1364 HIGH COURT H.C.or A. Solicitors, for appellants, Connelly «& Crocker, Mell ale Solicitors, for respondent, Lamrock, Brown & Hall, Me Cunistur v. Ronxsow. ' {HIGH COURT OF AUSTRALIA.]} BOWDEN BROTHERS AND COMPANY LIMITED . 'i é ree ge } PLAINTIFFS, AND ROBERT LITTLE, Trapina as Roperr Lirrte ann Company DEFENDANT, ON APPEAL FROM THE SUPREME COURT OF NEW SOUTH WALES. H.C. or a, Vendor and Purchaser—Sale of gootls to be shipped abroad—Co 1907. contract—Obligations of vendor as to quality and condition of good ee warranty. 7 nha A firm of merchants carrying on business in Japan agreed to rt 48:% chaser in Sydney "450 tons of Japan onions" at certain prio ey 16. Sydney," the goods to be shipped by the vendors from Japan ships on approximately specified dates. 'The vendors shipped fron Grifith C4, Japan, to Sydney, a quantity of onions which, so far as condition Teanes 39. were concerned, were merchantable at the port of shipment, but at the port of destination were found to have become during the and unfit for sale. The purchaser rejected the goods and refused t price. 4 In an action by the vendors to recover the price, and a cro purchaser for damages for non-delivery of onions in contrac 1907. — he purchaser the bill of lading, policy of insurance, and all necessary bo ng documents to entitle the purchaser to obtain delivery of the goods, and Tap thereafter the risk in the goods was wholly upon the purchaser. Le ITTLE. feld, also, that it was a question of fact depending upon all the sumetances whether, and to what extent, the purchaser relied upon the Il or judgment of the vendors to supply goods fit for the purpose of ship- nent to Sydney ; that it could not be implied, from the mere fact that the goods were, to the knowledge of the vendors, bought to be shipped abroad, "should be implied depended upon the extent to which the purchaser did in "fact rely upon the skill or judgment of the vendors. 'ciroumstances be implied, discussed. Statements by Blackburn J. in Ireland v. Livingston, L.R. 5 H.L., 395, at p. 6, and Lord Davey in Stroms Bruks Aktie Bolag v. Hutchison, (1905) A.C., 5, at p. 528, as to the incidents of a "c.i.f." contract, adopted. Decision of the Supreme Court, Little v. Bowden Bros., 23 N.8.W. W. , reversed. BowbEN Brorners & Coy. Lrp. lent No. 522/05 is Sydney, June 14th 1905 NS.W. of From s. R. Little & Co. Messrs. Bowden Bros. & Co. Ltd. ex Street, Sydney _ Kobe, Japan. cif. Sydney. Insurance as usual. . As usual. 00 tons June Finance, 30 days S/draft : ean a. against documents through "Waldemar" Com. Bk. of Aus. H. C. oF A. 1907. —— Bowprn Bros. & Co. Lrp. » Littre. HIGH COURT Sample No. d Goods. Four hundred and fifty (450) tons Japan onions as follows 100 tons @£i 350 ,, » £6 15 a} subj to a brokerage, if necessary, of Ly provided we are not covered by cabled prices, Packing to be in usual open boxes, : Bowden Bros. & Company Ltd. per Herbert, Bo Accepted Robert Little and Co. 'The first action was brought by the appellants. The d tion contained two counts, of which the first set out the ¢ in terms and alleged that the appellants shipped a porti onions in accordance with the contract, and alleged as a br that the respondent did not accept the appellants' drafts ag documents in respect of the onions shipped, but refused to ¢ the drafts and did not pay the appellants the price The second was the common count for goods bargained and goods sold and delivered &e. The respondent pleaded several pleas, of which only the and sixth are material to this report. 'The fifth plea state it was a term and condition of the agreement that the should deliver the onions at the place of delivery und agreement in a merchantable condition, yet they did n but tendered onions that were in an unsound and rotten ¢ wherefore the respondent refused to accept the onions 0 for them or accept the drafts. The sixth plea alleged a term and condition of the agreement that the onions shipped in such a condition that upon arrival in § would be in a merchantable condition, except for such tion as would be the necessary and inevitable result of yet the onions were not shipped in such a condi ion, arrival in Sydney were not in merchantable condition OF AUSTRALIA. 1367 rioration, and were unsound and rotten and unmerchant- 4. ©. or A. e in condition, and that that condition was not occasioned by pels 'ion the necessary or inevitable result of the transit, Bowpey efore the respondent refused &e. as alleged in the fifth ee v. 1 the action by the respondent, the declaration contained peer counts, the first of which set out-the contract as an agree- that the onions should be delivered by the appellants in chantable condition, yet the appellants did not nor would er to the respondent the onions in accordance with the con- ract and delivered only a portion of them, and those delivered not in merchantable condition and were unsound and rotten d unmerchantable whereby the respondent suffered loss and e to the amount claimed in the action. second count alleged an agreement between the appellants the respondent that in consideration of the respondent 'ing to buy from the appellants four hundred and fifty tons onions at certain prices upon the term amongst others the onions should be shipped from Japan at the times and manner agreed upon, the appellants promised that the upon arrival in Sydney would be in merchantable con- except for such deterioration as would be the necessary inevitable result of the transit, yet the onions upon arrival dney were not in such condition, but were unsound and not by reason of deterioration the necessary or inevitable of the transit, whereby the respondent suffered the loss damage stated in the first count. e appellants in their pleas denied the alleged contract, all the material allegations in the respondent's declara- and set up exoneration and discharge as to a portion of the nts and the acceptance of certain shipments in satisfaction scharge of breaches in connection with certain other ship- da jury. Certain special questions were put to the jury, to which they made special findings. The material s and answers are as follows :— H.C. or A. 1907. = Bowben Bros. & Co. Lrp. v Litre. HIGH COURT up to the contract of June 14th 1905, did Little agree to tak the risk of transit ? Answer : No. 2. Were the onions when shipped at Kobe (a) in merchant condition ? (b) In a condition reasonably fit for a voyage { Kobe to Sydney ? (ce) Saleable in the market at Kobe under denomination mentioned in the contract, that is merch onions ? Answer: («) Yes, if for consumption in Japan, (b) No, Yes, subject to the proviso mentioned in («). 3. Were the onions delivered in Sydney in merchantable dition ? Answer: No. 4. Was the condition in which they arrived due to nece deterioration or to being shipped in faulty condition ? Answer: The jury are of opinion that the deterioration these shipments was due to the fact that the onions were no for an oversea voyage from Kobe to Sydney under the conditi of weather they were exposed to before shipment. 