1692 GOODS. [6 GEO, V.

GOODS ACT 1915.

'•eolQw.

nm, SaleofQeeds Acti

short title

itepetL). Schedule.

PART I.— • Sale of Goods.

6 GEORGE V.. An Act to consolidate the Law relating to Dealings in No. 2663. i~i -i

(jOOClS.

[6th September, 1915.]

BE it enacted by the King's Most Excellent Majesty by and with the advice and consent of the Legislative Council and the

Legislative Assembly of Victoria in this present Parliament assembled and by the authority of the same as follows (that is to say):—

1- This Act may be cited as the Goods Act 1915, andshall come iS™dh?ston.eilt *n*° operation on the first day of October One thousand nine hundred

and fifteen, and is divided into Parts and Divisions as follows:— ''Division 1.—Preliminary ss. 3-5.

Division 2.—Formation of the Contract ss. 6-20. Division 3.—Effects of the Contract ss. 21-31. Division 4.—Performance of the Contract ss.

32-42. Division 5.—Rights of Unpaid Seller against

the Goods ss. 43-52. Division 6.—Actions for Breach of the Contract

ss. 53-58. Division 7.—Supplementary ss. 59-62.

PART II.—Consignees Mercantile Agents Documents of Title to Goods Bills of Lading ss. 63-79.

PART III.—Effect of Execution and Conviction on Title to Goods

PART IV. Trading Stamps or Coupons ss. 82-85. PART V. Merchandise Marks ss. 86-103.

2. The Acts mentioned in the Schedule to this Act to the extent to which the same are thereby expressed to be repealed are hereby repealed. Such repeal shall not affect anything done or suffered or any right title or interest acquired or accrued before the commencement of this Act orany legal proceeding or remedy in respect of any such thing right title or interest.

No. 2663.] GOODS.ACT 1915. 1693

PART I.—SALE or CTOODS.

DIVISION 1.—PKEL1MINARY.

3, (1) In the construction of this Part unless inconsistent with §•**«/, i. • the context or subject-matter— • ».s.

Action includes counterclaim and set-on : s« 6« & »T " Buyer" means a ]>erson who buys or agrees to buy goods : vict,«. 71 s. 62.

Contract of sale includes an agreement to sell as well as a sale :

"Delivery" means voluntary transfer of possession from one person to another :

" Document of title has tiie same meaning as it has in. Part II. of this Act:

" Fault" means wrongful act or default: " Future goods " mean goods to be manufactured or acquired by

the seller after the making of the contract for sale : " Goods " includes all chattels personal^ other than things i n ­

action and money. The term includes emblements and things attached to or forming part of the land which are agreed to be severed before sale or under the contract of-sale :

" Mercantile Agent" has the same meaning as it has in Part rlJL. of this Act :

"Plaintiff includes defendantcounterclaiming : :. "Property" means the general property in goods and not

merely a special property : ^ • vjuaiuy of goods memoes their state or condition :

delivery : " Seller means a person who sells or agrees to sell goods :

, , , i . -i . « 1 1 1

" Specific goods means goods identified and agreed upon at rl i "i 1 •• pr i-fsilpiR waAc • suif)

'<W i " a a9TPt>Tne> + ith rffpren^A tx\ (rAnds which are the subject of a contract of sale but collateral to the main purpose of such contract the breach of which gives rise to a claim for damages but not to a right to reject the goods and treat the contract as repudiated.

C2) A thing is deemed to be done in "good faith within the meaning 01 this Part when it is in fact done honestly whether it be done negligently or not.

(3) A person is deemed to be insolvent within the meaning 01 this Part who either has ceased to pay liis debts in the ordinary course of business or cannot pay his debts as they become due whether he has committed an act 01 insolvency or not.

(4) Goods are in a "deliverable state" within the meaning of this Part when they are in such a state that the buyer would under the contract be bound to take delivery of them.

(a) Whether payment for the supply of electric to be determined by evidence as to the nature of light can be enforced on ft count for goods and electricity.—Draper v. Friend, 16 A.L.T., SOI. chattels sold and delivered is a question of fact

1694 GOODS ACT 1915. [,6 GEO. V.

Sauof 4 . (1) The rules in insolvency relating to contracts of sale shall t, 6. continue to apply thereto notwithstanding anything in this Part Savings. c o n t a i n e d . o.7i8.«i" (2) The ruies of the common law including the law mercham

save in so far as they are inconsistent with the express provisions of this Part and in particular the rules relating to the law of principal and agent and the effect of fraud misrepresentation duress or coercion mistake or other invalidating cause shall continue to apply to contracts for the sale of goods.

s&vingoi 5. (1) Nothing in this Part or in any repeal effected hy this Act unrepealed „i 11 r£ A i i „ „_•.„. i ^t i" ~ A I II C „ i i. „ 1 *.t „ i» Acts: snail aneet tne enactments relating to bills ot sale contracts ot sale ib. i. 6. followed by contracts of letting and hiring liens on crops liens on

wool stock mortgages or assignments of book debts or any enactment relating to the sale of goods which is not expressly repealed by this Act.

Exemption of ,(2) The provisions of this Part relating to contracts of sale do way of seourity. not apply to any transaction in the form of a contract of sale which

is intended to operate by way of mortgage pledge charge or other security.

DIVISION 2.—FOKMATION OF THE CONTEACT.

Contract of Sale. Snie and 6. (1) A contract of sale of goods is a contract whereby the o rooment to seller transfers or agrees to transfer the property in goods to the ib.», e. buyer for a money consideration called the price. There may be a seeib. s. l, contract of sale between one part owner and another.

(2) A contract of sale may be absolute or conditional. (3) Where under a contract of sale the property in the goods is

transferred from the seller to the buyer the contract is called a sale ; but where the transfer of the property in the goods is to take place at a future time or subject to some condition thereafter to be fulfilled the contract is called an agreement to sell.

(4) An agreement to sell becomes a sale when the time elapses or the conditions are fulfilled subject to which the property in the goods is to be transferred.

Ib. t. 7. lb. 9. 2»

Capacity to buy 7. Capacity to buy and sell is regulated by the general law *" *° * concerning capacity to contract and to transfer and acquire property :

Provided that where necessaries are sold and delivered to an infant or to a person who by reason of mental incapacity or drunkenness is incompetent to contract he must pay a reasonable price therefor.

"Necessaries" in this section mean goods suitable to the condition in life of such infant or other person and to his actual requirements at the time of the sale and delivery.W

Formalities of the Contract.

bow'mod*e9*k ®" Subject to the provisions of this Part and of any Act in that JJ t s behalf a contract of sale may be made in writing (either with or ib.i.a. without seal) or by word of mouth or partly in writing and partly by

(a) An infant about to many may make himself liable for goods reasonably required for the marriage or for the joint establishment after marriage.—Quiggan v. Baker, 1906 V.L.R., 259.

No. 2663.] GOODS ACT 1915. 1695

word of mouth or may be implied from the conduct of the parties : saitoo / Provided that nothing in this section shall affect the law relating to a<wd* ActlSM-corporations.

9. (1) A contract for the sale of any goods of the value of Ten contract tot pounds or upwards shall not be enforceable by action unless the .buyer odV'and shall accept part of the goods so sold and actually receive the same or "P™1^ srive something" in earnest to bind the contractor in part payment or/*'**0* unless some note or memorandum in writing of the contract be made «. IT and o GOO. and signed by the party to be charged or his agent in that behalf/") *c'14 3'7*

(2) The provisions of this section apply to every such contract s. 210. notwithstanding that the goods maybe intended to be delivered at'S60 '* i-14

some future time or may not at the time of such contract be actually 59 «&7Vict-made procured or provided or fit or ready for delivery or some act may *•71 *• *• be requisite for the making or completing thereof or rendering the f % ^ a ' 1 1 0 S

same fit for delivery.**1

(a) A. signed and sent to B. a letter offering to tall him goods of the value of £10 and upwards on conditions therein specified. B., by a sub­sequent lotter, acceptod A/a offer.

