JS Robertson (Aust) Pty Ltd v Martin [1956] HCA 2

High Court of Australia Dixon C.J. Williams and Taylor JJ. JS Robertson (Aust) Pty Ltd v Martin [1956] HCA 2

ORDER Appeal dismissed with costs.

Cur adv. vult.

The following written judgments were delivered:—

Feb. 22, 1956 Dixon C.J.

This is an appeal by the plaintiff in an action of contract. The judgment against which the appeal is brought was pronounced for the defendants by Martin J. at the end of the plaintiff's case. The ground upon which the learned judge took this course was that a concluded agreement between the parties had not been established.

The contract which the plaintiff alleged was one for the sale of goods. The goods forming the subject of the transaction consisted of a novel implement for pressing trousers and other articles of attire in which it is desired to produce a so-called knife-edge crease. The implement possesses two metal blades attached to a wooden handle through which an electric flex runs. The blades are electrically heated and they are passed up and down the creased part of the trouser leg by hand. The implement was called an Empire Electric Presser and was in fact manufactured by W. T. Driver of North Road, London.

The plaintiff appellant is a company incorporated in Victoria and carries on business as a manufacturer, general merchant, exporter and importer. In London it has a subsidiary company called J. S. Robertson (London) Ltd. The defendants-respondents who are named Martin are members of a firm called Arnos Supplies Co. who are manufacturers with a factory and office at Cheltenham in Victoria. According to their letter paper they too have a London office. The plaintiff, whose statement of claim was indorsed on its writ, sued the defendants Martin and W. T. Driver in the alternative. It alleged in its pleading that in July 1951 it had made a contract with the defendants Martin, or alternatively with them as agents for the defendant Driver, for the purchase by it from the Martins, or alternatively from Driver, of five thousand new trouser presses at the price of 13s. 0d. sterling (by a variation of the contract increased to 14s. 0d. sterling) f.o.b. London. It pleaded that it was a sale by sample and that it was a condition (a) that the presses should be of a quality equal to the sample, (b) that they should be of merchantable quality, and (c) that they should be reasonably fit for sale to the public by the plaintiff for use as trouser presses.