5. Is there a custom in the port of Sydney that under aci contract without qualification made there for the purchase goods of a perishable nature the risk of oversea transit is on | buyer ? Answer: We find there are two customs.in the port of Sydr with regard to a cif. contract wih tin vi Chamber of Commerce custom which e&sts the liability o buyer, and the custom prevailing with the Sussex S chants which casts the liability on the shipper, but there is evidence before the jury to show which custom has been lo in existence. Acting under the direction of the learned Judge as to construction of the contract, the jury found a verdict for | plaintiff in the respondent's action, assessing the damag £3,729 15s. 10d.,and a verdict for the defendant in the appellan action. The appellants moved the Full Court for a rule nisi for a trial in both actions. A rule was granted in both actions on grounds that the verdicts were against the evidence, and OF AUSTRALIA. onor should have directed the jury that the Chamber of Com- custom governed the transaction, and in the appellants' on the additional ground that a verdict should have been d for the plaintiffs. Several other grounds were taken, as ich the Court refused to grant a rule: Little v. Bowden (1), and from that refusal the present appeal was brought we of the High Court. The substantial grounds of appeal e, that the verdicts were against evidence, and that the arned Judge was in error in directing the jury that the appel- were bound to deliver the onions in a merchantable ition in Sydney except for inevitable deterioration in ; that he should have directed the jury that there was no gation on the appellants to deliver the onions in a mer- hantable condition in Sydney; that the risk of transit was the respondent; and that the appellants would have fulfilled heir contract by shipping onions of the kind contracted for at e and forwarding the proper shipping documents to the spondent, and that on the findings of the jury the appellants e entitled to a verdict. Know K.C., Lamb and Rolin, for the appellants. 'The contract, 8 an ordinary c.i.f. contract between parties in different coun- for the supply of goods for shipment, without any special itions as to the place where the goods were to be delivered. vendors fulfilled their obligations when they put on board at ort of shipment goods of the contractual description, insured and forwarded to the purchaser or his order the policy of urance, bill of lading, and all necessary shipping documents : rims Bruks Aktie Bolag v. Hutchison (2); Ireland vy. Living- n(3); Parker v. Schuller (4); Hamlyn & Co. v. The Griendts- Company (5); Tregelles v. Sewell (6). saacs J. referred to Wancke v. Wingren (7); Delawrier & Wylie (8), .8.W. W.N., 1 (6) 7H. & N., 574, at p. 585. \ at p. 528. (7) 58 L.J.Q.B., 519. .L., 3 (8) 17 Court of Sess. Cas., 167. Sot (9) (1905) 5 S.R. (N.S. W.), 71. 4. H. C. or A. 1907. pasreees Bowpen Bros. & Co. Lro. v Lirtre. H.C. or A. 1907. — Bowpen Bros. & Co. HIGH COURT goods were involved and the ships were specially mentione the contract. If it decides that ac.i.f. contract, apart from sp shipment, it is inconsistent with the English decisions. The fi finding of the jury must be taken as a finding that the respon did nothing to alter the legal incidents of the contract as preted by the Judge. If the seller took the risk it is h understand why he should undertake to insure, and why should be any stipulation as to the method of packing. The of shipment being the place of delivery, the only que whether the appellants supplied the goods contracted for at place. Their only obligation as regards quality was to onions that were marketable there. If the respondent's conte tion is correct, it must be because there was an implied wai " But no such warranty is to be implied unless the facts show # the purchaser relied upon the judgment or skill of the vendor supply goods reasonably fit for the particular purpose for whi they were required : Jones v. Just (1); Benjamin on Sale ed., pp. 622, 625 ; Sule of Goods Act (56 & 57 Vict. c. 71), see. sub-sec. (1). Whether the purchaser did so rely is a questio fact depending on all the circumstances: Randall v. Ne No such question was put to the jury. [They referred to v. Holt (3); Wallis v. Russell (4); Chanter v. Hopkins (} Gardiner v. Gray (6); Dickson v. Zizinia (7).] E [Grirrira C.J.—I doubt whether a foreign voyage | particular purpose within the meaning of the rule]. Assuming that point against the appellants (Brown v. Edg (8)), they were not dealers in or manufacturers of the respondent relied upon the appellants' judgment. 'The ship were not left to select the best according to their judgment, were bound to ship a certain quantity of an indicated onions. (Grirrirn C.J.—It is somewhat like a case of agency. (1) L.R. 3 Q.B., 197. (5) 4 M. & W., 399, ane (2) 2Q.B.D., 102, at p. 109. (6) 4 Camp., 144. at (3) (1903) | K.B., 610. (7) 10.C.B., 602. id (4) (1902) 2 LR, 585. (8) 2 Man & G., 279. LR] OF AUSTRALIA. ndor undertakes to select good articles of a particular class of oods on behalf of the purchaser.] 'The evidence is overwhelming that the appellants did every- jing reasonably possible at Kobe to ensure that the goods should be of the proper quality. Even if there were evidence to the con- ry, there should be a new trial to have the proper question GrirrirH C.J. referred to Freeth v. Burr (1)). 'The evidence is all one way on the question whether the goods e warranted fit for shipment to Sydney, and the jury have und that the goods were merchantable at Kobe. If the res- goods should be merchantable in Sydney he has failed in h cases, and the appellants are entitled to judgment. (Grirriru C.J.—A possible definition of "merchantable" would "onions of the agreed crop and of such a condition and quality mt they did not appear on a reasonable examination unfit for umstances. ] At any rate there is no absolute warranty such as is neces- uy for the respondent to establish on the present pleadings. v. Foreign Hardwood Co. (3).] regards custom, the jury's finding shows that there was no tom binding upon the appellants, and it is irrelevant, if the ellants are right in their construction of the contract. . L. Campbell and D. G. Ferguson, for the respondent. The count of the declaration in the cross-action left it open to plaintiff to contend either that the delivery was to be at ney or that it was to be at the port of shipment. The Judge's ruling that delivery was to be at Sydney was not based upon the ere fact of the contract being c.i.f., but upon other considera- ns as well, e.g., whether or not there was an appropriation of he goods to the contract at Kobe in such a way as to take the control from the shippers and give it to the purchaser. The (1) LR. 9C.P., 208. (2) (1893) 2Q B., 274. i (3) (1905) 2 K.B., 543. H.C. oF A. 1907. Saad BowDEx Bros. & Co. Lr. Lire. H.C. or A. 1907. ee) Bowvrn Bros. & Co, Lrp. v Lirtte. HIGH COURT evidence showed that the goods were to be in the control shippers until delivery in Sydney. The property did not the purchaser on shipment. The goods were not consigned te the purchaser but to the shippers' agents in Sydney. The was upon the person in whom the property was during ti The fact of the contract being c.i.f. is not relevant to the q what was the place of delivery; the surrounding cireums must be looked at in order to answer that question. Tela Livingston (1), did not decide that c.i.f. means delivery at p of shipment. (Grirrira C.J.—It was not a judgment on that point, but was a clear statement of what the learned Judge understood be the meaning of a c.i.f. contract.) None of the cases go so far as to decide that the words ¢ settle the question of place of delivery. Cif is really only reference to the price and mode of payment. [They referred Jones v. Just (2); Delawrier & Co. v. Wyllie (3).] j The property does not pass until the point at which the parti intended that it should pass: Sanders v. Maclean (4). The b of lading in the present case was transmitted to the agent of t vendors. The naming of the ship by the purchaser did not mak it his ship: Benjamin on Sales, 5th ed., p. 394; Shepherd ' Harrison (5). The shipowner was a mere bailee for delivery the purchaser, and the property did not pass until the goods the indicia of property in them were handed over to the chaser in Sydney: Mirabita v. Imperiai Ottoman Bank Even if under the contract the purchaser might have to pay fo the goods before delivery, that would not affect the ques what was the place of delivery. The 'contract was not to but to sell onions. [Isaacs J.