound sond: oartaindy avotl that sa Tlowlty besaaco it the doh@ rent natura oa, tne PoJaclona bubsuus BAM PaPbivae Dabok vibhuet sur oghitaent kavelwing respossioilibl |@ of uw PA. AD wus dn the aetase of . dgusg = a loth Tete ron 9 paversal ft ferm art weal bo SUTeclt t; upnold of pain. EPGaas ei ttanwe es tet Doo. cenvinged it ds oct at thet stare sider: to the genshisdon AMID Look. soot the ooo raterdal ae let dn the aemellant': foveur «a te the terns ef puymant Toxo sutdafiea