Harvey v Devereux [1915] HCA 2; (1915) 19 CLR 291 (15 February 1915)

HIGH COURT OF AUSTRALIA

Harvey Plaintiff, Appellant; and Devereux Defendant, Respondent.

H C of A

On appeal from the Supreme Court of Tasmania.

15 February 1915

Griffith C.J., Isaacs and Gavan Duffy JJ.

L. L. Dobson, for the appellant.

C. S. Page, for the respondent.

Griffith C.J.

The only point raised before the Full Court was as to the meaning of the obligation to "render a full account of all fruit" contained in an agreement between the plaintiff and the defendant.

The defendant was the owner of certain orchards which he was desirous of selling, and the intending purchaser was anxious to know how much fruit he might expect to get from the orchards. The defendant was willing to make an agreement with the buyer of that year's crop of fruit from the purchaser of the orchards guaranteeing that the crop would be 6,000 cases, and a formal agreement was accordingly made. By it the defendant agreed with the plaintiff, who was the buyer of the fruit crop, to pay him 2s. 9d. a case for every case short of 6,000, and the plaintiff agreed to keep "an accurate account of all marketable fruit which the said orchards yield and of every bushel or case of fruit sold by him for the purpose of evaporating or making cider or other commercial purposes," and also to "render a full account of all fruit obtained from the said orchards to" the defendant certified to as correct by the plaintiff's accountant. After the end of the picking season the plaintiff sent to the defendant a document certified by his accountant declaring that the quantity of marketable fruit taken from the orchards was 2,322 cases of apples and 139 cases of pears, and further that the inferior fruit, describing it in the terms of the agreement, amounted to 442 cases. The defendant did not pay the 2s. 9d. a case for the deficiency, and thereupon the action was brought.

The objection is that the certificate given was not a "full account" as required by the agreement, and that that term meant a full detailed list of all the varieties of apples and pears taken from the orchards and the quantity of fruit picked of each kind, that is to say, the same kind of full account as a tradesman delivers of goods sold. On the other hand, it is urged that the "full account" intended by the agreement is an account showing in full the number of cases to be paid for by the defendant under the agreement in the event of there being less than 6,000. In my opinion that is the correct view. It is, of course, a simple matter of construction. It is to be noticed that the defendant was, under the agreement, entitled to inspection of the plaintiff's books of account showing the fruit taken from the orchard, and was also entitled to appoint a man to act for him as a tallyman while the picking was going on, but he did not do so. The question is whether the account delivered was a "full account." In my opinion it was. It was not strictly accurate, because fifty-five cases of plums and five cases of quinces were not included owing to a mistake on the plaintiff's part, but that matter was settled by agreement, and allowed for in the verdict. All, therefore, that is left to be decided is the meaning of the words.

Another incidental point raised was that the account delivered did not show with sufficient certainty how much was to be paid by the defendant. The certificate, as I have said, stated that there were 2,461 cases of marketable fruit consisting of 2,322 cases of apples and 139 cases of pears, and also 442 bushels of inferior fruit, and the plaintiff claimed that he was not bound under a stipulation in the agreement to give credit for more than one half of the number of cases of inferior fruit. It may be that the account or certificate was ambiguous; that upon one construction it did not show that the plaintiff had received less than the full number of 2,322 cases and 442 cases of marketable fruit, and on another construction that he had received a less number. But taking it most adversely to the plaintiff—which appears to have been the course adopted at the trial—it only appears that the defendant was bound to account for a less number than the plaintiff claimed. As a matter of fact the verdict was for a less sum than the least possible amount for which the defendant was liable on any construction of the certificate. The defendant urges that there should nevertheless be a nonsuit, with the only result that a fresh account and certificate would be given, and more expense incurred in bringing another action. There are no real merits in the defendant's case, and I am glad to be able to say that there are no legal merits. We are told that one of the learned Judges of the Supreme Court expressed his regret at being compelled to allow the nonsuit. I feel no regret in being able to say that the nonsuit should be set aside and that the verdict should stand.

The appeal should therefore be allowed.

Isaacs J.

I agree that the appeal should be allowed, and I share the opinion of the Chief Justice that there is no room for any regret so far as the merits are concerned. Whatever might be the view I might take as to the want of certainty in the notice given by the plaintiff to the defendant, that point is not now open because it was not raised at the trial or in the Full Court. One point only is really relied upon by the respondent, namely, that an account could not be a "full account" unless it was detailed. I agree with what has been said by the Chief Justice that that is not the meaning of a "full account," and, agreeing with him in that respect and also taking the view that that is the only point now open, I am of opinion that the appeal should be allowed.

Gavan Duffy J.

The nonsuit point intended to be reserved for the defendant at the trial was whether under the agreement to give him a "full account" he was entitled to a detailed statement of the fruit gathered. I do not think he was so entitled, and therefore I do not think there should be a nonsuit.

Appeal allowed. Order appealed from discharged. Motion for nonsuit dismissed with costs, and judgment restored. Respondent to pay costs of appeal.

Solicitors, for the appellant, Dobson, Mitchell & Allport.

Solicitor, for the respondent, C. S. Page.