Held, that the provisions of the section requiring a note or memorandum in writing of the contract did not preclude B. from enforcing the agreement to sell.—Patterson v. Dolman, lflOS VX.E., 354.

(6) A. verbally ordered the plaintiff, a coach-builder, to build a buggy for him, no price being fixed. A. subsequently called at the plaintiff's workshop and dirocted' the arrangement of the brake to bo altered, and that a particular kind of brake-block should be put on. When A. called at the workshop the buggy was ready for delivery except for tho alterations directed by A. and for one coat of varnish. The alterations were duly made, but A. did not see or approve of then), or have any further communication with the plaintiff. Held, that there had been no acceptance or actual receipt by A. within the meaning of this section. —Oazzard v. BuUarat 2Ytt$(ees, <&&, Co., 8 A.L.R., 246.

The following cases were decided under sections 210 and 211 of the Instruments Act 1890 and the corresponding previous enactments :—

An appellant sent an order in writing to the respondent as follows:—" You will please supply the order my son will give you, and oblige— yours, Isaac Lyons." The particulars of an apparatus required had already been given by the appellant's manager. The appellant's son then ordered that such apparatus should be made. Before it was completed he countermanded the order. Upon plaint in County Court for work and labour there was a verdict for more than £10. On appeal: Held, that this was a contract which when completed would remit in the hUxle of a ohattel of tho value of more than £10 and was not tho subjoct-matter of a count for work and labour; that a memorandum in writing of the contract was necessary; and that the memorandum in this ease was insufficient.—Lyons v. Hughes 1 V.L.B. (L.), 1.

A. offerod to B. certain sheop and lambs of a particular class at a price exceeding £10 for the whole. B. agreed to bike them if after inspection

he should approve of them. They were inspected and approved of, and then remained in the hands of A. to oblige B. and at his request. While in the hands of A. some died. B. sent an agent with a written authority to receive the sheep and lambs offered, inspected, and approved of, stating the number. A. saw the written authority. He delivered to the agent all offered, inspected, and approved of, except those which had died, and excepting also a few lambs.which he kept back. B. refused to take what had been delivered to the agent. • A. sued B. for the price as goods sold and delivered, and on the issue of never indebted gained a verdict. On• rule nisi for nonsuit: add, that there had been no acceptance by B. within this section. The delivery to B.'s agent of fewer sheep and lambs than those inspected and approved of was one which the agent's authority forbade him to take as A. knew and one which B. repudiated as soon as possible. The former acceptance by B. when he left the animals with A. was an acceptance only of tlio lot as tk whole, and not such an acceptanco of each individual sheep or of any portion of the whole lot as could enure to make a new contract concerning the lesser number delivered to the agent. Adams v. Brown, 2 W. & W. (1*) 176.

H. and O. ordered of W. W. & Co. iron pipes to be delivered by the railway at Ballarat. W. W. & Co., forwarded pipes by train, but H. and O., deeming them not according to the weight, left tho pipes lying at the station to the order of W. W. & Co. The correspondence did not expressly or by reference identify any par­ticular pipes. In an action for goods sold, &c., W. W. & Co. recovered the price of the pipes. On rule for nonsuit: Held, that there had been no acceptance to complete a sale and delivery; that extrinsic evidence to identify any particular pipes as those bargained and sold under the corres­pondence could not be given; and that, as the correspondence alone did not identify any par­ticular pipes it did not constitute a memorandum in writing of the contract sufficient within the section.—Wfflrie v. Hunt 1 W.W. & a'B. (L.), 66.

Where there is no sufficient memorandum of the bargain for the sale of goods, the mere receipt

1696 GOODS ACT 1915. [6 GEO. V.

Sale of (hods J 0(1196.

(3) There is an acceptance of goods within the meaning of this section when the buyer does any act in relation to the goods which recognises a pre-existing contract of sale whether there be an acceptance in performance of the contract or not.

Existing or future goods. lb. t.10. 68 & 67 Vict, o. 71 a. 5.

Subject-matter of Contract. 10. (1) The goods which form the subject of a contract of sale

may be either existing goods owned or possessed by the seller or future goods.

(2) There may be a contract for the sale of goods the acquisition of which by the seller depends upon a contingency which may or may not happen.

(3) Where by a contract of sale the seller purports to effect a present sale of future goods the contract operates as an agreement, to sell the goods.

Goods which 11 . Where there is a contract for the sale of specific goods,-and it i ii goods without the knowledge of the seller have perished at the ik B.6. time when the contract is made the contract is void.

and retention of the goods for a few days by the purchaser is evidence upon which a jury may find that the purchaser accepted them.—-Service v. Walker, 3 V.L.R. (L.), 182.

Where a purchase was made on behalf of a company of certain machinery, of which delivery Was to be taken where it lay, and part was re­moved by a carrier on behalf of the company, but was stopped in transitu. Held, that this did not show an acceptance within the section so as to Mnder a note in writing unnecessary.-—Mclver v. Dahe Co., 5 V.L.B. (!*•), 449.

An agent authorized to purchase goods for a principal for use upon the principal's premises, has no implied authority to direct their delivery elsewhere; if, after selecting and purchasing goods, he give such direction, delivery at the place so directed does not amount to acceptance within the section.—•Miich^U v. Watson, 6 V.L.R. (L.), 493.

I t is not necessary that the signature should be after or at the end of every part of a paper which it purports to cover.—Gladstone v. Batt, 1 W. & W. (E.), 277.

Where the name of the purchaser of several consecutive lots sold a t an auction was entered in the auctioneer's book, in the proper column, at length for the first lot and the other lots were marked " D o . " in the proper column under the name of the purchasor, the signing of " Do." does not constitute a sufficient signature under the section to bind the purchaser as to the lots signed " Do""— Williams v. Ross, 2 W. & W. (L.), 285.

An auctioneer employed his clerk at a sale by auction to act as amanuensis by writing down in the sales book the name of each person respec­tively to whom the lots were knocked down. In an action for goods sold and delivered, per Stateell, G.J.:—"I should have thought that , where the auotioneor's clerk acted as amanuensis and wrote down the names of the purchasers, these names being first called out and no dissent being made, the bidders would be bound. I t would

be necessary, however, that the names should be called out by the auctioneer's clerk, to show that he was aware of the person to whom the goods were knocked down. There is little doubt that this was done in this case, but there is no direct evidence of it. There is, however, evidence of ratification by the defendant. His letter de­scribing himself as a purchaser cannot be got over."—Moss v. Cohen, 3 V.R. ih,), 205.

Quaere, whether, and in what manner, an auctioneer's clerk can bind a successful bidder by writing his name in the auctioneer's book during the auction sale.—Per Fellows, J., Service v. Walker, 3 V.L.R. (L.), 182.

Where the auctioneer's clerk writes the names of purchasers in the auctioneer's book, a purchaser is not bound, in the absence of evidence that he knew of this mode of proceeding and by acquiescence authorized it.—Hill v. Willis, 6 V.L.R. (L.), 193. But see now the Auction Sales Act 1915, section 42.

At a sale by auction the auctioneer warranted certain flour to be first-class Rochester flonr; some of it was knocked down to the defendant, whose name was entered in the book by the auctioneer's clerk. A bought note was after­wards sent to the defendant, describing the flour as "Rochester flour" and omitting "first-class " together with a bill for acceptance for the price. The defendant refused to accept either the note or the acceptance, and declined to take the flour. Held, that there was no evidence of any contract to satisfy the section and embody­ing the warranty on which the plaintiff relied.— Pratt v. Rush, 5 V.L.R. (L.), 421.

In an action by J. F . against M. M. for goods sold, &,o., there was a verdict for the plaintiff. Defendant appealed on the ground that there was no contract under this section. The goods were sold by T., on behalf of J . F . to M. M., the bought and sold notes being signed by T. HtH, there was evidence of a contract, and appeal dis­missed.—Moss v. Fowler, 3 A.J.R., 122.

