Handbury v Nolan

(1977) 13 ALR 339

---

(Judgment by: Barwick CJ) Court:

Judges:
Barwick CJGibbs
Stephen
Jacobs
Aickin JJ

Subject References:
Appeal
Contract
Terms
Partly oral
Partly written
Meaning of
Question of fact
Trial judge
Determination in light of circumstances of case
Whether meaning open to trial judge
Auction
Cattle
Description
Cattle "to be pregnancy tested prior to sale"
Oral statement
Auctioneer
Result of pregnancy test positive
Whether term that cow pregnant at time of sale
Partly in writing
Construction
Question of fact for jury
Cattle auction
Positive pregnancy test

Hearing date: 24, 25 February 1977 -- Melbourne
Judgment date: 15 March 1977

Sydney

---

Judgment by:
Barwick CJ

Did the plaintiffs for $3200 buy a cow in calf or merely the chance that she was in calf? That is the question raised by this appeal. The primary judge held that it was an express term of the contract of purchase that the cow, carrying the name "The Glen Nola", was pregnant. The Full Court of the Supreme Court of Victoria decided otherwise.

The facts on which what, in my opinion, was a question of fact, fell to be decided were few and simple.

The Glen Nola appeared in the catalogue of Murray Grey cattle for sale at the Fourth Annual Murray Grey Breeders' Sale to be held at Wodonga in the State of Victoria on 9 April 1970, as follows:--

Lot 8

THE GLEN NOLA (726A)

Born: 1962 Brand: 239A

SIRE and DAM: Gadd Foundation Stock

Depastured with The Glen Hector (85) -- refer Lot 5 -- from mid-October '69 to January '70. To be pregnancy tested prior to sale.

A daughter of this cow being offered as Lot 5.

Between the date of the issue of the catalogue and the date of the auction, the cow was physically examined by a veterinarian who certified that she had been tested for brucellosis and tuberculosis and examined for pregnancy and that she gave a negative reaction to the tests and was pregnant on the day of testing.

However, the auctioneer did not read the veterinarian's report at the auction but he announced that the cow had been pregnancy tested and that the result was positive.

It appeared from the evidence that the intending buyers were notified by the auctioneers that:--

...

6. A condition of entry is that all cattle are to be T.B. tested within 21 days prior to sale and vendors should have certificates to this effect available at the sale.

7. Vendors have been recommended to pregnancy test sale females where applicable and results not already shown in the catalogue will be announced at the sale.

It also appeared that it was not a common practice of buyers to test cows for pregnancy. But, otherwise, there was no evidence of custom at a breeders' auction sale of breeding cattle. This may be because, as I understand the matter, although the terms of the sale were put in issue by the pleadings, the defence actually litigated before the primary judge was that the cow was in fact pregnant at the time of the sale and that her subsequent condition was due to supervening events.

Although the catalogue and terms of sale were in writing, the contract of sale and purchase, through the bidding at the auction, was oral, incorporating no doubt the terms of the catalogue and of the auction. The matter, in my opinion, is not to be resolved, as it were, by construction of written documents, but as a matter of fact, ie what in substance was the subject matter of the sale and purchase.

In resolving that question, there are the following elements, none of which in itself is definitive but all of which in combination, in my opinion, support the conclusion that the plaintiffs bought and the defendant-respondent sold a cow in calf and that the plaintiffs did not merely venture the purchase price of $3200 on the chance that she was pregnant.

This was a breeders' sale. Both seller and buyer were interested in breeding stock, the seller in the price likely to be paid for such and the buyer in the progeny of a particular bull, ie a bull of known lineage. The cow was listed as having been depastured with a bull "The Glen Hector" from mid October 1969 to January 1970. Particular attention was drawn in the catalogue to the fact that "a daughter of this cow being offered as Lot 5": a like reference was made under Lot 5 to the fact that The Glen Nola was being offered at the auction as Lot 8. It may be that these notations in themselves do no more than emphasize the breeding purposes of the buyers, but possibly they do indicate the central importance of the cow being fertile and in calf: and in calf to the named bull which was the sire of Lot 5.

Then the catalogue announced that the cow was to be pregnancy tested prior to sale. It is clear that it was intended that, before bidding commenced, the result of the pregnancy test would be announced. The notice to buyers, in recording the recommendation to vendors, makes that certain. Further, the statement that the cattle being offered would be tested for brucellosis and tuberculosis would seem to indicate that it was cattle in fact free of these diseases which were the subject of the sale.

It is not suggested that the price paid for this cow was other than an appropriate price for such a cow in calf. The agreed value of the cow at the date of trial was only $160, but that figure was no doubt influenced by the fact that at that time it had been ascertained, not merely that the cow had not been in calf, but also that she was sterile.

Although perhaps not too much can be taken from it, the fact is that the defendant-respondent, in response to the plaintiffs' claim, maintained that the cow was pregnant at the time of sale.

The auctioneer announced the result of the pregnancy test as positive. I can see no difference between that statement in the circumstances and the statement of the veterinarian in the certificate that the cow was pregnant.

In my opinion, on all this material it was open to the primary judge to find that it was a pregnant cow which was the subject matter of the sale and purchase. It must be conceded that the view taken by the Full court is a possible view of the transaction. But to entertain that view is not to deny the possibility of the view taken by the trial judge or to establish that he was wrong to take it. For my part, I think that, while possible, it is unlikely that buyers at such a sale merely gamble at high prices on the possibility of pregnancy, a possibility, enhanced by the result of the pregnancy test. It may be granted that such tests are not infallible: but a definite statement that a test was positive seems to me to indicate reliance by breeders on the general reliability of the test and acceptance of its result as indicative of the fact. I would prefer the view of the trial judge to that of the Full Court but, in any case, see no reason to disturb the trial judge's finding that, in point of fact, the parties were bargaining about a cow in calf and not merely about the chance that she was in calf.

Consequently, I would allow the appeal.