or plan-Action in excess of council's powersInjunction. The Municipal Council of Sydney is empowered by Statute compulsorily to resume any land required, but only land

66

required," for carrying out improvements in or remodelling any portion of the city. Before, however, the council, in pursuance of such power, can take a particular piece of land, it must determine whether such land is required for the authorized purpose, and it cannot so determine unless and until it has first given consideration to a scheme or plan for improving or remodelling a definite area of the city and has determined the general nature, at least, of the improving or remodelling, which it wishes to carry into effect. The scheme or plan, moreover, so considered must have been sufficiently definite to have enabled it to determine the necessity or desirableness of taking the particular land for such purpose. If, therefore, it is established to the satisfaction of the Court that the council, though purporting in terms to resume land for such authorized purpose, has in fact given no prior consideration to any such scheme or plan and arrived at no such determination, it will be restrained by injunction from so acting in excess of its statutory powers. CAMPBELL AND ORS. v. MUNICIPAL COUNCIL OF SYDNEY (No. 2). HUGHES MOTOR SERVICE LTD. v. SAME, 24 S.R. 193; 41 W.N. 13; 6 L.G.R. 165. [New South Wales.]

66

Sydney Corporation Amendment Act, 1905 s. 16 (as amended by No. 16, 1906, s. 3)— Resumption of land-Widening street-Remodelling area-Time of resumption-Issue of Government Gazette.-A council, having power to resume land for the purpose of widening streets and also all lands of which those required for such purposes form part," resumed part of a block of land for the purpose of widening a street and the rest of it for the purpose of carrying out improvements and remodelling portion of the city. The Court held that, as there was nothing to indicate a lack of good faith in the council, the resumption was valid. Per Street, C.J. in Eq. A notification of resumption by a council is not published in a Government Gazette when an advance copy is sent to the Town Clerk, but only when the Gazette has been made available for sale to the public and for general distribution. CRITERION THEATRE LTD. v. SYDNEY MUNICIPAL COUNCIL, 7 L.G.R. 21. [New South Wales.]

:

Local Government Act 1919, s. 536-Public Works Act 1912, ss. 42 to 46, 101 to 104 and 124 Land and Valuation Court Act 1921, s. 9 Sydney Harbour Trust Act, s. 27Sydney Harbour Trust (Reclamations) Act 1905, s. 2-Crown Lands Act of 1861, s. 9— Compensation for resumption of land-Riparian rights-Reclamation-Lease of reclaimed area-Probabilities of renewal-Compensation Reinstatement principle.-Certain reclamation works had been carried out by the riparian proprietor of land in Sydney Harbour many years ago, no evidence being given whether such works were authorised or were merely an act of trespass. The Court, 13

A.A.D., 1924

66

after reviewing the Acts dealing therewith and the cases thereon, held, that the presumption was in favour of the works having been made under the authority of the Crown. Consideration given to the question of abandonment of riparian rights, by reason of the construction of unauthorised reclamation works. Matters to be taken into account in applying the reinstatement principle as a basis in arriving at the amount of compensation for resumption, considered. Attorney-General of Southern Nigeria v. John Holt & Co. ([1915] A.C. 599) followed; Day v. Brunker (12 N.S.W.L.R. Eq. 157) distinguished; Robert Reid & Co. v. Minister for Public Works (2 S.R. 405) and The Minister v. The N.S.W. Aerated Water Co. Ltd. (22 C.L.R. 56) referred to. SYDNEY FERRIES LIMITED v. THE MINISTER, 2 L.V.R. 187; 6 L.G.R. 156. [New South Wales.]

Resumption of land-Fresh valuation on application of owner-No objection lodgedMarket value. In an action for compensation for compulsory resumption of land, where the owner had applied for a fresh valuation as at the date of resumption, and the same had been made by the ValuerGeneral under s. 70 (1) of the Valuation of Land Act 1916, and entered on the roll and no objection thereto had been made by the owner, although notice had been given him, such valuation must be accepted as the market value of the land as at the date of resumption. It is still open, however, to the owner to show that the land had a particular value to him. ROWLEY V. THE MINISTER, 7 L.G.R. 42 (Pike, J.). [New South Wales.]

Assessment-Value of land resumed under Sydney Harbour Bridge Act.-See LOCAL GOV. ERNMENT, Col. 287.

on the employer unless he is proposing to add to the number of his employees. GLASSON v. MUNICIPALITY OF BLAYNEY, 41 W.N. 65; 7 L.G.R. 4. [New South Wales.]

