Ringstad v Gollin and Company Pty Ltd [1924] HCA 57

OF AUSTRALIA.

(HIGH COURT OF AUSTRALIA.|

RINGSTAD . 5 , i ' i ' . APPELLANT ; PLAINTIFF,

AND.

GOLLIN & COMPANY PROPRIETARY ) meat LIMITED. ; . ; i Beal RESPONDENT.

Drrenpant,

ON APPEAL FROM THE SUPREME COURT OF NEW SOUTH WALES.

Contract—Construction—Sale of goods—Shipment in monthly instalments—Contract subject to war, dc. causing delay—Postponement of delivery—Long delay— Frustration of contract—Cancellation of contract—Enemy Contracts Annulment Act 1915 (Cth.) (No. 11 of 1915), sec. 4 — Enemy Contracts Annulment Act 1915 (N.S.W.) (No. 24 of 1915), sec. 4.

By a contract in writing, made in March 1916, the defendant sold to the plaintiff a certain quantity of carbide of caleium as to which it was agreed that shipment should be from a continental port in six approximately equal monthly parcels commencing one month after the completion of a prior contract between the same parties. The contract contained the following provisions :—"* The above sale is subject to strikes, floods, war, accidents, fire, failure of manufacturers to deliver, non-receipt, non-delivery or mistakes in cables, and/or other contingencies causing delay or non-shipment. Vendors under this contract do not guarantee shipments as above owing to freight or other difficulties beyond their control, but will do their utmost to ship in accordance with shipments stated." The prior contract was completed in May 1917. Before any delivery had been made under the later contract the defendant in April 1919 gave a notice to the plaintiff purporting to cancel the contract. In an action brought in 1922 by the plaintiff against the defendant to recover damages for breach of the later contract by failure to deliver the' carbide,

Held, that, on the construction of the contract, notwithstanding the happening of any of the events mentioned in the contract as causing delay or non-shipment, the defendant was bound to ship the carbide in six monthly parcels as and when those causes should cease to operate.