—In Lecky & Co. Ltd. v. Ogilvy, Gillanders & Co. a cif. contract is referred to as imposing certain obligations.) The ci.f. is only one of the circumstances to be looked at i order to discover the intention of the parties. That is the eff (1) LR. 5 HLL, 395, (5) LR. 4 QB., 196, 493; LR. (2) L.R. 3Q.B., 197. HLL, 116. in (3) 17 Court of Sess. Cas., 167. (6) 3 Ex. D., 164, at p. 172. (4) 11. Q.B.D., 327, at p. 341. (7) 3 Com. Cas., 29. OF AUSTRALIA. remarks of Blackburn J. in Ireland v. Livingston (1). If it otherwise, Stréms Bruks Aktie Bolag v. Hutchison (2); and ier & Co. v. Wyllie (3), could have been decided without Bent. In Tregelles v. Sewell (4), the goods had been handed er to the purchaser in London and paid for. The receipt of bill of lading did not constitute a delivery, because the goods still be rejected if not of the kind contracted for. But, ming that under the contract delivery was to be at Kobe, he evidence as to the condition of the goods on arrival in Iney shows conclusively that, when shipped, they were not asonably fit for the purpose for which they were purchased. A ict the other way would have been unreasonable. 'The pur- aser is entitled to rely upon the rule in sub-see. (1) of sec. 12 of the e of Goods Act 1893, if that is taken to be a statement of the mon law. 'The evidence shows that he relied upon the skill judgment of the sellers. The sellers knew the purpose for ich the goods were required, that is, shipment to Sydney for here, and were therefore bound to supply goods such as uld reach Sydney in a merchantable condition. '(Grirrern C.J.—That raises a very difficult question. Is ship- int to Sydney such a purpose as is contemplated in the rule? Dickson v. Zizinia (5). hat case is distinguishable. The goods there were only required » be of the average quality of shipments of that season, so that he warranty was expressly limited. sacs J.—But here the sellers were to ship at a particular 'They would not have been carrying out the contract if they ere is no evidence that that requirement was likely to result erchantable onions being shipped. GrirritH C.J.—The obligation was either absolute or to take ble care to ship merchantable goods. If it was not absolute, ms to me that the question as to reasonable care has not been itted to the jury. I think that "merchantable" means, not uch as will in fact carry to Sydney, but such as would be bought y merchants as goods that will carry.] (DLR. 6 HLL, 395. (4) 7. &N,, 574. 2) ae AG 515. (5) 10 C.B., 602. jess, Cas., 167. (6) 2 App. Cas., 455, at p. 480. H. C. oF A. 1907. ae Bowpex Bros. & Co. Lap. Livre. H.C. or A. 1907. a BowpbEn Bros. & Co. Lro. v. Lirrte. May 15th. HIGH COURT The jury have, in effect, found against the sellers on that ° At any rate the sellers were not absolved by merely shippi goods merchantable at Kobe. The purchaser is not dri rely ona warranty, but may treat the contract as a conta ot 14 of the Sale of Goods Act 1893. The sellers were to sup goods fit for shipment to Sydney. In either case the pu is entitled to refuse the goods, whether they fail to answer warranty or a description. [They referred to Bowes y. Sly (1); Drummond v. Van Ingen (2); Davis v. Hedges (3); Mow v. Steel (4).] i [Isaacs J. referred to Chalmers, Sale of Goods Act 1893, ed., p. 88; Gillespie Bros. & Co. v. Cheney, Eggar & Co. Bullen and Leake, Precedents of Pleadings, 5th ed., p. 362.) _ to raise what the Court holds to be the real question. Knox K.C., in reply. No amendment should be allowed the Court sees from the evidence that there is a reasonable pect of the respondent succeeding with the amended plead There is no evidence that the appellants did not take re care in selecting the goods. Cur. adv. Grirrita C.J. This litigation between the appellants respondent arises upon a contract for the sale of 450 r Japan onions. The appellants are a joint stock company r tered in Queensland, carrying on business in Queensland Japan, and having a branch in Sydney. The respondent | merchant carrying on business in Sydney. The real transacti between the parties is embodied in a written contract dated June 1905. [His Honor read the contract of that d already set out, and continued :] The onions were shipped Japan and on arriving in Sydney were found not to be merchantable condition, and the respondent refused to accept # (1) 2 App. Cas., 455, at p. 480. (4) 8 M. & W., 858. (2) 12 App. Cas., 284. (5) (1896) 2 Q.B., 59. (3) L.R. 6 Q.B., 687. R.] OF AUSTRALIA. respondent to recover the contract price, and the respondent ight a cross-action against the appellants for a breach of the contract to deliver the onions. The appellants action was in accept the drafts or to pay the price, and the second count $a common money count for goods bargained and sold and for goods sold and delivered. [His Honor then read the material 'tions of the pleadings and continued :] _ Iremark as to the first count of the respondent's declaration that, if it was intended by it to allege that the onions were to be vered in Sydney, then the question arises whether that was really the contract, while, if it was intended to allege that they were to be delivered in Japan, then on the jury's findings there s no breach. At the trial voluminous evidence was given, and it appears that the learned Judge who presided at an early stage of. the case directed the jury that upon such a contract as this, that is, to 'ship onions in Japan at a price c.i.f. Sydney, the risk of transit fell upon the vendor, and the vendor was bound to deliver them na merchantable condition at the port of destination. He gave at ruling believing himself bound by the decision of the Supreme Court in the case of Lorimer v. Slade (1), and he dhered to that ruling when directing the jury. On His Honor's tion the jury were bound to find a verdict for the plaintiff the respondents action, in accordance with His Honor's direc- on as to the construction of a c.if. contract, and for the same son were bound to give a verdict for the defendant in the appel- lants' action. 'They were asked some specific questions to which gave answers, upon which the question now in debate nds to a great extent. [His Honor then read the questions 'Submitted to the jury and the jury's answers and continued :] 7 'The jury, therefore, found that there were in existence in the of Sydney two contradictory customs. On their answer to th i question very little turns. But it appears to me that, if e are such inconsistent customs, there can hardly be said to be (1) (1905) 5 8.R. (N.S.W.), 71. Thereupon the appellants brought an action against the H.C. or A H. C. or A. 1907. — Bowpen Bros. & Co, Lrp. v. Lrrrie. Griffith O.J HIGH COURT a custom at all in the sense in which that term is unders law. Judgment was entered in accordance with the verdict, A motion was made to the Supreme Court for a new ti ia both actions, which had been treated as consolidated. Supreme Court granted a rule nisi upon a subsidiary point which it is not necessary now to make any reference, but refus a rule upon the main point, the construction of a c.f. contr considering themselves bound by the authority of an unre case in the same Court in which they had followed Lorimer Slade (1). Iam unable to derive any light from that ease; seems to me entirely distinguishable. We have not the advan age of knowing the reasons of the learned Judges. We mu therefore, deal with the matter at large. i The appellants appealed from the refusal by the Supreme to grant a rule wisi, having obtained leave from this Court. question is what is the real nature of the contract, and what ai the incidents of it. In construing a contract regard must always be had