Ockerby & Co Ltd v Watson [1918] HCA 64; (1918) 25 CLR 431 (17 October 1918)

HIGH COURT OF AUSTRALIA

Ockerby & Co Ltd Defendants, Appellants; and Watson Plaintiff, Respondent.

H C of A

On appeal from the Supreme Court of Western Australia.

17 October 1918

Barton, Gavan Duffy and Rich JJ.

Draper K.C. (with him Boultbee), for the appellants.

Sir W. James K.C. (with him Abbott), for the respondent.

The judgment of the Court, which was delivered by Barton J., was as follows:—

Oct. 17

Barton, Gavan Duffy and Rich JJ.

In our opinion the learned Chief Justice found, and rightly found, that the defendants agreed with the plaintiff to appoint him a sub-agent for the purpose of acquiring and handling 1916-1917 wheat, and warranted that as Government agents they would be able to do so. Had there been no such warranty the defendants might have successfully argued that their promise to appoint the plaintiff must have been understood by the parties as being conditional on the defendants themselves being appointed Government agents, but that argument will not relieve them from liability on their warranty. The effect of such a warranty is clearly stated by Vaughan Williams L.J. in Krell v. Henry[1]. He says:—"The real question in this case is the extent of the application in English law of the principle of the Roman law which has been adopted and acted on in many English decisions, and notably in the case of Taylor v. Caldwell13 B. & S., 826.. That case at least makes it clear that where, from the nature of the contract, it appears that the parties must from the beginning have known that it could not be fulfilled unless, when the time for the fulfilment of the contract arrived, some particular specified thing continued to exist, so that when entering into the contract they must have contemplated such continued existence as the foundation of what was to be done; there, in the absence of any express or implied warranty that the thing shall exist, the contract is not to be considered a positive contract, but as subject to an implied condition that the parties shall be excused in case, before breach, performance becomes impossible from the perishing of the thing without default of the contractor." The learned Lord Justice goes on to say[3]: "I do not think that the principle of the civil law as introduced into the English law is limited to cases in which the event causing the impossibility of performance is the destruction or non-existence of some thing which is the subject matter of the contract or of some condition or state of things expressly specified as a condition of it." But the liability still exists where there is present a warranty that the thing shall exist. On the evidence, especially that furnished by the plaintiff as to the interview of 11th October following upon the letter of 29th September, we think the defendants gave such a warranty.

Appeal dismissed with costs.

Solicitor for appellants, G. F. Boultbee.

Solicitor for the respondent, A. F. Abbott for H. Wilson, Geraldton.

[1] (1903) 2 K.B., at pp. 747 et seq.

[2] [1863] EngR 526; 3 B. & S., 826.

[3] (1903) 2 K.B., at p. 749.