Minister for Supply and Development v. Servicemen's Co-Operative Joinery Manufacturers Ltd.

(1951) 82 CLR 621

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(Judgment by: WEBB J.)

Between: Minister for Supply and Development
And: Servicemen's Co-Operative Joinery Manufacturers Ltd

Court:

Judges: Latham CJ
Williams J
Webb J

Subject References:
Sale of Goods

Hearing date: Melbourne, March 6-8 1951
Judgment date: 26 April 1951

SYDNEY

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Judgment by:
WEBB J.

WEBB J. I agree with the reasons for judgment of the Chief Justice and Williams J., except that I can see nothing in the agreement for sale that enables the Commonwealth to recover the price before delivery. It is true that a vendor and purchaser can make what agreement they like; but here they say nothing about the right to recover the price before delivery. Payment before delivery is provided for, but the question is whether that gives the right to recover the price before delivery. (at p643)

2. "Before the Judicature Acts the price of goods sold could be recovered under the common indebitatus counts. The count for goods sold and delivered was applicable where the property had passed and the goods had been delivered to the buyer, and the price was payable at the time of action brought. The count for goods bargained and sold was applicable when the property had passed to the buyer and the contract had been completed in all respects except delivery, and the delivery was not a condition precedent to the payment of the price. Now it is sufficient to show facts disclosing either cause of action, but practically the old counts are still used". Chalmer's Sale of Goods, 12th ed. (1893), pp. 137, 138. See also s. 49 (1) of the Sale of Goods Act (S.A.). (at p643)

3. It will be observed that in the case of each count the price could not have been recovered unless the property had passed. Here, as the Chief Justice and Williams J. point out, the property did not pass until delivery. However, s. 49 (2) of the Sale of Goods Act provides that if the price is payable on a day certain irrespective of delivery, the seller may maintain an action for the price, although the property in the goods has not passed. But, by the mere provision for payment before delivery, the price did not, in my opinion, become payable on a day certain so as to bring the case within s. 49 (2). "That is not the case of a day being appointed for payment of money and the day happening before the thing which is the consideration for the payment". See Stein, Forbes & Co. v. County Tailoring Co. (1916) 86 LJ KBD 448 , per Atkin J. (at p643)

4. The argument that the maxim id certum est quod certum reddi potest applied failed, and the argument that payment was not on a day certain unless the day had been fixed by agreement, prevailed in Muller Maclean & Co. v. Leslie and Anderson (1921) WN (Eng) 235 . In each case the contract provided for payment against documents. Here it provides for payment before delivery; but that does not make the date of payment certain. Indeed I think this case is a fortiori . Further, I am unable to take the view that payment before delivery means payment within a reasonable time. It seems to me that the provision for payment before delivery is intended to do no more than make delivery conditional upon prior payment. (at p644)

5. However, the Commonwealth Crown Solicitor demanded payment of the price in his letter of 22nd April 1947 and stated that if it was not paid legal proceedings would be taken for its recovery. As the Commonwealth had no right to recover the price until the property had passed to the society, his letter might be thought to be an acknowledgment that delivery had taken place. In demanding payment of the price the Crown Solicitor did not necessarily take the stand that delivery had been given by the Commonwealth and accepted by the society, but, in intimating that proceedings would be taken to recover the price, I think he did so, as the price could not, in my opinion, have been recovered by action unless there had been delivery, since no day had been named for payment. On the other hand, the society, in acknowledging its liability to pay, as it did in its letter of 28th March 1947, cannot be said to have also taken the stand that constructive delivery had been made: it had undertaken to pay before delivery and the letter may have been nothing more than an acknowledgment of that fact. In these circumstances it would perhaps be going too far to find evidence of constructive delivery in the attitude of the parties as disclosed by this correspondence. It is true that the society now contends that it regarded delivery as having been given and accepted, but that is because it wrongly claims it already had delivery as from 3rd October 1946. There is no evidence, apart possibly from the correspondence referred to, that supports a finding that constructive delivery had taken place after the acceptance of the Commonwealth counter-offer of 3rd October 1946 and, with some hesitation, I think the correspondence does not support a finding of constructive delivery. (at p644)

6. I agree that the appeal should be allowed. (at p644)