to tl surrounding circumstances. It appears from the documents th there had been some preliminary negotiations between h parties. The subject matter of the sale was Japan onions, they were called, to be shipped at Kobe in Japan. It appe upon the evidence that the only onions procurable at the time o the year at which they were to be shipped were Sen Shin onions which were procurable only in the neighbourhood of Kobe. ships by which the onions were to be sent were specified, so th the dates of shipment were approximately fixed. It appears from the evidence oral and written that onions are a cargo whieh carries very badly at that time of year, so that there was a v great risk of deterioration on the voyage, and both parties w re fully aware of this circumstance. It appears, therefore, that th contract was for shipment at Kobe, Japan, of that season's onions in specified ships leaving at approximately specifi dates, and subject to the term c.i.f., whatever that may mean. Cif. means literally, of course, cost, insurance and freight. Om of the recognized legal incidents of such a contract is " that the shipper fulfils his obligation when he has put the cargo on bo : (1) (1905) 5 8.R. (N.S.W.), 71. OF AUSTRALIA. forwarded to the purchaser a bill of lading and policy of nee with a credit note for the freight." Per Lord Davey ims Bruks Aktie Bolag v. Hutchison (1). In Ireland v. ston (2), Blackburn J. in giving his own opinion, in Hannen J. concurred, stated the incidents of a cif. in terms that have since then always been accepted orre He said:—"'The terms at a price, 'to cover cost, ig it, aud insurance, payment by acceptance on receiving ing documents, are very usual, and are perfectly well stood in practice. The invoice is made out debiting the nee with the agreed price, (or the actual cost and commis- with the premiums of insurance, and the freight, as the case y be), and giving him credit for the amount of the freight hich he will have to pay to the shipowner on actual delivery, d for the balance a draft is drawn on the consignee which he ound to accept (if the shipment be in conformity with his ) on having handed to him the charter-party, bill of , and a policy of insurance. Should the ship arrive with » goods on board he will have to pay the freight, which will uke up the amount he has engaged to pay. Should the goods be delivered in consequence of a peril of the sea, he is not id on to pay the freight, and he will recover the amount of interest in the goods under the policy. If the non-delivery is equence of some misconduct on the part of the master mariners, not covered by the policy, he will recover it from » shipowner. In substance, therefore the consignee pays, been bought and shipped in the ordinary way." Price, includes the total price on delivery at the port ination. The same doctrine is expounded in the clearest in the Scottish case Delawrier & Co. v. Wyllie (3) to my learned brother Zsaacs referred in the course of argument, That being the obligation of the shipper, it that the appellants shipped the cargo and sent the bill of the policy of insurance, and other necessary documents. duty being to ship in Japan and not to deliver in Sydney, —, '51D, at p. 528. (2) LR. 5 HLL., 395, at p. 406. 8) 17 Court of Sess, Cas., 167. H. C. or A. 1907. ane) BowpENn Bros. & Co. Lrp. Y. Livtie. Griffith 0.J. Griffith C.J. + any complaint against them for a breach of duty must be * authorities for that position. It follows, therefore, HIGH COURT upon their acts of commission or omission in Japan, of Wancke v. Wingren (1) and Parker vy. Schuller (2) ar was wrongly brought, unless it was a term of the contraet tl goods should be at the appellants' risk during the voyage; is equivalent to a warranty that they should arrive in dition. The first finding of the jury, that, having the surrounding circumstances, Little did not agree to risks of transit, cannot be construed as a finding that then such a warranty on the part of the appellants. No was placed upon it in argument, and, it must be taken, I as merely negativing an express agreement by the re ent to take the risk. The obligations of the parti thus left to be determined by the rules of law applicab the absence of express agreement, strictly speaking, the lants are entitled to a non-suit in the action by the respom or at any rate to a new trial. But it was suggested whole matter was fought out at the trial, and that there now to be an amendment of the pleadings so as to raise th complaint which the respondent may be entitled to make the appellants. It would be somewhat novel in New South to grant a new trial on pleadings to be amended in order to be allowed to retain his original counts, upon which heh and on which the appellants are entitled to a non-suit, save the action alive, and then in the existing action to other counts that he may think fit, or that the Court may form for him. I think it impossible to allow him to retain his o1 counts. With respect to his desire to add other counts an substitute what is practically a new case, I venture to ado words of Bowen LJ. in " The Moorcock" (3), as to the n implied warranties such as that which the respondent wi to be allowed to set up :—" Now, an implied warranty, (1) 58 L.J.Q.B., 519. (2) 17 T.L.R., 299. (3) 14 P.D., 64, at p. 68. OF AUSTRALIA. led, a covenant in law, as distinguished from an express or express warranty, really is in all cases founded on the med intention of the parties, and upon reason. The impli- ution which the law draws from what must obviously have been e intention of the parties, the law draws with the object of fiving efficacy to the transaction and preventing such a failure consideration as cannot have been within the contemplation either side ; and I believe if one were to take all the cases, and ey are many, of implied warranties or covenants in law, it will efound that in all of them the law is raising an implication from the presumed intention of the parties with the object of riving to the transaction such efficacy as both parties must have ntended that at all events it should have. In business trans- ctions such as this, what the law desires to effect by implication to give such business efficacy to the transaction as must have intended at all events by both parties who are business en ; not to impose on one side all the perils of the transaction, r to emancipate one side from all the chances of failure, but to ike each party promise in law as much, at all events, as it must have been in the contemplation of both parties that he should responsible for in respect of those perils or chances." The anties which the respondent wishes to be allowed to set up e founded upon the rules now formulated in sub-secs. (1) and 2) of see. 14 of the English Sales of Goods Act 1893, which is t in force in New South Wales. It was assumed in argument ough I must not be taken to accept the assumption without jualification) that in this respect that Act only declares the common law as stated in the fourth and fifth rules laid down in es v. Just (1). In that case Mellor J. delivering the judgment he Court, consisting of himself, Cockburn C.J. and Blackburn J. article which he manufactures or produces, or in which he deals, be applied to a particular purpose, so that the buyer necessarily 1) LR. 3 Q.B., 197. (2) LR. 3 Q.B., 197, at p. 202, H. C. or A. 1907. Bowpen Bros. & Co. Lrp. v% Littie. Griffith C.J. H.C. or A, 1907. ce Bowpen Bros. & Co. Lrp. Lrrrie. Griffith C.J. HIGH COURT v. Edgington (1); Jones v. Bright (2). In such a ease the bu trusts to the manufacturer or dealer, and relies upon his judg and not upon his own. "Fifthly, where a manufacturer undertakes to supply go manufactured by himself, or in which he deals, but whieh vendor has not had the opportunity of inspecting, it is an impli term in the contract that he-shall supply a merchantable a Laing v. Fidgeon (3). And this doctrine has been held to ap to the sale by the builder of an existing barge, which was but not completely rigged and furnished; there, inasmuch as buyer had only seen it when built, and not during the course | the building, he was considered as having relied on the judgm and skill of the builder that the barge was reasonably fit for u Shepherd v. Pybus" (4). 