No. 2663.] GOODS ACT 1915. 1697 I . • ' . — - -

12. Where there is an agreement to sell specific goods, and saieo/ooodd subsequently the goods without any fault on the part of the seller or ' J 6'}2 i ' i i j> . i - i . .1 i .1 - - Goods perishing buyer perish before the risk passes to the buyer, the agreement IS boforesaicimt thereby avoided. __ ' J^ sol^.B™0lnB,1

TilG Pl'ice. 56 A 67 vict. 1 0 / i \ rpi „ ; „ „ , • „ , , 4. * „.? i ™ u« -ft l u j.i,„ • • 7 1 a ' 7 ' l o . ^JJ llie price in a contract ot sale may be nxeu by the jiiajrtninment

contract or may be left to be fixed in manner thereby agreed or may of price-be detenuiucd by the course of dealing between the parties. Ib- «.13-

(2) Where the price is not determined iu accordance with the '8' ' foregoing provisions the'bnyer must pay a reasonable price. What is a reasonable price is a question of fact dependent on the circumstances of each particular case.

14. (1) Where there is an agreement to sell goods on the terms Agreement to that the price is to be fixed by the valuation of a third party, and such M ftt*B ua on

. 1 * 1 L l . i i • ! . . ,1 , . /O. #.14.

third party cannot or does not make sneh valuation, the agreement is [t> B tf avoided: Provided that if the goods or any part thereof have been delivered to and appropriated by the buyer he must pay a reasonable price therefor.

(2) Where such third party is prevented from making the valuation by the fault of the seller or buyer the party not in fault may maintain an action for damages against the party in fault.

Conditions and Warranties. 15. Unless a different intention appears from the terms of stipulations M

the contnict, stipulations as to time of payment are not deemed to be t 0 t m o ' of tlie essence of a contract of sale. Whether any other stipulation as lb ia to time is of the essence of the contract or not depends on the terms of the contract.'0*

16. (1) Where a contract of sale is subject to any condition to be when condittoD fulfilled by the seller the buyer may waive the condition or may elect Jj'0^^llt<!<'"* to treat the breach of such condition as a breach of warranty and not ib.*.ie. as a ground for treating the contract as repudiated.* ib.s.n.

(2) Whether a stipulation in a contract of sale is a condition the breach of which may give rise to a right to treat the contract as repudiated, or a warranty the breach of which may give rise to a claim for damages but not to a right to reject the goods and treat the contract as repudiated, depends in'each case on the construction of the contract. A stipulation may be a condition though called a warranty in the contract.***

(a) In performance of an agreement whereby (6) By a contract for the sale of ft specifio A. agreed to soil and B. agreed to purchase 2,000 flock of sheep of a specified number at a certain bags of maize, a t 2s. 7d. per bushel, delivered price per head of those delivered and accepted, f.o.b. Melbourne, shipment spread over Janu- it was provided that the sheep should be delivered ary and February, 500 bags January, 1,500 at a place between 200 and 300 miles from where February, terms net cash against, documents, the sheep then were, and to which the sheep A. in January delivered 200 bags f.o.b. Melbourne, would have to travel on foot, and that the pur-biit owing to a dock strike, was unable to deliver chaser should have the option of rejecting all the remaining 204 bags in January. B. refused sheep unfit to travel. By the law of Queens-to accept and pay for the 296 bags. land travelling sheep are required to travel a t

Held, that A. was entitled to deliver the 500 the rate of six miles per day. The destination bags in instalmonts, and B. was bound to accept of the sheep was unknown to the vendor, but and pay for each instalment as delivered, pro- it was within the contemplation of the parties vided A. had not repudiated his obligations under that they would have to travel a considerable the contract.—Osfiom v. Davidson, 1911 V.L.B., distance. The purchaser paid a deposit of 416. £250. In an action by the purchaser for return

VOL. II.—-3 A

1698 GOODS ACT 1915. [6 GEO. V.

Act ISO*.

Implied undertaking as to title &c. lb. s. 17. 56 and 67 Vict, c. 71 s. 12.

Sale by description. Jo.e. 18. lb. s. 13.

(3) Where a contract of sale is not severable and the buyer has accepted, the goods or part thereof, or where the contract is for specific goods the property in which lias passed to the buyer, the breach of any condition to be fulfilled by the seller can only be treated as a breach of warranty and not as a ground for rejecting the goods and treating the contract as repudiated unless there be a term of the contract express or implied to that effect.

(4) Nothing in this section shall affect the case of any condition or warranty fulfilment of which is excused by. law by reason of impossibility or otherwise.

17 . In a contract of sale, unless the circumstances of the contract are such as to show a different intention, there is—

(i) An implied condition on the part of the seller that in the case of a sale he has a right to sell the goods and that in the case of an agreement to sell he will have a right to sell the goods at the time when the property is to pass:

(n) An implied warranty that the buyer shall have and enjoy quiet possession of the goods :

(in) An implied warranty that the goods shall be free from any charge or encumbrance in favour of auy third party not declared or known to the buyer before or at the time when the contract is made.

18 . When there is a contract for the sale of goods by description there is an implied condition that the goods shall correspond witli the description ; and if the sale be by sample as well as by description it is not sufficient that the bulk of the goods corresponds with the sample if the goods do not also correspond with the description.

4 V* "r -l^T»

implied 19 . Subject to the provisions of this Part and of section one qu"iity°or ** 0 hundred of this Act and of any Act in that behalf there is no implied

warranty or condition as to the quality or fitness for any particular purpose of goods supplied under a contract of sale, except as follows(aJ:—

(i) Where the buyer expressly or by implication makes known to the seller the particular purpose for which the goods are required so as to show that the buyer relies on the seller's skill or judgment and the goods are of a description which *it is in the course of the seller's

of the deposit and for damages for non-delivery of the sheep, it appeared that the vendor refused to deliver any of the sheop unless the purchaser would agree to accept and pay for sheep which were in fact unfit to travel more than one day's stage.

Hdd, that this amounted to a breach of con* tract by the vendor entitling tho purchaser to a return of tho deposit.

Held, also, that a lefusal by the purchaser to accept somo of the sheop which he should have accepted, which refusal the jury found tho pur­chaser was willing to reconsider, did not entitle the vendor to refuse to deliver the sheep which the purchaser was willing to accept.

Held; also, that even had the refusal been ab* solute and unjustifiable, provided that it was not of such a number as to go to the foundation of the contract, the vendor would not have been entitled to refuse to deliver those sheep which the purchaser was willing to accept, his remedy being under section 39 of tho Sale of Goods Act 18EM) (Q.), corresponding with this sub-section. —Francis v. Lyon, 4 C.L.R., 1023.

(a) The complainants were accustomed to sell cattle in the open market, such cattle being con-signed to them by the owners for the purpose of sale. I t was the practice of the complainants to have all cattle examined by a Government inspector before sale. The defendant was a

No. 2663.] GOODS ACT 1915. - 1699

busiucss to supply (whether he be the manufacturer Or Sale of Goods

not) there is an implied condition that the goods shall be Actls<K-reasonably fit for such purpose: Provided that in the case of a contract for the sale of a specified article under • its patent or other trade name there is no implied condition as to its fitness for any particular purpose:

(n) Where goods are bought by description from a seller who deals in goods of that description (whether he be the manufacturer or not) there is an implied condition that the goods shall be of merchantable quality : Provided that if the buyer has examined the goods there shall be no implied condition as regards defects which such examination ought to have revealed:

(m) An implied warranty or condition as to quality or fitness for a particular purpose may be annexed by the visage of trade :

(IT) An express warranty or condition does not negative a warranty or condition implied by this Part unless inconsistent therewith.

