George Wills and Co Ltd v Davids Pty Ltd [1957] HCA 6

98 C.L.R.] OF AUSTRALIA.

[HIGH COURT OF AUSTRALIA.]

GEORGE WILLS AND COMPANY LIMITED APPELLANT ;

DEFENDANT, AND DAVIDS PROPRIETARY LIMITED rj . REsPoNDENT. PLAINTIFF,

ON APPEAL FROM THE SUPREME COURT OF NEW SOUTH WALES.

Sale of Goods—Sale by description—Breach of warranty—Canned beetroot—Deleriora- tion in storage—Merchantable quality—Implied condition.

District Court—Appeal—Questions of law—Notation by trial judge—District Courts Act 1912-1953, s. 144.

The buyer of a number of cases of canned beetroot in vinegar sued the seller for breach of an implied condition that the goods were of merchantable quality. Although the documents evidencing the contract referred merely to canned beetroot, both parties knew that the subject matter of the contract was in fact beetroot canned in vinegar, and the labels on the cans so described the contents. The buyer's complaint was that the goods could not be held in stock without unreasonably quick deterioration. On examination fourteen to sixteen months after delivery some cans had developed hydrogen swells, some were blown so that liquid escaped from them. It appeared that beetroot canned in brine had not been found liable to deteriorate more rapidly than other canned vegetables and that a reputation for rapid deterioration did not attach in the trade to canned beetroot generally. In fact canning beetroot pickled in vinegar was introduced only some two or three years before the transaction and afterwards because of the short life of the product it was discontinued. The trial judge found that the fair life of tinned vegetables was three years, of beetroot canned in brine somewhat less and of beetroot canned in vinegar one year. He examined the wholesale grocery practice in relation to canned goods generally and held that the canned beetroot in question was not at the date of delivery of merchantable quality which was to be expected of cans of preserved foodstuffs. His Honour accordingly found for the plaintiffs, and his decision was upheld in the Full Court of the Supreme Court. On appeal,