4 The application of the first of those rules depends upon tl condition that the purchaser did in tact rely upon the judg or skill of the seller. The question whether in a given state: facts it can or ought to be inferred that he did so rely may be o of great difficulty, but it is plain that the facts in any parti case may show that the purchaser did not so rely, or that hi reliance was not absolute but qualified, or had reference to cert particulars of quality only. It cannot be implied, from the m fact of a sale of goods to be shipped abroad, that the vend enters into any warranty except that the goods shall be m chantable. The facts of the particular case may justify implication of warranties of various effect. For instance, circumstances might justify the implication of an absolu warranty that the goods shall be reasonably fit to unde the risks of the particular voyage, or they might justify implication of a warranty that the goods shall apparently be that condition. Other warranties that might be implied from circumstances are that the goods should be such in quality ai condition as a reasonably prudent man, determined to make shipment at that time, would ship on his own behalf, or that t vendors will take reasonable care that the goods when shippé shall be fit for shipment, or that they shall be as fit as is p (1) 2 Man. & G., 279. (3) 4 Camp., 169; 6 Taunt., 108. (2) 5 Bing., 533 (4) 3 Man. & G., 868. J OF AUSTRALIA. le with respect to such goods under the particular circumstances. t which, if any, of these or any other warranties that may be ited, is the one which ought to be implied must depend upon extent to which the buyer is shown by the facts tu have to the judgment and skill of the vendor. The obligation not be put higher than if it had been a contract of agency, as pointed out in Lreland vy. Livingston (1), which was a case 'a contract in many respects analogous to that now in question. : that view want of reasonable care would be the foundation of ie claim. express no opinion as to the proper warranty to be inferred ithe present case, beyond saying that there must of necessity e been some obligation on the part of the shippers, not less an obligation to ship onions merchantable in Japan (which jury found they performed), on to ship onions reasonably fit in fact for the voyage to Sydney. As, therefore, this is not a case in which the plaintiff should ve general leave to amend, and it is not desirable to single out y particular amendment as specially suggested by the evidence, k the most just course will be to direct a nonsuitin the case Tittle v. Bowden Bros. Tn the ease of Bowden Bros. &: Co. v. there should be a new trial, the costs of the first trial being ffs' costs in the cause. and not greater than an obliga- RTON J. I am of the same opinion, I need not analyse 'in the respondent's declaration. It is sufficient to say as to the se of Little v. Bowden Bros., that the first count has been ated all along by the plaintiff as a count for breach of a con- to deliver in Sydney, and so, of course, has the second. is the impression that the respondent has left upon the case omend to end. The contract is what is here known as cif, lin England as ¢.f.i, What such a contract means and implies een already very fully stated. But I would mention the endants 300 tons of old bridge iron rails at so much m, which were, according to the contract, to be delivered at ugh ¢.f.i., payment of net cash in London, less freight ) LR. 5 HLL, 395. (2) 7H. & N,, 574. H. C. or A. 1907. ~ Bowpex Bros, & Co. Lap. v. Lrrree. Griffith O.J. H. C. or A. 1907. —— Bowpen Bros. & Co. Lrp. v Lirtie. Barton J. HIGH COURT upon handing bill of lading and policy of insurance, a doe pany's weight note or captain's signature for weight to be ts by the buyers as a voucher for the quantity shipped. held by the Court of Exchequer, and affirmed by the Exeh Chamber, that according to the true construction of the the defendant did not undertake to deliver the iron at Harboro documents, his liability ceased and the goods were at the the purchasers. 'The next in order of the important cases on point is Zreland v. Livingston (1), which His Honor has a cited. Then comes the case of Wanele v. Wingren (2). the defendant had contracted to sell to the plaintiff certain cf.i, and ship them at a port in Sweden for an English p 'They were to be addressed to the plaintiff at the English p and on arrival he was to adopt the charter-parties and bi lading and to pay the price. The defendant failed to perl the main portion of his contract, and the plaintiff brought action for damages in England and applied for leave to s notice of the writ of summons upon the defendant out of jurisdiction, under Order XI. The question then arose whet the breach had been committed within or without the j tion. It was held that upon the true construction of the con all the defendant had to do was to ship the goods on board Swedish port; accordingly the breach occurred there and the English port, and that, as no cause of action arose with jurisdiction, no leave to serve notice of writ of summons un Order XI. could be granted. That is to say, this case is affirmation of what is stated in the case last cited, that whel the ordinary way goods are to be supplied and entrusted carrier, the carrier is the consignee's agent, and where the cont is c.i.f., and in pursuance of that contract the goods are ent ru to the carrier, and the necessary documents to entitle the chaser to obtain possession of the goods are sent, then the s has performed his part of the contract, and the risk thene is on the buyer. The last cited case rests on the auth Day J. and A. L. Smith J. To the same effect are the ¢ (1) LR. 5 H.L., 395. (2) 58 L.J.Q.B., 519. OF AUSTRALIA. m & Co. v. The Griendtsveen Co. (1),and Parker v. Schuller which need not be quoted at length. Then, in 1889, the same as Wancke v. Wingren (3), came the case of Delawrier &: Co. Wie (4), which was referred to by my learned brother /suacs course of the argument. I intend merely to refer to the nent of Lord Traynev in the Court below, because that ment has practically the assent ofenearly all the Lords of ape , and as to this portion of the case His Lordship said is:—" It (the coal) was sold to the pursuers by Stevenson & Co., jabove mentioned, for a contract price, which included cost, ight, and insurance, and was shipped by Stevenson & Co. on wd the 'George Moore' at Troon. The defenders maintain at under a contract c.i-f. the shipping of the goods is not delivery e buyer; that such a contract imports an obligation on the to deliver at the port of discharge; that no delivery takes ee till that port is reached ; and that, consequently, there had n no delivery to the pursuers of the coal in question." (Thatis tically the contention set up on behalf of the plaintiff Little this case). His Lordship continued : " It is not open to question it in the ordinary case of goods shipped by a seller to a buyer distance, delivery on board ship as for the buyer, along with indorsation and delivery of the bill of lading to the buyer, is , vesting him with the property of the goods and all risk ching thereto" (that is where the bill of lading is indorsed). But the defenders maintain that a contract for the sale of