Preference of employment-Employer desiring to obtain an employee.-See LoCAL GOVERNMENT, col. 308.

Preference to-Other things belng equal— Evidence-Admissibility.-See LOCAL GOVERNMENT, col. 309.

Preference to returned soldiers-Validity of award. See INDUSTRIAL ARBITRATION, col. 196.

Regulations relating to returned soldiersPublic policy.-See BANKRUPTCY, col. 28.

Expense of making street-Land owned by Advances for Homes Board (S.A.)-Agreement to sell to returned soldier-Exemption from rates, etc. See LOCAL GOVERNMENT, col. 295.

Homestead farm-Appraisement of valueImprovements. See CROWN LANDS, col. 122.

Charitable trust-Bequest for benefit of N.S.W. Returned Soldiers Repatriation Fund. See TRUST AND TRUSTEE, col. 469.

RIGHT OF WAY.

Obstruction of right of way by structure on servient tenement.-See EASEMENT.

RIPARIAN RIGHTS.

Valuation of land-Unimproved valueBed of harbour.-See LOCAL GOVERNMENT, col. 286.

ROAD.

County road-Injury to by vehicle of excessive weight-Recovery of damages-Procedure. In an action commenced in the Magistrate's Court for the recovery of damages claimed in respect of injury caused by a vehicle and load of excessive weight to a road whose surface the plaintiff council had the right and duty to repair and maintain, the plaintiff was nonsuited, the Court holding, on the authority of The Tuapeka County Council v. Jones (15 G.L.R. 408; 1913 N.Z.L.R. 618) that a civil action for an injury to a road vested in the Crown will not lie at the suit of a local body unless the Crown is joined as plaintiff, and, on the authority of Gardine v. Mair (8 G.L.R. 788; 26 N.Z.L.R. 336), that in order to invoke s. 150 of the Public Works Act 1908, proceedings should be commenced by information or complaint. FEATHERSTON COUNTY COUNCIL v.HEWETSON, 19 M.C.R. 5. [New Zealand.]

as

Hire-purchase agreement-Motor car-Exchange between hirer and company for another car-Possession of company-Whether mercantile agent.-Plaintiff had entered into a hire-purchase agreement in respect of an S. motor car, which was exchanged by the hirer for a P. car without the consent of the owner. The company which had acquired the S. car by virtue of the exchange, sold it to the defendant, who was sued by plaintiff (the owner) for conversion. Held (giving judgment for plaintiff for the amount of his interest in the car), Whitely v. Hilt ([1918] 2 K.B. 808) applied. (1) Sub-sect. 1 of s. 3

of the Mercantile Law Act 1908, had no application, as the company was not in possession as a mercantile agent, but as supposed owner by virtue of the exchange. Cole v. Northwest Bank (L.R. 9 C.P. 470; L.R. 10; C.P. 354) applied; (2) Sub-sect. 2 of s. 27 of the Sale of Goods Act 1908, had no application, as the hirer was not a person who had bought or agreed to buy goods, but merely had an option to buy. Helby v. Matthews ([1895] A.C. 471) applied. CUNNINGHAM v. RICHARDSON, 1924 N.Z.L.R. 433; G.L.R. 70. [New Zealand.]

Hire-purchase of goods-Order-Acceptance by letter or delivery at stipulated date "On or about certain date "Advice note with goods-Delivery too early-No concluded contract. The appellant sent an order on 7th June, 1922, to the respondent to send to the apellpant on hire a Massey-Harris binder, to be delivered on or about 1st October, 1922. The order also contained a term that it was not to be binding on the respondent until received and ratified by it in writing or by the actual delivery of the goods to the appellant. A further condition was that the order might be cancelled by the appellant giving notice to the respondent by registered letter at least thirty days prior to the date for delivery, with a proviso that if prior to that date or six months thereafter the appellant ordered a binder from any other person the appellant might by registered notice revive the order, and deliver the binder within thirty days. An agent of the respondent was told by the appellant that he wished to cancel the order, as he was buying a Sunshine harvester, and the agent notified the respondent of this, but no notice was given by the appellant to the respondent. On 2nd September, 1922, the respondent forwarded by rail a Massey-Harris binder to the appellant, and on the same day wrote him stating that it had forwarded the binder per rail, and that if the consignment was damaged or short he was to notify this on the receipt and claim on the carrier. The machine arrived at its destination a day or two after its despatch, and the defendant refused to take delivery, but admitted that he had received the letter. Held, that the letter did not amount to a ratification of the order, and that a delivery on 2nd September did not necessarily imply a delivery pursuant or referable to the stipulation in the contract for delivery on or about 1st October, and, consequently, there was no acceptance of the order. BLACKETT V. CLUTTERBUCK BROS. (ADELAIDE) LIMITED, 1923 S.A.S.R. 301. [South Australia.]

bona fide purchaser for value without notices, the owner's right to recover his chattel is not affected by the provisions of s. 2 of the Chattels Transfer Amendment Act 1922. CARMINE . HOWELL, 19 M.C.R. 103. [New Zealand.]