Sa Ic fry Samp h. 20. (1) A contract of sale is a contract for sale by sample snie by sample,

where there is a term in the contract express or implied to that '*• «•w-effect. <i?T?s.7i5.lot'

(2) In the case of a contract for sale by sample— (a) There is an implied condition that the bulk shall correspond

with the sample in quality : (b) There is an implied condition that the buyer shall have a

reasonable opportunity of comparing the bulk with the sample :

(c) There is an implied condition that the goods shall be' free -from any defect rendering them unmerchantable which would not be apparent on reasonable examination of the sample."'

butcher, and bought the cattle for the purposes best quality and strictly in accordance with the of selling the carcasses in the market for human order and sample and in every respect to the consumption. Somo of the carcasses after the satisfaction of the chief storekeeper.'* Condition purchase were condemned as being unfit for 12 provided that—" Notwithstanding that any of human consumption, and in an action for the the stores supplied may have been provisionally price of the cattle the defendant relied on the signed for or accepted by the receiving officer, or section alleging that there was an implied warranty that they may have been paid for, the chief store-that the cattlo were fit for human consumption. keeper shall have full power to reject any of such The justices gave a verdict for the defendant. stores, or any portion thereof, which in his judg-Upon an order to review such decision : Held, ment are not in every respect in accordance with that thero was no express warranty and that the this contract, and such rejection may take place facts did not justify the inference of an implied at any time and at any place until the chief store-warranty under the Scotion. —Pow6 TS v. Glen,' keeper shall have expressly certified in writing denning, 23 V.L.It., 144, that the whole of such stores so supplied .under

(a) The plaintiff, by writing under seal, con- the particular order have been found after com-tracted to supply the defendants certain stores plete examination and testing to be in every to the order in writing of the chief storekeeper of respect in accordance with this contract." The the defendants under agreed conditions and in condition also provided that notice of rejection strict accordance with a sample. Condition 10 should be given to the contractor in writing by provided that where " no particular make of the chief storekeeper and that the contractor stores is specified the contractor may supply the should remove the rejected goods within a certain stores of any make provided that they (in the time and should replace them with stores in every judgment of the chief storekeeper) be of the very r e s e c t in accordance with the contract failing

3 A 2

1700 GOODS ACT 1915. L,6 GEO. V.

Salt of Ooodt AM 1896 s,2.1. floods miut be ascot1 taiiied. 56 & 57 Vict o. 71 e. .8.

DIVISION 3.—EFFECTS OF THE CONTRACT. *

Transfer of Property as between Seller and Buyer.

2 1 . Where there is a contract for the sale of unascertained goods no property iti the goods is transferred to the buyer unless and until the goods are ascertained.

22 . (1) Where there is a contract for the sale of specific or niw'iucteJte"* ascertained goods the property in them is transferred to the buyer at to inis. such time as the parties to the contract intend it to be transferred. /6-«.22* (2) For the purpose of ascertaining the intention of the parties lb.s.iT. regard shall be had to the terms of the contract the conduct of the

parties and the circumstances of the case.'"*

nuies for 2 3 . Unless a different intention appears the following are rules intention. for ascertaining the intention of the parties as to the time at which a. s.23. the property in the goods is to pass to the buyer :— Ib.8-18. Ilnle 1. AVIicre there is an unconditional contract for the sale of

specific goods in a deliverable state the property in the goods passes to the buyer when the contract is made, and it is immaterial whether the time of payment or the time of delivery or both be postponed.

Rule 2. Where there is a contract for the sale of specific goods and the seller is bound to do something to the goods for the purpose of putting them into a deliverable state the property does not psiss until such thing be done and the

* buyer has notice thereof. Rule 3. Where there is a contract for the sale of specific goods

in a deliverable state, but the seller is bound to weigh measure test or do some other act or thing with reference to the goods for the purpose of ascertaining the price, the property does not pass until such act or thing be done and the buyer has notice thereof..

which the chief storekeeper might purchase stores which in his opinion were suitable, at the con­tractor's risk. Condition 13 provided that pay­ment should be made " on the certificate in writing of the chief storekeeper."

Stores were supplied by the plaintiff which were not in the opinion of the chief storekeeper within the meaning of condition 10 " of the very best quality or strictly in accordance with the order and sample," and were not " i n every respect to his satisfaction " and they were in consequence rejected by hint under condition 12 ; and no certificate in writing under conditions 12 or 13 was given by him.

Held, that the plaintiff could neither recover the price of the stores in an action, for goods sold and delivered or for goods bargained and sold, nor maintain an action against the defendants for refusing to accept the stores supplied.—Briscoe and Company Limited v. Victorian Railways Com-mi$$ioners, 1907 V.L.R., 523.

(a) The appellants purchased a quantity of potatoes from the respondent in Tasmania, under a contract which provided—(1) That the accept­ance of the potatoes was to be " subject to their being passed by the inspectors of the Tasmanian

and other Australasian Governments ; " and (2) that " if a rejection of such potatoes or any part is made within fourteen days after date of delivery, and notice of such rejection be given by the buyer to the seller within 48 hours of the time when such buyer receives notice of rejection, either by posting such notice or otherwise, then the following consequences will ensue. The sale as to such part rejected or the whole of the potatoes if rejected shall be void." The appellants submitted the potatoes to the Tasmanian inspector, who passed them. They then shipped the potatoes to Mel­bourne, intending to submit them to the Victorian inspector. But before this could be done the Victorian Government had by an act of State absolutely prohibited the importation of potatoes from Tasmania.

Held, that the condition as to inspection by the Victorian inspector not having been performed, the contract was not avoided either wholly or in part, though the. performance of the condition had been rendered impossible by a fact, viz., an act of State of the Victorian Government, for which neither of the parties to the contract was responsible.—Maine v. Coulter, 19 A.L.R., 99.

No. 2663.] GOODS ACT 1915. 1701

Rule 4. When goods are delivered to the buyer on approval or saieofGootu on (" sale or return " or other similar terras the property Ati 189ft" therein passes to the buyer—

(a) When he signifies his approval or acceptance to the seller or does any other act adopting the transaction :

(b) If he does not signify his approval or acceptance to the seller, but retains the goods without giving notice of rejection, then if a time has been fixed for the return of the goods on the expiration of such time and if no time has been fixed on the expiration of a reasonable time. What is a reasonable time is a question of fact.

Rule 5. (1) "Where there is a contract for the sale of unascertained or future goods by description and goods of that description and in a deliverable state are unconditionally appropriated to the coutract either by the seller with the assent of the buyer or by the buyer with the assent of the seller, the property in the goods thereupon passes to the buyer. Such assent may be express or implied and may be given either before or after the appropriation is made.

(2) Where in pursuance of the contract the seller delivers the goods to the buyer or to a carrier or other bailee (whether named by the buyer or not) for the purpose of transmission to the buyer and does not reserve the right of disposal he is deemed to have unconditionally appropriated the goods to the contract.

24. (1) Where there is a contract for the sale of specific goods EcMrvattoaof or where goods are subsequently appropriated to the contract the seller J lp'" ], may by the terms of the contract or appropriation reserve the right of i&. ».24. the disposal of the goods until certain conditions are fulfilled. In «• * S7 vitt.

1 i _ * , J _ l j _ l * j _ l 1 1 * fl I l I J L J L T 1 i ^ * * S . l W *

snen case notwithstanding the delivery ot the goods to the buyer or to a carrier or other bailee for the purpose of transmission to the buyer the property in the goods does not pass to the buyer until the conditions imposed by the seller are fulfilled.

(2) \V here goods are shipped and by the bill of lading the goods are deliverable to the order of the seller or his agent the seller is primd facie deemed to reserve the right of disposal.

(3) Where the seller of goods draws on the buyer for the price and transmits the bill of exchange and bill of lading to the buyer together to secure acceptance or payment of the bill of exchange the buyer is bound to return the bill of lading if he does not honour the bill of exchange, and if he wrongfully retains the bill of lading the property in the goods does not pass to him.

25. Unless otherwise agreed the goods remain at the seller's risk Riskfwfta until the property therein is transferred to the buyer, but when the^JjJ^Srt-property therein is transferred to the buyer the goods are at the buyer's «, 1,25. risk whether delivery has been made or not: Provided that where n*-*-20-delivery has been' delayed through the fault of either buyer or seller the goods are at the risk of the party in fault as regards any loss

1702 GOODS ACT 1915. [,6 GrEO. V.

StUeojGoodi which might uot have occurred but for such faull: Provided allo Act 18w. j.^aj. nothing in this section shall affect the duties or liabilities of either

seller or buyer as a bailee of the goods of the other party<**.

