Handbury v Nolan

(1977) 13 ALR 339

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(Judgment by: Jacobs J) Court:

Judges: Barwick CJ
Gibbs
Stephen

JacobsAickin 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

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Judgment by:
Jacobs J

The appellants sued the respondent in the County Court at Melbourne claiming damages for breach of a contract for the sale of a Murray Grey cow named The Glen Nola. This cow was offered for sale at auction on 9 April 1970 at the Fourth Annual Murray Grey Breeders' Sale held at the Wodonga Saleyards. The appellants' bid of $3200 was accepted, this sum was paid, and the appellants took delivery. By the statement of claim it was alleged that there were terms of the agreement that the cow was fertile and was capable of bearing calves and, further, that she was in fact pregnant at the time of sale. It alleged breach of these terms and claimed damages. The defence put in issue the terms of the contract and denied breach. The principal case made by the respondent was that the cow had indeed been pregnant at the date of the sale and must have subsequently aborted. On this issue the learned County Court judge found against the respondent.

Judge Hewitt found that there was a term of the agreement by way of express condition that the cow was in fact pregnant at the time of the sale. Having found that there was a breach of this condition he awarded damages in the sum of $3580. The respondent appealed to the Full Court of the Supreme Court of Victoria which allowed the appeal.

The cow, The Glen Nola, was lot 8 in the catalogue of the Fourth Annual Murray Grey Breeders' Sale and the entry in respect of that lot was as follows:--

THE GLEN NOLA (726A)

Born: 1962 Colour: Silver 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.

The catalogue contained preliminary matter, to some of which it is necessary to refer. In the conditions of sale, cl 4 provided:--

4. As all Lots are available for inspection prior to commencement of the sale the stock are to be sold with all faults if any and all conditions and warranties which might but for this clause be implied by law are hereby expressly negatived. The Auctioneers are not liable in respect of any error, mis-description or omission in any particulars appearing or stated regarding the description or pedigree of any stock offered for sale, and no such error, mis-description or omission shall entitle the buyer to annul the sale, or reject the stock or claim any compensation, damage or abatement in price.

Following the conditions, there was what was described as an " IMPORTANT NOTICE TO BUYERS ". Paragraphs 6 and 7 of this notice provided as follows:--

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.

The Glen Nola was examined by a veterinary surgeon, Donald Andrew Tynan, who gave a certificate to the respondent vendor as follows:--

To Whom it May Concern

This is to state that on 2nd April 1970 account

D. J. Nolan Lindawarra Cookardinia

the undermentioned cattle were tested for Brucellosis & Tuberculosis and examined for Pregnancy

Lot 8 Brand 239A

Lot 10 (L)A2

Lot 15 (L)A5

All gave a negative reaction to the test for C.Ab. & Tuberculosis and were pregnant on the day of testing.

At the auction sale, the auctioneer did not read this certificate but announced that the result of the pregnancy test was positive.

In the Full Court it was held that there was no term of the agreement, express or implied, that the cow was in fact pregnant at the time of sale. It was held that to say that a cow has been pregnancy tested prior to sale and that the test was positive is to say something different from saying that the cow is in calf. It was also held that there was no term that she was fertile and was capable of bearing calves.

In my opinion Judge Hewitt was correct in his conclusion that there was an express condition of the sale that the purchased cow was pregnant. The express condition arises from the words in the catalogue "To be pregnancy tested prior to the sale" and the oral announcement by the auctioneer at the sale that the pregnancy test was positive. The meaning which the parties to the contract intended by the oral statement at the auction that the pregnancy test was positive was a question of fact for the trial judge, to be determined in the light of all the circumstances of the case: Deane v City Bank of Sydney (1905) 2 CLR 198 . It is clear from the nature of the sale and from the terms of the catalogue that what were being sold were breeding animals. It requires no special evidence to state that a cow which has been depastured with a special quality bull for some months and which is pregnant to that bull is a far more valuable lot than one which is not expected and likely to bear from such stock and which, moreover, is not known to be fertile. It would be unlikely that such an animal thought by the proposing vendor to be pregnant but found before the sale not to be pregnant would nevertheless be offered for sale.

