demand, the award amounts to an adjudication that the plaintiff has no such further claim, or that the defendant's cross-demand is untenable; but, where the matter so set up from its nature requires to be specifically adjudicated upon, mere silence will not do." It must appear clearly, and without doubt, that the arbitrator did not take the question of short delivery into consideration and include it in his award; In re Gillon (a). There is, in the language of Coleridge, J., in In re Brown (b), "only an absence of a direct statement that the arbitrator did consider it." Mere silence is not sufficient, unless, as in Samuel v. Cooper, there is a distinct finding that the particular matter is not in dispute. It may be added that, in favour of Messeurs Josephson and Oakes, the award directs the promissory note to be dated 1st January, 1866, and not the 29th May, 1865, according to Messeurs Lowe's construction of the agreement.

The Attorney-General in reply. The proposition laid down in Harrison v. Creswick (c), that the award will be held final, " if by an intendment it can be made so," is altogether in support of this application. For it is an utterly unfounded and unreasonable intendment that the Court shall presume, from the silence of the arbitrator, that he considered the delivery of a thousand cattle a compliance with this agreement. There is no decision as to that claim; there is no reference to it in the award, or in the arbitrator's affidavit.

STEPHEN, C.J. I am of opinion that the question of short delivery has been in substance decided by the arbitrator. Considering that this was one of the points in contest, and substantially the only one, and that it was confessedly stated at the arbitration, I think it unreasonable (notwithstanding the difficulty introduced by the clause commented on) to believe that it, nevertheless, was not considered by him and decided. But as the day of payment was to be computed from the day of final delivery, it seems to me to follow that the arbitrator (a) 3 B. & Ad. 493. (b) 9 A. & E. 522.

(c) 13 C.B. 417.

must have decided, or may reasonably be inferred to have decided, that there was such a final delivery. In other words, the arbitrator must have found and acted on an opinion (doubtless in favour of the vendors) on the subject of the short delivery. If so, whether the decision was right or wrong, the award cannot be disturbed. I think it clear, moreover, from the terms used by the arbitrator on the face of the award, that he meant to decide, and therefore it must be presumed that he did decide, all the matters which were referred to him.

HARGRAVE, J. This case involves some points of diffi culty and importance. But I think the form of the award, and the clause as to the release, distinguishes this case from those relied on by Mr. Darley. Since the arbitrator releases one side, unless it is clear that the other side is also released, the award is bad. I do not think that because he has fixed the day of final delivery, he has also decided the question of compensation. Has any right of action, vested in Josephson and Oakes, been taken away from them? It is clear, in my opinion, assuming the words of the agreement to be words of description, and that a particular herd of cattle only is the subject of the agreement, and that that herd consisted of a thousand head only when the contract was for two thousand head, that Messeurs Josephson and Oakes can bring an action at law for the short delivery; and are also entitled to relief from a Court of Equity. If, therefore, they possess these two remedies, I cannot assume that the arbitrator decided the question in connection with them. It must be assumed that the arbitrator overlooked this point, and has not decided it.

FAUCETT, J. Two questions were before the arbitrator; the first was whether the Messeurs Lowe were entitled to be paid for the cattle already delivered. That was one matter in dispute brought forward by the Messeurs Lowe, and depended upon the construction of the contract. If the arbitrator decided that they were entitled to be paid as on a final delivery, he must, I

should think, first have decided that there had been a final delivery.

The second point was whether Messeurs Josephson and Oakes were entitled to damages for short delivery. If that point has been decided, Josephson and Oakes are bound; but the question is whether it has been decided. The arbitrator has decided that, for the cattle delivered, the Lowes ought to be paid; and in a certain manner this latter point is unimportant, except so far as it shows whether or not the other point has also been decided. The arbitrator may have considered that under the contract Josephson and Oakes were entitled to receive only a particular herd, and that the Lowes had performed their contract if they delivered all the cattle they had, even although the herd consisted of less than two thousand head. But on the whole the award seems to me to be one-sided. For, although its says that Josephson and Oakes are to pay for the cattle delivered, and that the Lowes are to release them from all further claims, it says nothing as to the claims by Josephson and Oakes against the Lowes. The arbitrator may have thought that Josephson and Oakes were not entitled to damages for short delivery; but I do not think he has expressed such an opinion in the award, and the omission is fatal to the award.

Award set aside.

1866.

