Bucknell v O'Donnell [1922] HCA 40; (1922) 31 CLR 40 (15 September 1922)

HIGH COURT OF AUSTRALIA

Bucknell Defendant, Appellant; and O'Donnell Plaintiff, Respondent.

H C of A

On appeal from the Supreme Court of New South Wales.

15 September 1922

Knox C.J., Gavan Duffy and Starke JJ.

Alec Thomson K.C. and Curtis, for the appellant.

Holman K.C. and Cassidy, for the respondent, were not called on.

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

Knox C.J.,

Gavan Duffy and Starke JJ.

The first count of the declaration in this action alleges that in consideration that the plaintiff would supply and deliver certain ewes and lambs to Edmund Wentworth Daniel and Keith Edman Bucknell for a sum of money to be agreed upon, bearing interest at a rate to be agreed upon, between the plaintiff and Daniel and Keith Edman Bucknell, the defendant promised the plaintiff to pay to the plaintiff the said sum and interest thereon calculated at the rate aforesaid, and the plaintiff did supply and deliver the said ewes and lambs to Daniel and Keith Edman Bucknell and did agree with them upon the sum of money and the rate of interest, and all things happened and all conditions were fulfilled and all times elapsed necessary to entitle the plaintiff to the performance by the defendant of the said promise and to sue for the breaches thereof thereinafter alleged, and the said sum of money and interest thereon became due and payable by the defendant to the plaintiff, yet the defendant did not nor would pay any part of the said sum or the said interest to the plaintiff and the same remained due and payable by the defendant to the plaintiff. To this count the defendant pleaded non assumpsit and denial of breaches. At the close of the plaintiff's case counsel for the defendant applied for a nonsuit on the ground that the first count alleged an alternative right in the plaintiff against either Daniel and Keith Edman Bucknell or the defendant, that the evidence supported this allegation, and that, as the plaintiff had elected to sue Daniel and Keith Edman Bucknell and had recovered judgment against them, he was not at liberty to sue the defendant. The learned trial Judge refused to nonsuit. He was of opinion that the count alleged an independent promise by the defendant to pay for the sheep if they were delivered to Daniel and Keith Edman Bucknell, that there was evidence for the plaintiff which, if believed, would justify the jury in finding the issue in that count in his favour, and that in that view the judgment recovered by the plaintiff against Daniel and Keith Edman Bucknell did not debar the plaintiff from recovering in this action. The jury having found a verdict for the plaintiff on the first count, the defendant applied to the Supreme Court in Full Court for an order to enter a nonsuit or a verdict for him on that count, and now appeals to this Court against the dismissal of that application.

In our opinion the decision of Ferguson J. on the application for a nonsuit was correct; and this appeal consequently fails. We think the law applicable to this case is correctly stated by Lush J. in Isaacs & Sons v. Salbstein[1]:—"There is, however, no foundation whatever for the contention that because A recovers a judgment against B, who in truth never was a party to the contract at all, he cannot afterwards recover judgment on that contract against C, who was the real contracting party. Where judgment is recovered on a simple contract, that contract no doubt merges in the contract of higher degree which is evidenced by the judgment and which is a contract of record. But there is no ground for saying that a contract between A and B, although it is a contract of record, merges a contract between A and Z. They are two different contracts and therefore give rise to two different causes of action."

For these reasons we are of opinion that this appeal should be dismissed with costs.

Appeal dismissed with costs.

Solicitors for the appellant, Villeneuve-Smith & Dawes.

Solicitors for the respondent, Sly & Russell.

[1] (1916) 2 K.B., at p. 143.