Smith v. Howden Union Rural Sanitary Authority ([1890] 2 Huds. B.C. (4th ed.) 156); Eaglesham v. McMaster [1920] 2 K.B. 169); Kellett v. New Mills Urban District Councy ([1900] 2 Huds. B.C. (4th ed.) 298); Pawleil v. Turnbull ([1861] 3 Giff. 70), and Cross V. Leeds Corporation ([1902] 2 Huds, B.C. (4th ed.) 339) discussed. Dixon v. South Australian Railways Commissioner (1923 S.A.S.R. 1, supra) affirmed. DIXON v. SOUTH AUSTRALIAN RAILWAYS COMMISSIONER 34 C.L.R. 71. [High Court.]

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Condition Sale and purchase of racehorse -Conditions-Power to retake possession on default of observance of-Horse becoming permanently unfit for racing-Implied condition Conversion Damages. B. purchased a mare from H. for £210-£105 cash, the balance by four instalments of £26 5s., payable out of first prize moneys won by the mare. By the agreement, B. undertook not to sell the filly until the whole of the purchase money had been paid, and that he would, during the continuance of this agreement, in a thorough and bona fide manner, train, feed and keep the said filly for racing purposes." It was also provided that should B. make default in the observance or performance of any of the conditions of the agreement, H. could retake possession of the mare. About six months after B. took her, trouble developed in one of her front legs, and although she was carefully tended, she had become unfit for racing purposes before November, 1922. The mare was then used as a brood mare, and she became in foal to Amberdown." November, 1922, H. seized the mare, and B. brought an action against him for damages for conversion. Held, that although the condition to train and race the mare was express, that express term was subject to the implied condition that should the mare become unfit for racing purposes there should be no obligation to train or keep her for such purposes; that under the agreement, H. was not entitled to any further payment unless the mare won a race, and that H. had no right to seize the mare. BONNEY V. HARTMANN, 1924 S.R. (Q.) 232; 18 Q.J.P.R. 101. [Queensland.]

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In

Work and labour-Quantum meruit. The plaintiff, a surveyor, claimed from the defendant, a sum of £82 10s. for work done and services rendered by the plaintiff as a surveyor on the defendant's estate under an oral agreement whereby he was engaged by the defendant to survey certain drains and watercourses on the estate. The magistrate found that the parties had agreed that the work should be done on the terms alleged by the defendant, viz., for £17 10s., the defendant also to provide board and residence for the plaintiff and also assistants, and that the agreement was that the survey should follow the course of the drains and watercourses, which had not been done. The magistrate further found that the survey could have been completed in accordance with the agreement between the parties for an additional expenditure of £10, and he, therefore,

entered judgment for the plaintiff for £7 10s., being £17 10s. payable under the agreement, less £10 cost of completing the survey. Held, that the plaintiff was not entitled to recover on a quantum meruit. The plaintiff having contracted to do certain work and having failed to complete that work the defendant was, in the circumstances, entitled to judgment. NICHOLSON v. BURNETT, 1923 W.A.L.R. 101. [Western Australia.]

Working option over mine-Omission to redeliver mine in as good state of repair and condition as when option given-Failure to prove any substantial loss Measure of damages.The appellants, the owners of certain gold mines, by a written agreement granted to the respondent a working option over the mines. The said agreement provided that upon the end or sooner determination thereof the respondent should give up possession of the mines to the appellants in as good a state of repair and condition as they were at the date of the option, fair wear and damage excepted. The agreement further provided that if either party should commit any breach of its terms he should make good any damage which might be suffered by the other party owing to such breach or pay to him the amount of such damage. The respondent entered on the mines and carried on operations under his option for several months, at the expiration of which he determined the option by virtue of a provision which it contained in that behalf. When the respondent gave up possession of the mines there were jammed in the main shaft of one of the mines two bailing tanks which the respondent had been using in connection with the operations he had been carrying out under his option. This represented a breach of the agreement. This mine had been unworked and full of water for some two years before the option was granted and, at the time the option was granted, was in such a condition that, irrespective of the tanks, it was commercially a hopeless proposition to empty it of sand and water and work the winze at the 800ft. level and, as the shaft was of no use for any other purpose, the appellants suffered no actual damage by reason of the tanks being left in it. The warden, having entered judgment for the respondent, the appellants appealed. Held, the appellants having proved a breach of the contract were entitled to judgment, but, having failed to prove that they had sustained substantial loss, could only recover nominal damages. The true measure of damages was the pecuniary amount of the difference between the position of the appellants on the breach of the contract, and what it would have been if the contract had been. performed. WRIGHT V. TRUDE, 1923. W.A.L.R. 121. [Western Australia.]