The next circumstance is that the parties did not understand by the announcement of a positive result to a pregnancy test that a chemical test had been made and had given a positive result. The language used, that a pregnancy test was positive, is language taken from scientific testing of pregnancy by chemical analysis and is hardly appropriate to a mere opinion based on physical examination; but a scientific chemical test is apparently not what was meant. It appears that the only "test" which had been carried out when the "positive" result was announced at the auction was the physical examination by the veterinary surgeon and the expression of an opinion, which was wrong, that the cow was pregnant.

It was necessary for the trial judge to determine whether what the parties understood by the words used was that the cow had been examined and an opinion expressed that she was pregnant or that the cow had been examined and the examination had disclosed that the cow was pregnant. This was the area of disagreement between the parties. It was not claimed that the term or condition of the contract was that the cow had been examined and was pregnant at the date of the examination, not the date of sale as pleaded. If this point had been taken it could have been cured by a simple amendment. On the facts it was immaterial whether the condition related to the date of examination or "test" or to the date of sale.

The learned County Court judge determined that the oral announcement meant that the cow had been examined and was pregnant. In my opinion it was open to him so to find and he was correct in so finding. It appears to me highly unlikely that the parties intended no more than that the cow had been examined by a person unnamed and that an opinion had been expressed by that person that the cow was pregnant. When the nature of the test is no more than the expression of an opinion by a person who is not named and who may be more or less qualified, it appears to me that it is a highly likely and certainly open construction to give to the words the meaning that a test would be carried out to ensure that the cow was pregnant and that the cow had been tested and was in fact pregnant. The words should not be read down to mean merely "the cow has been examined and an opinion has been expressed that she is pregnant."

Some reliance was placed by the respondent on the language used in respect of other lots in the catalogue. Of lots 23 and 24 the words "pregnancy tested in calf" are used. Others are stated to be "pregnancy tested in calf" to particular bulls. Lot 175 is stated to be "pregnancy tested in calf on 4/2/70". It appears to me that these entries, far from supporting the meaning which the respondent seeks to place on the words presently in question, are strongly against that meaning. "Pregnancy tested in calf" must mean "pregnancy tested and found to be in calf", not "pregnancy tested and believed by the tester to be in calf". It would be extraordinary if there were a condition in respect of those cows tested previously to preparation of the catalogue that they were in calf but in respect of those tested after preparation of the catalogue and prior to sale, with result announced at the sale, there should be no such condition.

I am therefore of the opinion that by a combination of the language of the catalogue and the announcement at the auction, there was an express term of the agreement that The Glen Nola was in fact pregnant. No point having been taken at the trial that the relevant time was that of the test, and no suggestion having been made in the announcement or afterwards that the cow had aborted after the test, the relevant time was the time of the sale.

Then the respondent seeks to rely on Condition 4 of the Conditions of Sale. Counsel for the respondent submitted that Condition 4 should be divided into four disparate conditions so that, although only implied conditions were negatived, nevertheless an express condition that the cow was in calf was an error or misdescription "in particulars appearing or stated regarding description or pedigree" and therefore fell within the concluding words of Condition 4. In my opinion the condition must be read as a whole. Express conditions are not excluded. The words "description or pedigree" refer to the particulars appearing or stated regarding the animal which are not express conditions of the contract of sale. The statement that the animal will be pregnancy tested prior to sale and the announcement of a positive result of the test is not a particular regarding its description or pedigree but is an express condition of the sale. Condition 4 therefore does not assist the respondent.

Judge Hewitt was therefore, in my view, correct in his conclusion and his decision should be restored. I would allow the appeal, set aside the verdict for the defendant, and restore the verdict in the County Court.