Bacon v Purcell [1916] UKPCHCA 2

OF AUSTRALIA. 307

[PRIVY COUNCIL]

APPELLANT ;

AND

CELL. - 7 - ' ; . REsPonDENT.

ON APPEAL FROM THE HIGH COURT OF AUSTRALIA.

jale of cattle—Delivery—Time for delivery—Principal and agent— Authority of agent to vary contract—Severability of contract—Sale of Goods Act Couxct...* 1896 (Qd.) (60 Vict. No. 6), sec. 14 (3). 1916.

By an agreement in writing the plaintiff agreed to sell, and O. as agent for 'the defendant agreed to purchase, " the following stock, viz. :—About 1,500 _ mixed cattle (more or less) now depasturing on Lake Dunn with 100 branded cattle and all unbranded cattle given in price £2 per head delivery on or before 26th April 1912 on terms £500 deposit to credit" of plaintiff " balance cash on delivery of stock also about 700 mixed cattle (more or less) now depasturing on Ballyneety being the whole of the herd with all unbranded cattle given in price £2 15s. per head. Delivery and conditions of sale same as above." _ Lake Dunn and Ballyneety were adjoining pastoral properties, one being enclosed and the other unenclosed. It was afterwards mutually agreed in writing that 26th April should be the date of delivery of both lots of cattle and the same place was agreed to for delivery of both. Before 26th April it _ was arranged between the plaintiff and O., who was the defendant's agent to take delivery, that the collection of the Lake Dunn eattle for delivery should stand over until completion of delivery of the Ballyneety cattle. The Ballyneety ~ eattle were delivered to O. as agent for the defendant on 26th April. The _ defendant refused to take delivery of the Lake Dunn cattle. In an action by the plaintiff against the defendant to recover damages for refusal to take delivery of the Lake Dunn cattle, the jury found a verdict for the plaintiff.

Held, on the evidence, that O. had authority to vary the written contract _ by substituting a later date for delivery of the cattle than that specified by the contract, and therefore that the plaintiff was entitled to retain his verdict.