Indivisible-Construction-Intention of parties-Repudiation after part performanceEffect. An agreement between a shearing contractor and a shearer provided that the shearer should shear all the sheep on a certain station which the contractor might require him to shear at the shearing to commence

on a named date. The minimum and maximum number of sheep to be shorn were specified and it was provided that the contractor should keep the shearer supplied with sheep till the completion of the shearing. Payment was to be made at a specified rate for each hundred sheep shorn. There was also the following clause : "34. Before shearing is commenced the employer will appoint a certain day of the week for payment to each employee in each week who requires it, or on his order, of any portion of his earnings up to seventy-five per cent. of the amount for the time being due to him over one week's earnings." The shearer abandoned his employment before all the sheep on the station had been shorn. As the contractor refused to pay him anything in respect of the work which had been done by him prior to his abandonment, the shearer brought this action against him. At the trial the district court judge found that the plaintiff had broken his agreement and had abandoned his work without justification, but, under the clause set out above, found for the plaintiff in an amount equal to the proportion of the plaintiff's earnings calculated according to such clause, holding that, if a demand were necessary under that clause, the bringing of the action was a suffifficient demand. On appeal, held, that the contract was an entire and indivisible contract to shear all the sheep on the station that the clause, on which the verdict was founded, ceased to have any operation after the termination of the contract, and that, therefore, the plaintiff was not entitled under it to anything by virtue of something done since such terminaction. Ex parte Cameron (11 N.S.W.L.R. 422) followed. SMITH V. JONES, 24 S.R. 444; 41 W.N. 136.

Sale of sheep-Contract in writing-Action for breach-Defendant's name not appearing in document-Evidence of Identification Admissibility.-The plaintiff sued the defen. dant for a breach of a contract for the sale of sheep. The contract was in writing and purported to be a contract for the sale to one "R." and it was signed by one B." purporting to act as R.'s agent. The defendant's name did not appear anywhere on the contract. Evidence was admitted to show that "B." was in point of fact acting as agent for the defendant on the occasion and that it was at defendant's request and with his concurrence that 'R.'s" name was assumed for the purpose. Held, that the contract was not in any way varied nor were its terms contradicted by the parol evidence given to show the identity of the defendant with the person called R." in the contract and that the evidence was properly admitted. MINTER v. JAMIESON, 24 S.R. 589; 41 W.N. 152. [New South Wales.]

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Profit a prendre-Contract to grant "option" to take salt from Crown leases-Construction -Whether exclusive or not-Duration of profit. By a letter from the defendants to the plaintiff, the plaintiff was given “the option " of taking salt from salt leases.

The plaintiff was to pay the whole of the rents and the defendants to receive one-third of the profits; accounts were to be rendered and settlements to be made every six months; depreciation of plant and machinery was to be allowed at 15 per cent per annum on actual costs. The plaintiff was also to carry out all labour covenants. It was also provided that if a company were formed with the defendants consent the defendants were prepared to accept 50 per cent of any vendor's interest in shares or cash. There was a further provision that a minimum of 5,000 tons of salt was to be sold per annum, otherwise the arrangement might be cancelled. The plaintiff accepted the terms of this letter without material qualification. The option was not expressed to be exclusive nor was any term fixed for its duration. The leases were all for twenty-one years and were granted by the Crown. Held, that the letter gave a right to take the salt from another man's land, and constituted an agreement to give a profit a prendre, which was not exclusive to the plaintiff. Held, also (the parties agreeing that the leases should be treated as not being under the Real Property Act 1886), that the profit a prendre lasted for the unexpired period of the leases. NICHOLLS V. LOVELL, 1923 S.A.S.R. 542. [South Australia.]