ods c.i.f. imports an obligation to deliver at the port of discharge, d that 'where the bargain is to deliver the commodity at a ticular place, the risk is with the seller till delivery at that lace, so that if it perish on the voyage it is lost to the seller. I of opinion that the defenders are wrong in their view of the struction and effect of a contract c.i.f., and they have cited no y in support of it. It appears to me that a contract of if. is a contract under which the seller undertakes certain tions which would not be incumbent upon him otherwise, 'that these additional obligations have no reference to the (1) 6 T.L.R., 274. (4) 17 Court of Sess, Cas., 167, at i pp. 172, 173, 174. H.C. or A. 1907. a Bowpen Bros, & Co. Lap. v Littce. Barton J. H.C. of A. 4907. cones BowDEN Bros. & Co. Lr. v. Litre. Barton J. HIGH COURT EE question of delivery. The additional obligations underts . the seller are that—(1) He will, in respect of the contract insure the goods for the voyage free of any further char premium ; and (2) that he will pay for the carriage of the to their destination. As, however, these additional oblig make no reference to the delivery of the goods, I thin question as to what delivery is sufficient to free the se risk, and where such delivery is held to be made, are not aff by these additional obligatioris, but are to be decided accordir the ordinary rules of law applicable thereto. In short, a tract c.i.f. is not to be read as importing any obligation or which it does not express. Such a contract binds the selle pay something which otherwise would fall on the buyer; except in so far as it shifts the obligation to pay, it rem a contract of sale, subject to the ordinary rules of law regulate the rights and obligations to which that contract g rise. It was said that the view submitted by the defenders the effect and import of a contract cif. was that which m distinguished it from a contract f.o.b. These contracts doubt different and distinguishable. The contract f.0.b. di stipulates for delivery at a certain place, namely, on board and delivery there (free of charge to the buyer) is fulfilment the seller's obligation. But granting that, the defenders are further forward ; for it still remains that the contract c.f. de not stipulate for delivery at a certain place. If the defend had averred that by the custom of merchants a contract ¢ meant, and was universally recognized as meaning, a contr under which the seller bound himself to deliver at the port which the goods were consigned, that would have been a diffe matter. But no such custom is averred. Mere delivery of coal on board the 'George Moore' might not perhaps have be sufficient to transfer the property and risk thereon to the u suers, seeing that the bill of lading is taken 'to order' and Stevenson & Co. indorsed and despatched by post the lading for the coal in question to the pursuers within twelv hours or so after the vessel sailed, and debited the pursuers OF AUSTRALIA. ir books with the contract price. The letter containing the lof lading was received by the pursuers in due course. In e circumstances, I entertain no doubt that the property in coal was transferred to the pursuers at latest when the dorsed bill of lading was posted." The question in the present e is, where was the risk ? Now in the case of Stréms Bruks Aktie Bolag v. Hutchison |), Lord Davey gave his opinion as to the meaning of a e.i.f. t which has been cited by His Honor in the preceding nent. There was, however, before that, in 1897, the case Tecky & Oo. Ltd. v. Ogilvy, Gillanders & Co. (2) which is a decision of the Court of Appeal. In the headnote of that eit is stated that under a c.f.i. contract of sale there is an olute duty on the vendor to procure the shipment of the goods such a bill of lading as will, subject to the exceptions contained, ensure their delivery at the port of destination ntioned in the contract. A c.i.f. contract provided for the sale of ods by the defendants to the plaintiffs, shipment to be from leutta to Tripoli. In that case a controversy had arisen ont of fact that there were two places called Tripoli, and the question ose whether the directions that the vendors had given did not ead the carriers of the goods so that they brought about a livery at the wrong Tripoli. In dealing with the meaning of the contract A. L. Smith LJ. said (3):—* The obligation of the fendants at Caleutta under the contract, which they had entered 0 with the plaintiffs, was to put the bags on board ship at Heutta with such proper shipping documents as would ensure the 8 getting to Tunis. If that was done, the defendants had per- ned their part of the contract." And Collins L.J. in delivering meurring judgment said (4):—< The defendants, by their con- et with the plaintiffs, were under an obligation to put the goods rd ship with such shipping documents as would ensure the s being carried to the place mentioned in the contract, that is, in Africa." Then he goes on to describe what happened iter with which we are now concerned. The judgments +515, (3) 3. Com. Cas., 29, at p. 33. 29, (4) 3. Com. Cas., 29, at p. 37. H.C. or A. 1907. —— Bowpen Bros. & Co. Lap. v. Litre. Barton J. H.C. or A. 1907. es Bowpbren Bros. & Co. Lrp. Lr Barton J. HIGH COURT in these cases seem to me to show conclusively that under tract of this kind the risk is on the buyer, when the entrusted to the shipowners for transit, when they are pl board by the vendor, and that the vendor does his part the ordinary course would ensure the delivery of the goods buyer. So much appears to have been done in this ease, It to me, therefore, that the risk of the goods, if they answe contract in other respects, was with Mr. Little upon their ship at the port in Japan, Kobe. Then the remaining question as to this part of the case is, "Japan onions." It is obvious from the circumstances of the that they were to be that season's onions; that they could anything else. And the question arises, inasmuch as the coi was not to deliver in Sydney, was there in terms of eithe the counts of the declaration any breach of any stipulation the character or quality of the goods? I am unable to see the proofs in this case support the plaintiff's declaration, a1 am speaking now of the case purely in its aspect as it co before us. Of course, if this case goes before a jury agai whole complexion of the case may be altered, so that no that may be said now must be taken to prejudice any righ either party, or to throw any obstacle in his way whe comes to assert his rights in future proceedings. But in case, as the first count, and in fact the second, have been as counts for delivery in Sydney, and inasmuch as the was not for delivery in Sydney but in Japan, the plainti not proved the contract relied on in his declaration, treated this as a contract with different incidents from # which the law attaches to it, where there are no controllin cumstances either in the contract itself or appearing f admissible evidence aliwnde. I am with His Honor the Chief Justice in thinking that, w some warranty must be presumed in this case, the matter is before us in such a shape that we ought at this stage to st what the warranty is. He has stated it at its maximum 1 its minimum. I think that some warranty must be p OF AUSTRALIA. he condition of the goods, and it does seem to me to be a able thing that the warranty would be that the goods were, wr as the vendors could reasonably procure such a result, of a ty that rendered them merchantable at the point where the s taken by the buyer. I do not express that as an opinion t would control the case in the event of its going down for a trial. The fact that it may do so is sufficient warrant for nch not being too specifie in reading a meaning into, or constructions