Transfer of Title.

saving of other 26 . Nothing in this Part unless specially so expressed shall n t SB affec,—

(a) The provisions of Par t I I . of this Act or any enactment enabling the apparent owner of goods to dispose of them as if he were the true owner thereof :

(b) The validity of anir contract of sale under any special comlon law or statutory power of sale or under the order on l court of aompetent jerisoiction.

Saioby person 2 7 . Subject to the provisions of this Part and of any express notthg owner. ^nc*^i.^^.** ^.rli^..^ m^i^A?* rti.rt ft-ij 1.... _ *-rt«^^n T.T!./> lo i.r>f fU« rt„.„/i-ib i 28 enactment wnere gooas aie soici uy a person wno is not tne owner seeBB A57Viot, thereof and who does not sell them under the authority or with the c. 7i ea .i. ccosenn oo t th owner, the buyee aaquiree nn bettte title t t the

goods than the seller had unless the owner of the snoods is by his • conduct precluded from denying the seller's authority to sell.{6>

o

Market overt. 2 8 . (1) Where goods are sold in market overt according to the n. 8.27. usage of the market the buyer acquires a good title to the goods ib. s. 22. provided he buys them in good faith and without notice of any defect

or want of title on the part of the seller, Cuttle. (2) Nothing in this section shall affect the law relating to the

sale of cattle.

Salo unaar 2 9 . When the seller of goods has a voidable title thereto but vo »2e '1 ' s ' ' y e s n<^ beeu avoided at the time of the sale the buyer ib.s.23. ACTi ?,, e>00 t J?. ?i d P ? . d...e y gOCKl i

and without notice of the seller s defect of title.

seller in 30 . Where a person having sold goods continues or is in possess possession 0f the goods or 0f the documents of title to the goods the jjp.s. 30. delivery or transfer by that person or by a mercantile agent acting for fiEABivi t. himoi the goods or documents of title under any sale pledge or other o. 4589. lnndi2. disposition thereof to any person receiving the same in good faith and

without notice of the previous sale shall liave the same enect as if the person making the delivery or transfer were expressly authorized by the owner of the goods to make the same/*' For the purposes of this and the next succeeding section the transfer of a document of title to goods may be by indorsement or where the document is by custom oi' by its express terms transferable b)r delivery or makes the goods deliverable to bearer then by delivery and a person shall be deemed to be in possession of goods or of the documents of title to goods where the goods or documents are in his actual custody or control or are held by any other person subject to his control or for him or on his behalf.

(o) See note to section 15. to get a title except in certain cases.—Oeddes v. (6) This section does not say that a. purchaser McDonnell, 22 V.L3., 330.

is in certain oases to get ft title; it is rather a (c) See sections 69 and 70. negative provision, saying that a purchaser is not

No. 2663.] GOODS ACT 1915. 1703

3 1 . Where a person having bought or agreed to buy goods obtains fy1s,^""?? * , * j_1 * t. J* j_l 11 * J? J.1 J J_l 1 J. -"Cf ] 3 9 D t* SVi

with. the consent ot the seller possession or the goods or the documents Bm r in of title to the'goods, the delivery or transfer by that person or by a possession after mercantile agent acting for him of the goods or documents of title s<.,.5$&s5VM. under any sale pledge or other disposition thereof to any person °-?1 *•25-receiving the same in good faith and without notice of any lien or ctfofiutdis. other right of the original seller in respect of the goods shall have the same effect as if the person making the delivery or transfer were a mercantile agent in possession of the goods or documents of title with the consent of the owner/0)

DIVISION 4.—PERFORMANCE OF THE CONTRACT.

32. It is the duty of the seller to deliver the goods and of the Duties of seller buyer to accept and pay for them in accordance with the terms of the *£ t j ^ 0 1 " contract of sale. . se A B? Vict.

33. Unless otherwise agreed, delivery of the goods and payment Payment <md .of the price are concurrent conditions (that is to say) the seller must concurrent be ready and willing to give possession of the goods to the buyer in ™"("t'°IM,

exchange for the price, and trie buyer must be ready and willing toi^s^s! pay the price in exchange for possession of the goods.

34. (1) Whether it is for the buyer to take possession of the noiei as to goods or for the seller to send them to the buyer is a question depending fb

lv^ in each case on the contract express or implied between the parties. ib. s. a>. Apart from any such contract express or implied the place of delivery is the seller's place of business if he have one and if not his residence : Provided that if the contract be for the sale of specific goods which to the knowledge of the parties when the contract is made are in some other place then that place is the place of delivery/6'

(2) Where under the contract of sale the seller is bound to send the goods to the buyer, but no time for sending them is fixed, the seller is bound to send them within a reasonable time.

(3) Where the goods at the time of sale are in the possession of a third person there is no delivery by seller to buyer unless and until such third person acknowledges to the buyer that he holds the goods on his behalf:_ Provided that nothing in this section shall affect the operation of the issue or transfer of any document of title to goods.

(4) Demand or tender of delivery may be treated as ineffectual unless made at a reasonable hour. What is a reasonable hour is a question of fact.

(0) Unless otherwise agreed, the expenses of and incidental to putting the goods into a deliverable state must be borne by the seller.

(a) See sections 69 and 70. " at New York by sailing vessel—May shipment;" (6) A contract for the sale of timber was made and that "sellers reserve the right to insure

in Melbourne between the plaintiffs, a Melbourne against war risk, the cost of which to be paid for firm, and the defendants who were described as of by buyers in addition to the price above named." " Melbourne " but who had their principal place Held, that the place of delivery under the con-of business in New York, U.S.A., with a branch tract was New York.—Bowden v. Little, (1907), house in Melbourne. The contract provided that 4 C.L.B., 1364, followed. Crooke. v. Smith, 4 the price should be " £1815s. per 1,000 feet super., V.L.R. (L.), 95; and Brooks, Robinson <fe Co. v. c.i.f.e., Melbourne;" that the terms should be Smith, 16 V.L.K., 245, applied.—Beecham. v. "sellers' New York house on shipment to draw on Cameron, 1910 V.L.R., 19. See also as toContracts buyers at 90 days' sight;" that shipment should be c.i.f., Alexander Cross v. Easell, 1908 V.L.R., 194.

1704 GOODS ACT 1915. [6 GEO. V.

Sale of (Ptodi 35. (1) Where the seller delivers to the buyer a quantity of D^LVO96*!36' £°°ds les s than he contracted to sell the buyer may reject them, but if wrong quanttty, the buyer accepts the goods so delivered he must pay for them at the l*n "so!0*" contract tate.

(2) AVlicre the seller delivers to the buyer a quantity of goods larger than lie contracted to sell the buyer may accept the goods included iu the contract and reject the rest, or he may reject the whole. If the buyer accepts the whole of the goods so delivered he must pay for them at the contract rate.

(3) Where the seller delivers to the buyer the goods he contracted to sell mixed with goods of a different description not included in the contract, the buyer may accept the goods which are in accordance with the contract and reject the rest, or he may reject the whole.

(4) The provisions of this section are subject to any usage of trade, special agreement, or course of dealing between the parties.

Instalment

lb. 9. SI.

36. (1) Unless otherwise agreed, the buyer of goods is not bound to accept delivery thereof by instalments.

(2) Where there is a contract for the sale of goods to be delivered by stated instalments which are to be separately paid for, and the seller makes defective deliveries in respect of one or more instalments, or the buyer neglects or refuses to take delivery of or pay for one or more instalments, it is a question in each case depending on the terms of the contract and the circumstances of the case whether the breach of contract is a repudiation of the whole contract or whether it is a sever­able breach giving rise to a claim for compensation but not to a right to treat the whole contract as repudiated.

Delivery to carrier. lb. «. 37. l b . 8. 32.

