Tallerman and Co Pty Ltd v Nathan's Merchandise (Vic) Pty Ltd [1957] HCA 10

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are,

[HIGH COURT OF AUSTRALIA.]

TALLERMAN AND COMPANY PROPRIE BIWAU RAY ges] SUVICTUIV END) es é ' i : PLAINTIFF,

\ APPELLANT;

AND

NATHAN'S MERCHANDISE (VICTORIA) PRO-\ p.. PRIBTARY LIMITED icy eee DEFENDANT,

ON APPEAL FROM THE SUPREME COURT OF NEW SOUTH WALES.

Contract—Original agreement—Subsequent agreement—Same parties—Same subject H.C. or A. matter—Barlier contract—Abrogation—Particular provisions—Particular term— 1956-1957. " Rescission" —" Variation" —Bffect—Performance in manner not originally =~ approved—« Without prejudice" —* Accord "— Satisfaction "—Completion of 1956, contract—Where made—When made—Contract made outside State—Jurisdiction SYDNEY, of State court—Implied rescission—Parties—Intention. Aug. 7, 8;

It appeared that the plaintiff and the defendant entered into written 1957, contracts for the sale of goods and that those contracts were made in Victoria. Mnrnovrwr, Some of the goods were delivered and accepted but the defendant sent back a Feb. 18. shipment comprising the greater part. 'There was evidence of a parol agree-

Dixon €.J., ment with respect to terms of delivery and the defendant relied on this in Willia

sending the goods back. In subsequent correspondence between the parties xinT} the defendant in a letter headed "without prejudice" made a fresh Taylor J¥. proposal about conditions for delivery of the balance of the goods. 'The plaintiff rejected the proposal and suggested alternatives; the defendant replied rejecting the alternatives and added that it was not prepared to vary its former proposal. After a lapse of two months the plaintiff in a letter posted in New South Wales to.the defendant in Victoria also headed " without prejudice " wrote that it accepted the proposal. A month later the defendant wrote in terms which made plain that it was not prepared to carry out the terms suggested in its former proposal. A writ was issued out of the Supreme Court of New South Wales, indorsed with a declaration containing counts to recover the price of the goods, or alternatively to recover damages for breach