Bannister v Heyman [1924] HCA 16

34 C.L.R.] OF AUSTRALIA, 243,

requested to state a special case. As to this, it is unnecessary, in H.C. or A. the view we take of the first point, to say anything, and, having ee

regard to the absence in this appeal of that learned counsel, Cini we say nothing about it. Wenawd: We agree to the order suggested. SHInE. Order appealed from varied by striking out the questions directed to be stated and substituting those set out in the judgment of Knox C.J. and Starke J. Otherwise order affirmed. Parties to abide their own costs of the appeal. Solicitors for the appellant, Maddock, Jamieson & Lonie. Solicitor for the respondent, V. J. Whitehead. Bish. (HIGH COURT OF AUSTRALIA.} BANNISTER : y . APPELLANT; DrFenpant. AND HEYMAN ri E é : fs - . RESPONDENT. Prarntirr, ON APPEAL FROM THE SUPREME COURT OF TEECL OA. VICTORIA. 1924.

aw Contract—Construction—Performance—Agreement to purchase at future time 90083 stecnounse,

to be then ascertained—Rendiness and willingness Appropriation of goods— pry, 3 Agreement to grant sub-lease—Consent of lessor not obtained —Repudiation. June 10.

The plaintiff, who was carrying on the business of a ship-chandler and Kuox C.J.,

: 4 Isaacs, desired to sell and dispose of all his stocks of chandlery, entered into an agree- Galea Siutty,

ment with the defendant whereby it was agreed (inter alia) that, from and after <ftich and

the date of the agreement and for a period ending on a specified date, the

H.C. or A. 1924,

BANNISTER

Heyman.

HIGH COURT (1924,

defendant should purchase "all such stocks of chandlery which are now carried by" the plaintiff except certain classes of chandlery, and that the plaintiff would continue selling to others; that on the specified date the defendant " shall purchase and take over" from the plaintiff "all such of the stocks remaining in the ship-chandlery department "of the plaintiffas the plaintiff " shall be willing to sell and dispose of to" the defendant ; that the plaintiff would " sub-let '' to the defendant as from the specified date " the lease of the premises" in which the plaintiff carried on business, "such sub-lease being subject to the approval of" the lessor, at a certain weekly rental; and that, if on the specified date the stocks to be taken over by the defendant were not reduced to a certain sum, the agreement could be postponed for a further six months on the same terms, but if before the end of that period the stocks should be reduced to that sum the defendant should take them over. An action was brought by the plaintiff against the defendant to recover damages for breaches of the contract, the breaches alleged being the refusal by the defendant to purchase or take over the goods on the specified date and his refusal to pay rent for the premises.