upon, the case as it has come to us, because complexion may vary in future proceedings. If a warranty that kind is the warranty to be implied from this contract, nit seems that the plaintiff has not proved specifically any ach of it, any more than he has proved any breach of the exacting warranty that possibly might be presumed from contract. Thus again it séems to me that he fails in his proof far. He has not proved the contract he set out, as regards bligation to deliver and as to the risk ; nor has he proved it as regards the quality and condition of the goods or the int at which that quality and condition should be determined. erefore think that upon the mere general issue of non mpsit the plaintiff niust fail in this case. \s to the amendment, it seems to me that he cannot at this with any show of justice be allowed to displace the whole the pleadings and the ease that he has set up, and enter upon holly new case instead of the old one by way of amendment. I ly think that in any case that would be within one's ordinary ion of an amendment. At any rate he is not prepared to forego e two counts upon which his proof has obviously failed, in order substitute something for the counts as to which he has failed, o vary them, but wishes to keep them and to add something in ion. In other words he wants to eat his cake and have it, to his two counts and add two others founded upon expressions have fallen from the bench during argument. I agree with onor that that ought not to be done. The juster way to him a larger option as to the way in which he should pe his case in future; and, as regards costs following upon result, I do not think that on the whole he is in a H. C. or A. 1907. BowbEn Bros. & Co. Lrp. v. Livre. Barton J. H. C. oF A. 1907. —— Bowpen Bros. & Co. Lrp. v Lirtie. Barton J. HIGH COURT much worse position than if the amendment were made, thus left at liberty to shape his case as he pleases eithe the facts as they have already come out, or upon any ni which may cause him to vary his opinion, and, therefore, that the treatment by way of nonsuit is the fairest and mo way to meet the case. But it would not be fair upon thi before us, notwithstanding our opinion as to the action of v. Bowden Bros., to enter up judgment for the plai Bowden Bros. & Co. v. Little, on this evidence, for the ba the price, but, inasmuch as it will be at the respondent's o whether he brings his case on for a second trial or not, the way, I think, is to order a new trial of the action, Bowden & Co. v. Little, and then upon the parties electing to fig their battle again they would be placed in a position in their rights can be most fairly ascertained. I agree, therefore, that there should be a nonsuit in case and a new trial in the other. Isaacs J. The contract, which is in writing and dated June 1905, is between R. Little & Co., described as of Suss Sydney, and Bowden Bros. Ltd., deseribed as of Kobe, Ji The goods are stated to be 450 tons of Japan onions as folloy 100 tons at £7, 350 tons at £6 15s., subject to a broker necessary of 1/. The prices are stated as "cif." Sydney. — shipments were to be 100 tons in June, 225 tons by the " tralian" and " Waldemar," and 125 by the " Empire" and "$ mund." 'The insurance was to be as usual and the finan both parties. The onions arrived in Sydney in a very b dition. Little sued Bowden Bros. for damages. The de set out the promise variously, the first count alleging a that the onions should be delivered in merchantable ¢ the second count alleging the promise to be that upon th at Sydney the onions would be in merchantable condition ¢& for necessary and inevitable deterioration, the result of the tre It was alleged that both these promises were broken. Th OF AUSTRALIA. 1389 hird count, which may be laid aside as immaterial in view of H. ©. or A. , course the casehas taken. The defendants denied the promise iG e breach. There was a cross action by Bowden Bros. pownen Little for the price of the onions, which Little refused to hemes +; his defence to this action being practically his allegations aii ,own action. At the trial the pleadings were not strictly to. Mr. Campbell in opening the case for Little stated if the obligation of the defendants was to deliver at Kobe, efendants were to deliver at Kobe onions fit for voyage to y under ordinary conditions." The jury was asked to special findings, which they did. [His Honor then read ial findings in answer to the first four questions and tinued :] The other answers may be regarded as immaterial. ry returned a verdict for Little in both actions, finding s in his own action at £3,729 15s. 10d.; they added the ing :—The jury find for the plaintiff in this action in accord- : with your Honor's ruling as to the construction of the c.i.f. act and award damages to the amount of £3,729 15s. 10d." Honor the presiding Judge directed the jury that Bowden were bound to deliver to the plaintiff Little merchantable ions in Sydney, except for such necessary and inevitable ion as would occur on the voyage. A rule nisi for a was applied for to the Full Court on various grounds, the Full Court, though granting a rule wisi, declined to certain grounds, including one to the effect that the already mentioned was wrong. The appeal in this case led as one of the grounds that the direction was erroneous. my opinion that direction, having regard to the whole of evidence, cannot be sustained. It was given upon what was erstood to be the effect of Lorimer v. Slade (1). That case perhaps considered to turn on its special circumstances, 'it decides broadly that a c.i.f.'contract requires the seller liver at the port of destination, it cannot be supported. A tact c.i.f. is well known, and its effect has been described by J. in the case of Ireland v. Livingston (2) in the ted by the learned Chief Justice. It is plain from the nt of the law by that very learned Judge, whose opinions 6) 58.R. (N.S.W.), 71. (2) LR. 5 H.L., 395, at p. 406. Isaacs J. H.C. oF A. 1907. = Bowprn Bros. & Co, Lrp. v Lirtte. Isaacs J. HIGH COURT upon such a subject are entitled to especial weight, vendor's part is performed by shipping the goods in confor with the contract, first insuring them and procuring the bi lading and pelicy of insurance, and then promptly despate these to the purchaser. In 1889 the case of Delawrier & C Wyllie (1) was decided by the Scottish Court of Session up case submitted to an opinion of the Judges of the whole The plaintiffs, who were French merchants, had purchased Stevenson & Co., of Glasgow, 1,000 tons of Ayrshire coal Rochefort." Stevenson & Co. shipped the coal on defenda ship and insured it, the ship was lost with her cargo, action was brought against the shipowner on the ground that loss was through the fault of the master or other servant defendant. It became necessary to determine the meaning effect of a cif. contract. There were thirteen Judges, it was held by the Court, dissentiente Lord Young, th coals became the plaintiff's property on shipment or endo of the bill of lading, as the seller's obligation to pay ins and freight did not imply a suspension of delivery till the arrival, and the plaintiffs therefore had a title to sue. The came originally before the Lord Ordinary (7''rayner) who m decree against the defendant. The important passage from Lordship's judgment read by my brother Barton indicates great clearness the meaning and effect of a contract cif. argument before the Full Court of Session the di Blackburn J.in Ireland vy. Livingston (2) was referred the following passage from the judgment of Lord Wel states tersely the view taken by the majority of the the question :—" The meaning and effect of the expression simply is that the sellers undertake to insure for the pi and include in the invoice