Bear v Lockyer [1915] HCA 6; (1915) 19 CLR 288 (22 February 1915)

HIGH COURT OF AUSTRALIA

Bear Plaintiff, Appellant; and Lockyer and Another Defendants, Respondents.

H C of A

On appeal from the Supreme Court of Victoria

22 February 1915

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

Bryant and Holroyd, for the appellant,

McArthur K.C. and Starke, for the respondents,

Griffith C.J.

The plaintiff thought fit to launch his case as one for not accepting goods, the goods being described as "crude arsenic," which appears to be a deposit from the vaporized fumes of arsenical ore collected in a flue after roasting. The price agreed upon was £2 16s. 6d. a ton. The quantity alleged by the plaintiff as being that which the defendants refused to accept is something less than 150 tons. Assuming, contrary to the opinion which the learned Judge formed at the trial, that the defendants had improperly refused to accept that quantity of crude arsenic, the measure of damages is the difference between the contract price and the price at which the goods could have been sold by the plaintiff. On that point the only evidence which he offered was that the crude arsenic not accepted might have brought £2 16s. a ton in the market. On that evidence it is impossible to affirm that the plaintiff lost more than sixpence a ton by the refusal of the defendants to accept the goods.

The learned Judge thought that none of the material offered to the defendants and which he refused to accept was crude arsenic within the meaning of the contract. I express no opinion on that point. Even if some of it was crude arsenic it would be impossible to make out that the damages amounted to £300. All this appears on the face of the case. The appeal therefore would not lie without special leave, which was refused.

Under these circumstances there is no alternative but to dismiss the appeal.

Barton J.

I agree.

Isaacs J.

I agree.

Gavan Duffy J.

I agree.

Appeal dismissed with costs.

Solicitors, for the appellant, Evans & Masters.

Solicitor, for the respondents, A. Phillips for D. Clarke, Ballarat.