Ex parte JOSEPHSON and another.

1867.

The plaintiffs

LOWE and another against JOSEPHSON and another.

by agreement THIS

sold to the defendant

"2000 head of cattle, more or less, being a

general herd bred by us on the Mole Station, branded EL, and now running thereon. All

six months

old at the time of delivery to be given in. All old cows and, cripples to be

THIS was an action for goods sold and delivered, for interest and on accounts stated. Plea (1), never indebted; (2), that the plaintiffs and defendants entered into an agreement, which was in the words and figures following, that is to say-" We, Robert Lowe and Major Lowe, have this day sold to Joshua Frey Josephson and George Oakes two thousand head of cattle, more or less, being a general herd bred by us on the Mole calves under Station, Macquarie River, branded EL on near hip, and now running thereon. All calves under six months old at the time of delivery to be given in. All old cows. and cripples to be thrown out. Price to be twenty-five shillings per head; five hundred pounds cash at the time of delivery,and purchasers' promissory note for the residue at twelve months date from the day of final be delivered." delivery, with interest added at eight pounds per cent. The price was per annum. Delivery to be taken at Lowe's station "twenty-five shillings a (The Mole), on the Macquarie, during the months of March and May, in two lots (1865), weather permitting. Cattle to be branded by purchasers before removal from the station. No cattle suffering from disease to be delivered to purchasers. Dated at Sydney this 7th February, 1865. Robert Lowe, Major Lowe." Averment, that the defendants agreed to and accepted the terms of the agreement, and were always ready and willing to perform their part of the agreement; that in March, 1865, the plaintiffs delivered to the defendants 950

thrown out. And no dis

eased cattle to

head. £500

cash at the time of de

livery, and purchasers' promissory

note for the residue at twelve

months' date

from the day

of final deli

very, with interest added at 8 per cent."

Delivery to be taken at the station in March and May, in two lots," &c. Held, that the contract was a contract for the sale and purchase of the entire herd of cattle, then running at the Mole Station; and that the plaintiffs therein represented and warranted that the herd were in number about 2000.

The plaintiffs having delivered at the station only 1054; that is, 950 in March, and 104 in May; sued for the price of the cattle so delivered. The defendants pleaded never indebted, and, by way of cross-action (seeking damages for non-delivery of the deficiency), that the plaintiffs did not deliver the number agreed to be delivered. The jury having found a verdict for the plaintiffs on the general issue, and contingently assessed the damages on the plea, the Court allowed the plea to be amended by making it rely on the breach of warranty, and entered the verdict on that plea for the defendants, with the damages so assessed to be deducted from the plaintiff's damages on the issue of never indebted.

cattle from the Mole Station, and branded EL; and that in May they delivered the further number of 104 such cattle; and that the cattle so delivered were the goods sued for as goods sold and delivered, &c. The plea then stated that the 1054 head so delivered, were all the cattle which the plaintiffs delivered to the defendants under the agreement; and averred the fulfilment of all conditions precedent to entitle the defendants to a due fulfilment of such agreement; but that the plaintiffs only delivered 105 cattle, whereby the defendants had been deprived of profits, &c., which they were willing to set off. Issue thereon.

At the trial before Checke, J., in November, 1866— the facts as stated in the plea of cross-action having been proved, the learned Judge directed the jury that the contract to deliver 2000 head of cattle, more or less, was not a contract absolutely for the number of 2000 head, more or less, but was controlled by the other terms of the contract respecting the brands, and also the station on which the herd was running. Whereupon the jury found for the plaintiffs damages £1317 10s., with £154 15s. 5d. for interest. They also found for the defendants, on the plea of cross-action, damages £236 10s.

1867.

Lowe

and another

V.

JOSEPHSON

and another.

1866.

The Attorney-General, for the defendants, obtained December 4, a rule nisi for a new trial on the ground of misdirection, and that the jury had no right to give interest.

cause.

Sir W. Manning, Q.C., and Darley now showed This was a contract to deliver a herd of a particular description. The dominant intention of the parties was to sell the EL cattle running on the Mole Station, and the exact number was considered of secondary importance. The word, " more or less," must be construed liberally. Under such a contract the sellers would be bound to deliver whatever cattle were on the station; but the buyer would not be bound to take them unless the number was reasonably within the number specified; Cross v. Eglin (a). There the con(a) 2 B. & Ad. 106.

March 20,

1867.