37. (1) Where in pursuance of a contract of sale the seller is authorized or required to send the goods to the buyer, delivery of the goods to a carrier, whether named by the buyer or not, for the purpose of transmission to the buyer is privid facie deemed to be a delivery of the goods to the buyer.

(2) Unless otherwise authorized by the buyer, the seller must make such contract with the carrier on behalf of the buyer as may be reasonable, having regard to the nature of the goods and the other circumstances of the case. If the seller omit so to do, and the goods are lost or damaged in course of transit, the buyer may decline to treat the delivery to the carrier as a delivery to himself or may hold the seller responsible in damages.

(3) Unless otherwise agreed, where goods are sent by the seller to the buyer by a route involving sea transit under circumstances in which it is usual to insure, the seller must give such notice to the buyer as may enable him to insure them during their sea transit, and if the seller fails to do so the goods shall be deemed to be at his risk during such sea transit.

Risk whom gnodsaro daL.vered a t distant place. lb. «. &S, lb . ». 33.

38. Where the seller of goods agrees to deliver them at his own risk at a place other than that where they are when sold, the buyer must nevertheless unless otherwise agreed take any risk of deteriora­tion in the goods necessarily incident to the course of transit.

No. 2663.] GOODS ACT 1915. 1705

39. (1) Where goods are delivered to the buyer which he has not previous! v examined lie is not deemed to have accepted them unlessand f" . 8*\\', * ., " i l l • n . t> . • i i , i Buyer's right of until he lias had a reasonable opportunity ot examining them tor the examining the purpose of ascertaining whether they are in conformity with the contract. ?**..*'„,

/r\ \ TT 1 1 " I I 1 | i " j 1 1 " rt*0«57 V l C t .

(2) Unless otherwise agreed when the seller tenders delivery ot c.7is.a*. goods to the buyer he is bound on request to afford the buyer a reasonable opportunity of examining the goods for the purpose of ascertaining whether they are in conformity with the contract.

* 40. The buyer is deemed to have accepted the goods when he

intimates to the seller that he has accepted them, or when the goods '*• «.*°-have been delivered to him and he does any act in relation to them Ib'3- -which is inconsistent with the ownership of the seller, or when after the lapse of a reasonable time he retains the goods without intimating to the seller that he has rejected them. °

41 . Unless otherwise agreed where goods are delivered to the Buyer not buyer and lie refuses to accept them, having the right so to do, he is cS*d°gMoxn

not bound to return them to the seller, but it is sufficient if he J*.*.4i. intimates to the seller that he refuses to accept them. ib.s.se.

42. When the seller is ready and willing to deliver the goods and Liability of requests the buyer to take delivery and the buyer does not within a negj«ctta!gor reasonable time after such request take delivery of the goods he is liable jc'iVverf ot to the seller for any loss occasioned by his neglect or refusal to take goods. delivery, and also for a reasonable charge for the care and custody of iim*'*X'

I 1 IT 1 - - j_l • >_• 1 11 JT J. J.1 * 1 i. 1! J.1 11 l b . ». 97 .

the goods. liotnmg in tins section snail anect the rights ot the seller where the neglect or refusal of the buyer to take delivery amounts to a repudiation of the contract.**'

DIVISION 5.—EIGHTS OF UNPAID SELLER AGAINST THE GOODS.

43. (1) The seller of goods is deemed to be an "unpaid seller " unpaid seller within the meaning of this Part— Ibi 14^

(a) When the whole of the price has not been paid or tendered: ib.s.ss, • (J>) When a bill of exchange or other negotiable instrument has

been received as conditional payment, and the condition on which it was received has not been fulfilled by reason of the dishonour of the instrument or otherwise.

(2) In this Division of this Part the term " seller " includes any person who is in the position of a seller, as for instance an'agent of the seller to whom the bill of lading has been indors'ed or a consignor or agent who has himself paid or is directly responsible for the price.

44. (1) Subject to the provisions of this Part and of Part II. unpoia seiier-a and of any Act in that behalf, notwithstanding that the property cle}lU-• , i • -i i i J. i.i i ? i • 1 i i i J*. *• **•

in the goods may have passed to the buyer, the unpaid seller ot tt, . ,a 1 I 1 1 • 1 * j_ + ^ 1 S. iltf.

goods as such has by implication oi law— (a) A lien on the goods for the price while he is in possession

of them: (b) In case of the insolvency of the buyer a right of stopping the

goods in transitu after he has parted with the possession of them:

(c) A right of re-sale as limited by. this Part. (a) See note to section 16.

1706 GOODS ACT 1915. [6 GEO. V.

S"h of Goods Act 1896.

(2) Where the property in goods has not passed to the buyer the unpaid seller lias in addition to his other remedies a right of withholding delivery similar to and co-extensive with his rights of lien and stoppage in transitu where the property has passed to the buyer.

Sailor s itan. lb. 9, 4fr. 56 & 57 Vict. 0. 71 3.41,

Unpaid Seller's Lien. 45. (1) Subject to the provisions of this Part the unpaid seller

of goods who is in possession of them is entitled to retain possession of them until payment or tender of the price in the following cases, namely:—

(a) Where the goods have been sold without any stipulation as to credit:

(b) Where the goods have been sold on credit but the term of credit has expired:

(c) Where the buyer becomes insolvent. (2) The seller may exercise his right of lien notwithstanding that

he is in possession of the goods as agent or bailee for the buyer.

rut doiivery. 46. Where an unpaid seller has made part delivery of the goods ib. s. 48. ]Le may exercise his right of lieu on the remainder unless such part lb. 3.42. delivery has been made under such circumstances as to show an

agreement to waive the lien.

Termination of lien. Ib. s.47. l b . 8. 43.

47. (1) The unpaid seller of goods loses his lien thereon— (a) When he delivers the goods to a carrier or other bailee for

the purpose of transmission to the buyer without reserving the right of disposal of the goods:

(b) When the buyer or his agent lawfully obtains possession of the goods:

(c) By waiver thereof. (2) The unpaid seller of goods having a lien thereon does not lose

his lien by reason only that he has obtained judgment for the price of the 'goods.

Stoppage in transitu.

48. Subject to the provisions of this Part and of Part II. of this Act when the buyer of goods becomes insolvent the unpaid seller who has parted with the possession of the goods has the right of stopping them in transttu that is to say he may resume possession of the goods as long as they are in course of transit and may retain them until payment or tender the price/"'

49. (1) Goods are deemed to be in course of transit from the time when they are delivered to a carrier by land or water or other bailee £or the purp0se 0f transmission to the buyer until the buyer or his

Comp No lios ^S611^ mn that behalf takes .delivery of them from such carrier or other s.109 and bailee.

(2) i t the buyer or his agent m that behalf obtains delivery of the goods before their arrival at the appointed destination the transit is at an end.

It ight of stoppage in transitu. Ib. s. 48. Ib. s. 44.

Duration of transit.

(a) See sect ions 69 and 70.

No. 2663.] GOODS ACT 1915. 1707

(3) If after the arrival of the goods at the appointed destination Sale of Qoodt

the carrier or other bailee acknowledges to the buyer or his agent that Act 1

lie holds the goods on his behalf and continues in possession of them as bailee for the buyer or his agent the transit is at an end, and it is * immaterial that a- farther destination for the goods may have been ' indicated by the buyer.

(4) If the goods are rejected by the buyer and the carrier or other bailee continues in possession of them the transit is not deemed to be at an end even if the seller has refused to receive tliem back.

(5) When goods are delivered to a ship chartered by the buyer it is a question depending on the circumstances of the particular case whether they are in the possession of the master as a carrier or as agent to the buyer.

(6) Where the carrier or other bailee wrongfully refuses to deliver the goods to the buyer or his agent in that behalf the transit is deemed to be at an end.

(7) Where part delivery of the goods lias been made to the buyer or his agent in that behalf the remainder of the goods may be' stopped in transitu unless such part delivery has been made under such circumstances as to show an agreement, to give up possession of the whole of the goods.