Hire-purchase agreement-Milking machinery Whether chattel or part of freehold— Equitable owner of land-Prior equitable title Recaption on default by owner of chattels included in agreement. The plaintiff in 1919 purchased the equity of redemption of a farm subject to a first mortgage at the same time giving a second mortgage to his vendor. About a month later the plaintiff resold the farm at an enhanced price to L. taking a third mortgage over the property from L. In 1921, L. sold the farm to T. taking a fourth mortgage over the premises. The main business of the farm carried on by T. was dairying, and in 1922, he hired a milking machine and plant from the defendant company under the usual form of hire purchase agreement, which enabled the defendant company, on the hirer making default in payment of any instalment, to retake possession of the machinery and plant. In February, 1924, T., being in financial difficulties and in default with the payment of an instalment under the hire purchase agreement conveyed the equity of redemption in the land with the consent of the mortgagee L., to the plaintiff, he having had notice of the hire-purchase agreement. The plaintiff having informed the defendant company that he claimed the milking machinery and plant, the defendant company, peaceably entered upon the farm and retook possession thereof. The machinery and plant were affixed to the land in the usual way, such kind of machinery and plant are affixed, and were easily removed without injury to itself or the fabric of the building. In an action for damages for the trespass and conversion, held, that the question was one of fact whether the machinery and plant was a chattel or had become part of the freehold, and that the milking machine and plant remained the property of the defendant company, that it was not liable for the recaption and that the defendant company's equitable title took precedence of the plaintiff's equitable title, being prior in point of time, Booth v. Goodwin (1923 G.L.R. 121; N.Z.L.R. 704, 1923 Digest col. 240) and Pukeweka Sawmills Ltd. v. Winger (1916 G.L.R. 728; 1917 N.Z.L.R. 81) followed. Official Assignee of Adams v. Drysdale 1923 G.L.R. 603; 1924 N.Z.L.R., 321 1923 Digest col. 303) distinguished. JOHNSTON V. INTERNATIONAL HARVESTER Co. OF NEW ZEALAND LTD., 1924 G.L.R. 666. [New Zealand.]

Contract made in Sydney-Goods already shipped to England-Documents in EnglandTender of, to purchaser's English agentAgent without instructions-Conditional acceptance Delivery Evidence. The plaintiffs, Sydney merchants, brought an action on a contract of sale, entered into in Sydney, under which they purchased from the

defendants, goods then at sea. The defendants contracted to deliver the goods in England. The plaintiffs informed the defendants that the Liverpool and Martin's Bank were their agents for the purpose of receiving the goods, and they were directed to receive the goods from Lloyds Bank, England, announced by the defendants as their agents. Documents for the goods were tendered to the Liverpool and Martin's Bank by the London Branch of the National Bank of Australasia, but without any intimation that the National Bank was delivering on behalf of the defendants, or that delivery was being tendered to the Liverpool Bank as agent for the plaintiffs. The Liverpool Bank, pending further instructions, accepted and held them as agents for the National Bank. The Chief Justice held that there had been a delivery to the plaintiffs. Held, on appeal, that there had been no delivery to the plaintiffs of the goods. But, as there was some evidence from which the jury might have come to the conclusion that the plaintiffs accepted the delivery to the Liverpool Bank as a tender under the contract, and as that question had not been left to the jury there must be a new trial. J. W. H. TURNER & Co. v. O'RIORDAN & ORS., 24 S.R. 421; 41 W.N. 141. [New South Wales.]