Interpretation-Agreement by Commonwealth Taking over of ammunition factoryIndemnity in respect of agreement with employees-Executive act of Commonwealth

of

Necessity for Order in Council-Validation of agreement by Parliament-Effect Appropriation Act - Defence Act, 1903-1913, ss. 4, 63 The Constitution (63 & 64 Vict. c. 12), ss. 53, 54, 62, 63.-The respondent company, which carried on an ammunition factory, had been in negotiation with the Department of Defence of the Commonwealth in respect of the taking over by the Commonwealth of the business and the leasing by it of the land and premises used in connection therewith, and certain heads of agreement had been drawn up. A letter was written by the Secretary of Defence to the respondent in the following terms :-" The principal heads of agreement, as understood by this Department to have been agreed to by representatives of both parties are set out hereunder :Clause 8 The company to use its best endeavours to secure, and the Commonwealth to engage, the services of the skilled staff at present employed by the company." To this letter the respondent replied confirm. ing the heads of agreement, and stating that it was prepared to execute the agreement in due course, and that, regarding clause 8 of the heads of agreement, we have to inform you that the following members of the staff are under engagement to this company for the following terms" (included among those named was A., who was said to be assistant manager under engagement for a period of ten years).

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:

These are all the service agreements entered into by the company, and it is understood that the Department will take over the company's obligations thereunder." In reply the Secretary of Defence wrote asking

the respondent to furnish for the information of the Department copies of the agreements standing between the company and the members of the staff referred to therein. The Commonwealth entered into possession of the land and premises, carried on the factory and employed A. therein, but terminated his employment before the period of his engagement with the respondent had expired. Held, that, on the construction of the correspondence the Commonwealth was not under any obligation to the respondent to take over, or to indemnify the respondent in respect of, the service agreement between the respondent and A. who on the evidence was one of the skilled staff of the respondent within the meaning of clause 8 of the heads of agreement. Per Isaacs and Rich JJ.: — (1) Before any administrative act can be justified under s. 63 of the Defence Act 1903-1918 there must be an Order in Council authorising it mediately or immediately. (2) An Appropriation Act of the Commonwealth Parliament appropriating money towards payment in respect of an agreement made by the Executive Government on behalf of the Commonwealth, and which without parliamentary authority would be invalid, does not validate that agreement. Decision of the Supreme Court of Victoria (Irvine, C.J.) reversed. COMMONWEALTH OF AUSTRALIA v. COLONIAL AMMUNITION Co. LTD., 34 C.L.R. 198. [High Court.]

Court of Petty Sessions Complaint for work and labour done Contract for a lump sum-Work not completely done.The complainant, for a lump sum, contracted to remove from its old site to a new site a weather board house, and to leave the house in the same condition as he found it in. He removed the house as agreed, but in the process of removal, owing to the complainants negligence, the interior plaster was seriously damaged, and he refused to make good the damage to the plaster. On a complaint in the Court of Petty Sessions for the contract price, held, that as the contract was an entire contract for a lump sum, and as it had not been completed, the complainant could recover nothing. PARKINSON v. LORD, 30 A.L.R. 396; 46 A.L.T. 76. [Victoria.]

Contract-Evidence-Acquisition of Austrailan wool clips by Imperial GovernmentArrangement between Imperial Government and Commonwealth Government-Rights of suppliers of wool against Commonwealth and Central Wool Committee.-About November, 1916, the Imperial Government entered into an arrangement with the Commonwealth Government to purchase the Australian wool clip through the Commonwealth Government, at an all round price of 15 d. per lb. on the greasy wool basis, with an additional sum for handling charges, and to pay to the Commonwealth Government one-half of any profits derived from the sale of wool for other than military purposes, and it was left to the Commonwealth Government to make its own terms with the wool-owners as to

the distribution among them of the price paid for the wool and any share of profits. For the purpose of carrying out this arrangement and pursuant to the War Precautions Act 1914-1916, the War Precautions (Wool) Regulations 1916 and the War Precautions (Sheepskins) Regulations 1916 were then made. The owners of shorn wool and of skin wool submitted their wool for appraisement and sale under those regulations, and the Imperial Government paid the Commonwealth Government for all wool so appraised and supplied to it through the Central Wool Committee set up under those regulations. The Central Wool Committee undertook the duty of distributing among the suppliers of wool the purchase money and the above-mentioned share of profits as well as other profits which accrued in carrying out the transaction. The same arrangements were made and carried out for the wool clips of the three following seasons. In respect of the seasons 1916-1917 and 19171918 the owners of skin wool participated with the owners of shorn wool in the distribution of the above mentioned share of profits and the other profits which accrued, but in respect of the seasons 1918-1919 and 1919-1920 the Central Wool Committee refused to allow the owners of skin wool to participate in such distribution. Held, on the evidence, (1) that, as to such share of profits and other profits which accrued, there was no contract of any kind by the Imperial Government with the wool-owners nor was there as between the wool-owners and the Commonwealth Government any relation of principal and agent which would entitle the wool-owners to an account of them ; (2) that there was no authority given by the Imperial Government to the Commonwealth Government as its agent to offer to purchase the wool at the price specified and on particular terms as to distribution of the profits; (3) that when the skin wool for the seasons 1918-1919 and 1919-1920 was delivered there was no offer outstanding to purchase skin-wool except on the basis that the sellers would not participate in the distribution of the share of the profits and the other profits which accrued, and accordingly there was no contract except on that basis; (4) that the Commonwealth Government did not requisition the wool, for there was no legal compulsion on any wool-owner to dispose of his wool to the Commonwealth. Held, therefore, that suppliers of skin wool had no cause of action against the Commonwealth or the Central Wool Committee in respect of their refusal to allow the suppliers of skin wool to participate in the distribution of the share of the profits and the other profits which accrued. Cooke & Co., Pty. Ltd. v. The Commonwealth, ([1921-22] 31 C.L.R. 394) affirmed. JOHN COOKE AND CO. PROPRIETARY LTD. v. COMMONWEALTH OF AUSTRALIA 34 C.L.R. 269. [Privy Council.]