50 . (1) The unpaid seller may exercise• his right of stoppage HO*stoppage in transitu either by taking actual possession of the goods or by giving cneood!'"1* notice of his claim to the carrier or other bailee in whose possession 76.». so. the goods are. Such notice may be triven either to the person in se«w vi«t,

A I „ £ *1 „ 1 i 1 • ' • 1 T 4.1 1 A. C. 71 S. 48.

actual possession ot the goods or to his principal. In the latter case the notice to be effectual must be given at such time and under such circumstances that the principal by the exercise of reasonable diligence may communicate it to his servant or agent in time to prevent a delivery to the buyer.

(2) When notice of stoppage in transitu is given by the seller to the carrier or other bailee in possession of the goods he must re-deliver the goods to or according to the directions of the seller. The expenses of such re-delivery must be borne by the seller.

Resale by Buyer or Seller.

5 1 . Subject to the provisions of this Part and of Part I I . Enoctof the unpaid seller's right of lien or stoppage in transitu is not n"edg«t>yr

affected by any sale or other disposition of the goods which the °uy*r-buyer may have made unless the seller has assented thereto/"5 I b ' ' . - '

62 . (1) Subject to the provisions of this section a contract ofsaienot sale is not rescinded by the mere exercise by an unpaid seller of his ^"1^5 by right of lien, or stoppage in transitu. Honor stoppage

/~\ Where fi T"1! 1 1 1 1

paid seller who Ivis exercised his ricrlit of„ lien or ih n<? stormao'e in transitu re-sells the sroods thebnver accmires a ffood title ib s 48 thereto as against the original buyer '

(3~) Wlvere the (roods ire of a rjerishable nature or where the irmnid SPIIPI* ffivps notice'to the hnver of his intpnHon to re <w>ll

rt*the 1 nvor HOPS not within a rpnsonable time n i v or tennW thf> (a See sections 69 and 70.

1708 GOODS ACT 1915. [6 GEO. V.

Sait oi Goods AM 189(1.

price, the unpaid seller may re-sell the goods and recover from the original buyer damages for any loss occasioned by his breach of contract.

(4) Where the seller expressly reserves a right of re-sale in case the buyer should make default, and on the buyer making default re-sells the goods, the original contract of sale is thereby rescinded but without prejudice to any claim the seller may have for damages.

Action for prico. lb.t. 53. 66 & 57 Vict. 0 71 8. 49.

JtVt 9* 5 4 .

lb. a. 50.

DIVISION 6.—"ACTIONS FOR BREACH OF THE CONTil ACT.

Remedies of the Seller.

5 3 . (1) Where under a contract of sale the property in the goods has passed to the buyer, and the buyer wrongfully neglects or refuses to pay for the goods according to the terms of the contract, the seller may maintain au action against him for the price of the goods.

(2)' Where under a contract of sale the price is payable on a day certain irrespective of delivery, and the buyer wrongfully neglects or refuses tq pay such price, the seller may maintain an action for tiie price although the property in the goods has not passed and the goods have not been appropriated to the contract.

Damness for 54 . (1) Where the buyer wrongfully neglects or refuses to accept non-ncoeptanro. R11<j pay for £],£ goods the seller may maintain an action against him

for damages for non-acceptance. (li) The measure of damages is the estimated loss directly and

naturally resulting in the ordinary course of events from the buyer's breach of contract/"'

(3) Where there is an available market for the goods in question the measure of damages is prima facee to be ascertained by the difference between the contract price and the market or current price at the time or times when the goods ought to have been accepted, or if no time wag fixed for acceptance then at the time of the refusal to accept.

Remedies of the Buyer. 55 . (1) Where the seller wrongfully neglects or refuses to deliver

the goods to the buyer the buyer may maintain an action against the seller for damages for non-delivery.

(2 i The measure of damages is the estimated loss directly and naturally resulting in the ordinary course of events from the seller's breach of contract.

0) Where there is an available market for the goods in question the measure of dnmages is priwid facie to be ascertained by the difference between the contract price and the market or current price

Damages for non-delivery. Jo. t. 65. lb. fl, 61.

(a) The jury having found on the facts stated in the note to section 16 that there was no avail* ablo market for the sheep at the place of de-livory, but that the value of the sheep at that place was not more than the price agreed to be paid for them. Held {Griffith, C.J., dissenting), that the purchaser was only entitled to nominal damages.

It appeared that the defendant had made a

large profit by the re-sale of the sheep. Held, by Griffith, O.J., that this latter finding was not conclusive as to the estimated loss directly or actu­ally resulting in the ordinary course of events from the sale in breach of contract (Sale of Goods Act, section 52 (2) (Q.), corresponding with this sub-section), and that the defendant was entitled to a re-assessment of damages.—JFYanct* v. L-von, 4 C.L.R., 1023.

No. 2663.] GOODS ACT 1915. 1709

of the goods at the time or times when they ought to have been sakot aoo&t delivered, or if no time was fixed then at the time of the refusal to deliver.

56. Ju any action for breach of contract to deliver specific or speciflc . . . J

n , , . j , . , . , . , j , . , | i- , . ,, performance. asceI'rallied gooas the court may it it thinks nt on the application or Tl> t M the plaintiff by its judgment direct that the contract shall be &««57 vtct. performed specifically without giving the defendant the option of retaining the goods on payment of damages. The judgment may be unconditional or upon such terms and conditions as to damages payment of the price and otherwise as to the court may seem just, and the application by the plaintiff may be made at any time before judgment.

57. (1) Where there is a breach of warranty by the seller or Homedyfor where the buyer elects or is compelled to treat any breach of a warra*ty. condition on the part of the seller as a breach of warranty, the buyer r*.»,s7, is not by reason only of such breach of warranty entitled to reject the Ib* *•6ip

goods ; but he may— (a) Set up against the seller the breach of warranty in

diminution or extinction of the price ; or (b) Maintain an action against the seller for damages for the

breach of warranty. (2) The measure of damages for breach of warranty is the

estimated loss directly and naturally resulting in the ordinary course of events from the breach of warranty.

(3) In the case of breach of warranty, of quality such loss is prim& facie the difference between the value of the goods at the time of delivery to the buyer and the value they would have had if they had answered to the warranty.

(4) The fact that the buyer has set up the breach of warranty in diminution or extinction of the price does not prevent him from maintaining an action for the same breach of warranty- if he has suffered further damage.

Interest and Special Damages. 58. Nothing in this Part shall affect the right of the buyer or interest una

the seller to recover interest or special damages in any case where by 1 °°> »™«e». law interest or special damages may be recoverable, or to, recover Ib' B* H' money paid where the consideration for the payment of it has failed.

DIVISION 7.—SUPPLEMENTARY.

59. Where any right duty or liability would arise under a delusion of „ i . L ~c l i~ * - l - i+ AM 'i_ i j . * i * i i imp'ied tonus

contract or sale by implication ot Jaw it may be negatived or varied by ^ conditions. express agreement or by the course of dealing between the parties or '*.»• s». by usage if the usage be such as to bind both parties to the contract. Ib-5-55-

Ilensonoble 60. v> here by this Part any reference is made to a reasonable Ji™ct.qu

time the question what is a reasonable time is a question of fact. ib.t.w. Ib. u, 66.

oi t i n * A _ . . ~~ . — ?~ui . .3..4.. *— i;„i_^;i;j... ;_ J ^ ^ I „ „ * J v.„ i.i_^~ ~Dn.ti. JL Rights Ac.

01. Vv here any right duty or liability is declared by this rar t it «nforcenbie t>y may unless otherwise by this Part provided be enforced by action. /jtionii

I b . s . 5 7 .

1710 GOODS ACT 1915. [6 GEO. V.

Sale of Goods Act 1S0O». 62. AUGtion 3&IC3.

56 Jt 57 Vict. c. T1 s. 58.

62 . In the case of a sale by auction— (1) Where goods are put up for sale by auction in lots, each lot is

primd facie deemed to be the subject of a separate contract of sale. (2) A sale by auction is complete when the auctioneer announces

its completion by the fall of the hammer or in other customary manner. Until such announcement is made any bidder may retract his bid.