price the cost of the cargo, the it ance premium, and the full freight. From this they ded the amount of the freight to be paid at the port of di and draw for the balance upon the consignee. In sub therefore, as Lord Blackburn says in Ireland vy. Livingst (1) 17 Ct, of Sess. Cas., 167. (4) LR, 2 QB, 99, and L. H.L., 395. (3) WC. of Sess. Cas., 167, at p. 189. .L.B.] OF AUSTRALIA. mught and shipped to him in the ordinary way." Lord Shand !) says expressly that Rochefort was not the place of delivery the contract. Lord Lee (2) said "In this case Messrs. venson & Co. were the sellers of the coals, and I agree h the Lord Ordinary that the contract between them and the uers did not require that in order to transfer the risk to the mers the coals should be delivered at Rochefort. I think hat the case was one in which Stevenson & Co. did all that incumbent on them by arranging for the carriage of the nsuring them, and undertaking to pay the freight. The risk is with the buyer after such shipment, unless there had been a undertaking to deliver at Rochefort, implying that the was to remain with the seller until delivery at the place ated." The concluding words of the contract are of nportance in connection with the first finding of the jury. As ady pointed out, the same view has been put shortly by Lord ey in Stroms Bruks Aktie Bolag v. Hutchison (3). It there- e seems clear that the sellers in this case did not agree to iver in Sydney but at Kobe, and the only question is whether goods they shipped at Kobe as in pursuance of the contract of the proper description. The goods being described as uld be of merchantable quality. The jury have found that hey were of merchantable quality as understood in Japan; but e purchaser contends that, besides the condition of merchant- bility, the sellers were bound to put on board onions reasonably it for the voyage from Kobe to Sydney under ordinary condi- s. There has been no finding of fact that the purchaser made nown to the seller the particular purpose for which the goods e required, so as to show that the buyer relied upon the ers' skill or judgment. It was urged, however, on behalf of purchaser that the mere fact that the contract stated that the ms were to be shipped to Sydney, and that the sellers knew the onions were to be shipped to Sydney, was sufficient to (1) 17 Ct. of Sess. Cas., 167, at p. 180. (2) 17Ct. of Sess. Cas., 167, at p. 198. : (3) (1905) A.C., 515, at p. 528. he 'consignee pays the same price as if the goods had been H. ©. oF A. 1907. os BowpEN Bros. & Co. H.C. or A. 1907. Bowprn Bros. & Co. Leb. Lirtie. Isaacs J. HIGH COURT establish in law the further implied condition that the 8 should be reasonably fit for the purpose of the voyage so a { arrive in Sydney in merchantable condition, except for t necessary and inevitable deterioration caused by the voyage. | the trial, and in the argument before this Court, it was put | behalf of the purchaser that the implied condition refer necessarily arose as a matter of law. In my judgment that is not a sound position. The mere f that in the written document itself the fact and dates of shij are referred to does not conclude the matter, because that common to all c.i.f. contracts, and, unless such an implied cond exists in every contract of the character, the position contend for cannot be maintained. But that cannot be the ease, held by the Court of Appeal to be the same as the common Frost v. Aylesbury Dairy Co. (1), and it is the common law wh still exists in this State. The suggested implied condition | reasonable fitness for the purpose must arise, if at all, on fac showing that the purchaser not only made known to the s the particular purpose for which the onions were required, also did this so as to show he was relying on the seller's skill judgment. That this is a question of fact appears from sever cases: Gillespie Bros. &: Co. v. Cheney, Eggar & Oo. (2); Frost Aylesbury Dairy Co. (1). In that case Collins MLR. said (3): "We arrive then at this result, that milk was supplied fo purpose known to the seller under circumstances which s that the buyer relied on the seller's skill or knowledge," &c. Wallis v. Russell (4), the Irish Court of Appeal dealt with question exhaustively. Walker LJ. said (5):—*The buyer made known to the seller the purpose for which the goods required, viz., for eating, and she has, as found by the jury, that known in a manner that showed that she relied on the se skill and judgment, and not on her own." Holmes LJ. said —See. 14, sub-see. 1, enacts that this implication will arise the buyer directs the attention of the seller to the purpose (1) 1905) 1 K.B., 608. (4) (1902) 2 LR., 585. (2) (1896) 2 Q.B., 59. (5) (1902) 2 LR., 585, at p. 627. (3) (1905) 1 K-B., 608, at p. 612. (6) (1902) 2 L.R., 585, at p. 635. OF AUSTRALIA. the goods are required in such a way as to convey that he is on the seller's skill and judgment to select a suitable The quotation by Fitzgibbon LJ. from Brown v. gton (1), and by Walker LJ. from Bigge v. Parkinson | support the same position. It is, therefore, plain that the re fact that the seller knows the purpose without more will tof itself raise the implication. Looking at the facts in this se to see whether they are such as would entitle the purchaser direction that he relied on the sellers' skill and judgment to lect onions fit for the voyage, I am clear that on the evidence 0 such direction could be given. The facts are certainly open to re being, however, so far no finding in plaintiff's favor of the sé essential to raise the implied condition of reasonable fitness, id the evidence not entitling him to a direction, it follows that he verdict cannot be sustained, and the appeal must therefore be nnot be taken as amounting to an agreement by the sellers that y would bear the risk of transit, or, in other words, warrant chantable condition of the goods on arrival at Sydney. No liance was placed on this finding during the argument, nor, in in both actions or whether a nonsuit should be entered e's action, and judgment for the plaintiffs in the cross- Strictly speaking, and in the absence of amendment, the rs are entitled to judgment, and the purchaser cannot com- of a mistrial on the ground that by a mischance or other iage for which he is not responsible the necessary facts not found. He never asked for or intended that the facts eadings do not raise the issue, and even the extended form 'Man, & G., 279. (2) TH. &N,, 955. (3) (1897) A.C., 68. H.C. or A. 1907. — Bowpen Bros. & Co, Lr. v. Lire. Isaacs J. H.C. or A. 1907. pubiee Bowbes Bros. & Co. Lrp. v. Litre. Isaacs J. HIGH COURT in which the case was treated at the trial did not inch question of fact whether the purchaser relied on the selle and judgment. To send the case down for trial again present pleadings, the defendants being under no oblig travel beyond the issues as appearing on the records, futile; it would be only visiting the plaintiff with expense and exposing him to certain defeat. The Court of the plaintiff an amendment so as to raise the necessary j provided he struck out the allegation as to delivery in Sy which the Court considered untenable. This was refus plaintiff insisting on retaining his allegation of a contract delivery in Sydney. ' The Court must therefore deal with the matter as it sta On that basis I agree to the order as proposed by the © Justice. Appeal allowed. Order appealed f discharged. Verdict in respond action set aside and nonsuit en with costs, including the costs motion for a rule nisi in the & Court. Verdict in the action set aside and a new ordered, the costs in that action to the plaintiffs' costs in the cwuse. Solicitors, for the appellants, Sly & Russell. Solicitors, for the respondent, J. S. Thom, Bros. & Co. OAM