John

Option to purchase-Death of person to whom option given-Exercised by personal representative Specific performance.-See

SPECIFIC PERFORMANCE.

Restraint of trade Agreement to serve Contract not to engage in competing business or engage employer's servants-Penalty or liquidated damages-Foreign company-Act not complied with.-Defendant had left the service of plaintiff, and, in breach of his agreement made when entering that service had engaged in a competing business and had employed therein three of plaintiffs' salesmen. The agreement had fixed the sum of £200 as liquidated damages for the breach of any or all of the provisions thereof restraining defendant from competing with plaintiff after the termination of his employment. Plaintiff was a foreign company and had not complied with ss. 300, 302 of the Companies Act 1908. On a claim for £200 damages for the above breaches. Held, 1. That non-compliance with the Companies Act merely rendered plaintiff's attorney liable to a fine and did not prevent it from carrying on business in New Zealand or pursuing its legal remedies for breach of its contract with defendant. 2. That the covenant restricting defendant's personal efforts was void as being in restraint of trade and against public policy; that defendant, however, was liable for breach of the agreement in employing plaintiff's salesmen, but that the £200 mentioned in the agreement was a penalty and not a fair pre-estimate of the damage caused by such employment, and that the damages should be fixed at £75. INTERNATIONAL ART Co. LTD. v. CARMINE, 19 M.C.R. 21. [New Zealand.]

Restraint of trade with particular personsMaster and servant-Covenant not to solicit or serve customers of employer-ValidityEmployer's right to protection. The plaintiffs who carried on a dairy business and who had twenty-one separate milk rounds in various suburbs of Melbourne, employed the defen

dant to drive a cart and to deliver milk under a contract which contained the following term "The employee in consideration of the wages to be paid to him shall not during the term of his service nor will for the period of six months from the termination of his service under this agreement either directly or indirectly disclose or divulge the secrets of the said employer relating to the said business or the names of his customers or solicit or endeavour to obtain the custom of or serve or cause to be served with milk or either directly of indirectly interfere with or cause to be interfered with in any way any of the persons who were during the continuance of his employment under this agreement customers of the employer his successors or assigns." The defendant whose round was limited to one suburb, left the employment of the plaintiff and thereafter solicited the custom of the plaintiff's customers within the prohibited time, and also served them with milk from his brother's dairy. Held, that the covenant was unreasonable and void, inasmuch as, having regard to the wide extent of the plaintiff's business and the particular nature of the defendant's employment, it went beyond the danger to be guarded against and beyond the defendant's capacity to injure, there being no severable provision reaching the defendant's case. Held, further, that the covenant was not unreasonable and void on the ground that it sought to restrain the mere serving of milk to the plaintiff's former customers, though such serving might be unattended by any element of solicitation; apart altogether from any conscious exercise by a former employee of such influence and knowledge as he may have acquired in his former employment, an employer is entitled to protect himself against loss which may otherwise arise from the mere existence of a personal relation between his customers and his former servant. WOODMASON'S MELROSE DAIRY PTY. LTD. v. KIMPTON, 1924 V.L.R. 475; 46 A.L.T. 68; 30 A.L.R. 356. [Victoria.]