cluded

Contract-Written orders for goods-Letter of acceptance containing additional terms for seller's benefit-Whether counter offersWaiver-Conduct of buyer-Whether concontract-Letter signed by buyer for and on behalf of "a limited companyWhether signature of individual-Goods Act, 1915 s. 9.-The authorities which establish that under some circumstances a plaintiff seeking specific performance of an executory contract required to be evidenced by a duly signed writing, may, when confronted with the objection that a term exclusively for his benefit is not so evidenced, be allowed to treat such term as severable and to obtain specific performance of the contract as if such term were not included, are not applicable to a case where the plaintiff sues for damages for breach of a contract for the sale of goods which, on the hypothesis of a concluded contract, includes a term securing to the plaintiff a protection and benefit in certain events, but not evidenced by any duly signed writing and not waived or disavowed until, in the course of the litigation the existence of this term has been shown to make applicable the statutory defence; under such circumstances this (unrecorded) term is not severable. Hawksley v. Outram, ([1892] 3 Ch. 359); Morrell v. Studd and Millington, ([1913] 2 Ch. 648); and North v. Loomes ([1919] 1 Ch. 378) considered. A proposing buyer in Victoria, after negotiations for contracts for the purchase of certain goods on the terms (inter alia) cash against documents, forwarded to the sellers' agent for transmission to the sellers in England certain written orders for goods, each of which included (inter alia) the following term: "Please confirm this order." In respect of each order the sellers wrote to the buyer a

letter which commenced: We beg to confirm acceptance," but which contained an additional clause granting the sellers in certain events the right to suspend delivery. The buyer, in the opinion of the Court, did not accept this additional clause, but the sellers shipped goods of the classes referred to in the orders to their agents in Victoria for delivery to the buyer. The buyer having meanwhile sold his business to a limited company, subsequently wrote to the sellers a letter which incorporated the written orders but not the sellers' letters, and which was signed by the buyer "for and on behalf of " the company. The buyer having failed to accept or to pay cash against the documents, the sellers brought an action for damages for breach of contract. The sellers' counsel offered to waive the clause relating to the right to suspend delivery. Held, that, in the circumstances, that clause, although inserted for the sellers' benefit exclusively, could not be waived or treated as severable; that the sellers' letters amounted to counter-offers, and as the buyer had not accepted these there was no concluded agreement. Held, further, that the subsequent letter above referred to, being written on behalf of the limited company and not on behalf of the buyer, did not bind the buyer, but that, even if it did, such letter did not bring about a concluded agreement within s. 9 of the Goods Act 1915, inasmuch as it did not incorporate the sellers' letters. Young V. Schuler (11 Q.B.D. 651) and Ridgway v. Wharton (6 H.L.C.) 238 applied; BASTARD v. MCCALLAM, 1924 V.L.R. 9; 30 A.L.R. 1; 45 A.L.T. 101. [Victoria.]

Contract Construction Performance Agreement to purchase at future time goods to be then ascertained-Readiness and willingness-Appropriation of goods-Agreement to grant sublease-Consent of lessor not obtained—Repudiation. The plaintiff, who was carrying on the business of a ship chandler and desired to sell and dispose of all his stocks of chandlery, entered into an agreement with the defendant whereby it was agreed (inter alia) that, from and after the date of the agreement and for a period ending on a specified date, the defendant should purchase "all such stocks of chandlery which are now carried by "the plaintiff except certain classes of chandlery, and that the plaintiff would continue selling the others; that on the specified date the defendant "shall purchase and take over from the plaintiff all such of the stocks remaining in the ship-chandlery department" of the plaintiff as the plaintiff "shall be willing to sell and dispose of to " the defendant; that the plaintiff would sublet to the defendant as from the specified date "the lease of the premises in which the plaintiff carried on business, such sublease being subject to the approval of the lessor, at a certain weekly rental; and that, if on the date specified the stocks to be taken over by the defendant were not reduced to a certain sum, the agreement could be postponed for a further six months on the same terms, but if before

66

the end of that period the stocks should be reduced to that sum, the defendant should take them over. An action was brought by the plaintiff against the defendant to recover damages for breaches of the contract, the breaches alleged being the refusal by the defendant to purchase or take over the goods on the specified date and his refusal to pay rent for the premises. Held, that the plaintiff was not entitled to recover. By Isaacs and Rich JJ., on the grounds (1) that the plaintiff did not inform the defendant on the specified date what goods then in his possession he was then willing to sell to the defendant, and (2) that before the specified date there had been no repudiation of the contract by the defendant so as to relieve the plaintiff from the obligation of being ready and willing to perform the contract on the specified date; and, by Isaacs J., on the further ground (3) that by reason of his omission to obtain the consent of the lessor to the sublease, on or before the specified date, the plaintiff was not then ready to perform an essential portion of the contract; by Starke, J., on the ground that there was no sale of or agreement to sell any goods and that the obligation to pay rent was dependent upon a sale of or an agreement to sell goods. Decision of the Supreme Court of Victoria (Mann J.) reversed. BANNISTER v. HEYMAN 34 C.L.R. 243. [High Court.]