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Validity-Sale of wheat certificates-Future dividends-Payment of differences-Contract of gaming or wagering-Police Offences Act 1915 (Vict.), s. 96-Gaming and Betting Act 1912 (N.S.W.), s. 16.-The plaintiff agreed in writing to sell to the defendants negotiable wheat certificates of the season 1915-1916 representing a certain number of bushels of wheat, at a certain price per bushel. It was stipulated in the agreement that delivery should take place on the date of declaration of the final payment," and that all payments of dividends declared between the date of the contract and the final payment inclusive should be credited to the buyers and adjusted at the time of settlement, but that the seller should have the option of delivering the scrip or of making or claiming a cash adjustment, that is, that payment should be made by the seller to the buyers or vice versa of the difference between the price and the amount or amounts per bushel declared from time to time, inclusive of final dividend of the 1915-1916 pool. The certificates in question

were issued by the Government of New South Wales under a scheme for marketing the wheat harvest of the season 1915-1916, and entitled the holders thereof to an account from the Government for the balance, over any advances then made, of the purchase price of wheat sold to the Government under the scheme. Held, by Knox, C.J., Isaacs and Higgins, JJ. (reversing the decision of Starke, J. on this point), that the contract was one of gaming or wagering, and that no action would lie upon it. Per Isaacs, J. Speculation does not necessarily involve a contract by way of wager, to constitute a wagering contract a common intention to wager is essential. Decision of Starke, J., in favour of the defendants affirmed on another ground. SEE v. COHEN, 33 C.L.R. 174. [High Court.] Same case: 29 A.L.R. 381; 1923 Digest, col. 59.

Illegality Gaming House kept for conducting the business of gaming-Commission on bets "brought to "house Whether recoverable-Bets paid at request of keeperWhether recoverable. The plaintiff was employed by the defendant, who was engaged in conducting the business of a betting house in contravention of Division 4 of Part IV. of the Police Offences Act 1915, and in that employment he "brought bets into the office " of the defendant, his agreed remuneration being a commission of 10 per cent. on the amount of the bets so brought in. There was owing to him £156 for commission. He had also, at defendant's request, paid the sum of £39 in respect of certain bets which he had brought into the office, and which defendant had lost. The place and time of such pay. ment were not in evidence. In an action to recover the £39 and the £156, held, that inasmuch as there was only one payment and there was no evidence that the payment of lost bets was part of the business of the office, or that the plaintiff, in making the payment, was assisting in the conduct of that business, or when or where the payment, or the request leading to it, was made, and the plaintiff also could establish his case without relying on any illegal transaction, he could recover the £39, but that as to the £156, he could not recover, since the agreement relied on was designed to promote and bring about the very object the Legislature had forbidden, viz., the using of a house by a person conducting the business thereof for the purposes or one of the purposes mentioned in s. 97 of the Police Offences Act 1915. Farmers' Mart Ltd. v. Milne ([1915] A.C. 106, at p. 113) applied. SPENCER v. PIERCE, 1924 V.L.R. 421; 46 A.L.T. 51; 30 A.L.R. 304. [Victoria.]

Money paid Gaming - Contract of agency to make bets-Contract made on licensed premises Illegality Contrariety to public policy. To a claim in a local Court for money paid to the use of the defendant at his request, the defendant set up that the money was agreed to be paid under an agreement by way of gaming within the Lottery and Gaming Act 1917, and therefore void, and also pleaded that Act. The facts as found by the local

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Court were that the plaintiff, by telephone conversations conducted with the defendant from licensed premises, agreed to act as agent for the defendant in accepting bets on doubles on a commission basis. The plaintiff accepted bets and paid the winners of the bets, alleging that if he did not, his business as an auctioneer, commission and turf agent would have suffered. On the defendant refusing to pay, the plaintiff brought his action. Held, on the evidence, that the local Court was justified in finding that no bet had been made on licensed premises, and that the conversations which had taken place were not within s. 27 of the Lottery and Gaming Act 1917, and accordingly, the contract was not void, nor the money irrecoverable because of that section. Held, also, on the evidence that the local Court was justified in finding that there was a contract of agency to make bets, and this contract was not necessarily illegal, nor had it been shown that the plaintiff had an illegal object in making the contract or that he had carried out his duties in an illegal way. Held, also, that the contract was not illegal as being contrary to public policy. Wilkinson v. Osborne ([1915] 21 C.L.R. 89) applied. Held, further, that the authority to make the bet included an authority to pay the bet if lost, and, accordingly, the money paid was recoverable. Forget v. Ostigny ([1895] A.C. 318) applied. MIDDLETON v. CAVENETT, 1923 S.A.S.R. 255. [South Australia.]