Goods unconditionally appropriated to the contract by seller with assent of buyerDelivery of other goods-Right of actionSale of Goods Act of 1896, s. 21, r. 5.—On a claim by S. against R. for the price of certain bales of kapok sold and delivered, it appeared that certain bales of kapok were unconditionally appropriated to the contract by the seller with the assent of the buyer on 11th July, 1923; some bales were delivered to R. which were not those so appropriated, but similar goods which had arrived by a subsequent shipment. R. refused to accept the bales. Judgment for the plaintiff in the Magistrate's Court was set aside and judgment entered for the defendant with costs. J. ROWE AND SON LIMITED v. SLADE, 1924 S.R. (Q) 119. [Queensland.]

Acceptance-Whether goods retained an unreasonable time before rejection-Whether contract a c.i.f. Contract-Sale of Goods Act 1908, s. 37.-PARTRIDGE AND Co. BIGNELL (N.Z.) LTD. v. AND HOLMES, 1924 N.Z.L.R. 769. [New Zealand.] Same case: 1923 G.L.R. 657; 1923 Digest, .col. 382.

Delivery by instalments-Condition-Transaction entered into by way of winding up partnership-Shipment expected June/JulyReasonable time for delivery-Repudiation on ground of delay in delivery.-IN RE HAMILTON AND CO. LTD. v. OVERELL AND SAMPSON PROPRIETARY LTD., 1924 N.Z.L.R. 386. [New Zealand.]

Same case: 1923 G.L.R. 640; 1923 Digest, col. 387.

Contract Refusal to accept goods-Rights of seller-Sale of Goods Act 1895, ss. 4, 16, 17, and 18.-In July, 1921, the defendant, through its foreman, entered into an oral contract with the plaintiff by which the defendant was to buy from the plaintiff sleepers cut by the plaintiff at £5 17s. per load at siding. No definite number was to be supplied, nor was the plaintiff bound to deliver any sleepers. The plaintiff made deliveries which were accepted and paid for by the defendant at the price mentioned. By a letter dated 4th March, 1922, the defendant wrote to the plaintiff: "I wish to point out to you that I instructed Mr. Harnett (defendant's foreman) some six weeks ago that the price of the sleepers paid by our company was to be reduced and therefore, if you have any intention of supplying further to our company I would like you to let us know at once as we have now only a limited number of sleepers to supply, and we want to know exactly what you are prepared to deliver. Our price at Cordering will be £5 5s. on trucks at siding." By letter dated 10th March, 1922 the plaintiff replied:

I note in your letter that you are giving £5 5s. per load for sleepers on trucks. We had nearly 600 sleepers cut when I heard a rumour of the fall in price. Can I take it that we will be entitled to £5 17s. for all sleepers cut before we heard of the fall

The defendant's manager by a letter dated 18th March, 1922, wrote to the plaintiff as follows: My contract with the South African Government expires on the 31st of this month. I would, therefore, advise you to get in all the sleepers you can before that date as I am not prepared to purchase any further sleepers after this date at the prices which have been received by you. It will be necessay for you to have a pass too in order that the certificate may reach this office by not later than the 30th of this month. Personally, as you have not been advised of the drop in sleepers, I have no reason to doubt your word. I think you are entitled to the £5 17s. per load at Cordering siding as previously paid. I would, therefore, advise you to get busy and cart these in at once in order that you can have a pass, and the certificate in this office by the date mentioned above. All sleepers over the number of 600 referred to included in this pass will be paid for at the reduced rate." By a telegram dated 25th March, 1922, Letter the plaintiff wired the defendant: to hand to-day. About 1,100 sleepers to cart. Would like week extra." On the same day the defendant telegraphed to the plaintiff :

"

Bingham Company fully supplied. Can only offer for Wilga Syndicate five pounds load on trucks delivery within two months. Reply promptly if accepting." On 28th March, 1922, the plaintiff wired the defendant:

Sleepers at Cordering and Darkan ready for pass on Thursday." Other telegrams passed between the parties as appear in the judgment. The plaintiff delivered 874 sleep. ers at the sidings, but the defendant declined to recognise any liability in respect thereof.