(3) Where a sale by auction is not notified to be subject to a right to bid on behalf of the seller it shall not be lawful for the seller to bid himself or to employ any person to bid at such sale or for the auctioneer knowingly to take any bid from the seller or any such person. Any sale contravening this rule maybe treated as fraudulent by the buyer.

(4) A sale by auction may be notified to be subject to a reserved or upset price, and a right to bid may also be reserved expressly by or on behalf of the seller.

(5) Where a right to bid is expressly reserved but not otherwise the seller or anyone person on his behalf may bid a t theauct ion.w

Interpretation. Instruments 4d ISOOs. 225.

lb. t. 225. 62 & 53 Vict. c. 45 s. 1 (£).

It>. s. 1 (3).

lb . s. 1 (i). 56 & 57 Vict. 0. 71 8. £5. S<de of Goods Act 1896 a. SO (3). 62 & 5 3 Viet c. 45 s. 1 <5>

Sfiving of agents' powers. 52 fttxd 53 Vict, c. 45 s. 13.

PAET II.—CONSIGNEES, MERCANTILE AGENTS, DOCUMENTS OF TITLE TO GOODS, BILLS OF .LADING.

6 3 . In the construction of this Part unless inconsistent with the context or subject-matter—

" Advance " includes a payment of money and the delivery of a bill of exchange or other negotiable security.

' 'Document of t i t le" includes bill of hiding*6' dock warrant warehousekeeper's certificate wharfinger's certificate and warrant or order for the delivery of goods or any other document used in the ordinary course of business as proof of the possession or control of goods or authorizing or purporting to authorize either by indorsement or by delivery the possessor of such document to transfer or receive the goods thereby represented :

" G o o d s " includes goods wares and merchandise : "Mercantile agent" means a mercantile agent having in the

customary course of his business as such ageut authority , either to sell goods or to consign goods for the purpose of

sale or to buy goods' or to raise money on the security of goods or of documents of title :

"P ledge" includes any contract pledging or giving a lien or security on goods whether in consideration of an original advance or of any further or continuing advance.

The provisions of this Part shall be construed in anrolification and not in derogation of the powers exercisible bv an agent independently of this Act

(<z) As to effect of entry of bidder's u&nie and bid by auctioneer's clerk, see Auction S<de# Act 1915, section 42.

{b) The contract contained in a bill of lading is not only to carry but to deliver ; and until the goods have been taken out of the possession of

the ship-owner and delivered to the consignee, the bill of lading is in force, and remains a symbol of property which may be entrusted to a person within the meaning of this Part.1—Levi v. Irt&tmoyith, 1 W. & W. (Jj.), 283.

No. 2663.] GOODS ACT 1915. 1711

64. (1) Where the owner of goods has given possession of the imtrumentt AcA goods to another person for the purpose of consignment or.sale or has 1

PwJ'j f l*„ t,

shipped the goods in the name of another person and the consignee consignees. of the goods lias not had notice that such person is not the owner of w*esvict. the goods the consignee shall in respect of advances made to or for the ' ° use of such person have the same lieu'on the goods as if such person was the owner of the goods and may transfer any such lien to another person.

(2) The person in whose name any goods have been shipped shall for the purposes of tikis section be taken to have been given possession of the goods for the purpose of consignment or sale unless the contrary is shown.

(3) Nothing in this section shall limit or affect the validity of any sale pledge or disposition by a mercantile agent.

65. (1) Where a mercantile agent is entrusted as such with the Powersof possession of any goods or the documents of title to any goods any sale J uts'with pledge or other disposition of the goods made by him in the ordinary "t^j,0^0 o'ods" course of business of a mercantile agent shall subject to the provisions j&.*(.217,219 of this Part of this Act be as valid as if he was expressly authorized 220.222. i i.1. x' 4.1 a 4. ^ 1 J-L „ T> • f j j.1 j . i t . ~ S2 * S3 Vict"

by the owner 01 the goods to make the same: Provided that the person c, 45 B. 2. taking under such disposition acts in good faith and has not at the time of the disposition notice that the person making the disposition has not authority to make the same.

(2) Where a mercantile agent so entrusted continues in possession of goods or of the documents of title to goods any sale pledge or other disposition which would have been valid if the entrusting had con­tinued shall be valid notwithstanding the determination thereof: Provided that the person taking under the disposition has not at the time thereof notice of such determination.

0 0 . J?01' t h e purpOSes Of t h i s P ar't Presumptions

' (1) A mercantile agent in jvossession of goods or of the docu- \b s 2^, merits of title to goods shall be deemed to have been entrusted with such goods or documents as such agent until the contrary is shown.

(2) A mercantile agent entrusted as such agent and possessed 76 ». 225. of the documents of title to goods whether derived immediately from the owner of such goods or obtained by reason of such agent's having been entrusted with, the possession of the goods or of any other document of title thereto shall be deemed to be entrusted with the possession of the goods represented by such documents.

(3) An agent shall be deemed to be possessed of goods or Agent when in 1 i. e , • . ! . i i j.iT J.1 * 1- • possession'

documents ot title to goods whether tbe same are in his „ ,„. actual custody or control or are held by any other perso.n subject to his control or for him or on his behalf.

(4) Any contract whether made directly with an agent or with contracts i i ±1 1 * i 1 ii? 1 ' i i 1 J 1 how made.

any clerk or other person on his benalt shall be deemed r. „„, to be a contract with the agent.

(5) A pledge of the documents of title to goods shall be deemed Effect 0f pledge to be a pledge of the goods represented by such ° 0*"™!*B *' , i * a. 1.225. documents.

1712 GOODS ACT 1915. [6 Oca V.

jHitrumtnti Act 18W1 s. 2J5. Valid pledge may be made though goods or documents of title not received at the time.

Transfer how made. 52 * 5S Vict. c. 46 i, 11. Compare Instruments Act 1800 »». 225, 229.230, and Instrument* Act 1 07 8. 2. Pleds.'es by way of eX'-hnnge protected. IneCrufti&ttv Act 18B0 ». 22J. 52 & S3 Vict, c 45 R. 5.

(6) Where any loan or advance is &>#<?. /«& made to a mercantile agent entrusted as aforesaid on the faith of any contract or agreement in writing to consign deposit transfer or deliver goods or documents of title to goods and such goods or documents are actually received by the person making such loan or advance without notice that such agent was not authorized to make such pledge every such loan or advance shall be deemed to be a loan or advance on the security of such goods or documents within the meaning of this Part although such goods or documents are not actually received by the person making such loan or advance till a period subsequent thereto.

(7) The transfer of a document of title to goods may be by indorsement or where the document is by custom or by its express terms transferable by delivery or makes the goods deliverable to bearer then by delivery.

67. Where a mercantile agent pledges goods in consideration of the delivery or transfer of any other goods or documents of title to goods or negotiable securities upon which the person delivering or transferring tlie same had at the time a valid and available lien and security for or in respect of a previous advance by virtue of some contractor agreement made with such agent such pledge if the pledgee acts in good faith and without notice that such agent had not authority to make the same shall be deemed to be in consideration of an advance within the meaning of this Part as if there had been a present advance of money but the pledgee shall acquire no rightror interest in excess of the value of the goods documents or negotiable securities when so delivered or transferred.

i>iedgo tor 6 8 . Where a mercanti le agent pledges goods as security for a nntecadoutdobt-det>t or demand due and owing by the pledgor to the pledgee before

.*' 8 the t ime of the pledge the pledgee shall acquire no further r igh t lb . a, 4.

Effectof transfer of document of title by owner or buyor. Sale of Goods Actl&W 8.51. 60 & 57 Vict, c. 71 s. 47.

to the goods than could have been enforced by the pledgor a t the t ime of the pledge.

6 9 . Where a document of t i t le of goods has been lawfully transferred to any person as buyer or owner of the goods and tha t person transfers the document to a person who takes it in good faith and for valuable consideration then if such last-mentioned transfer is by way of sale the unpaid seller's r igh t of lien or stoppage in transitu shall be defeated and if such last-mentioned transfer is by way of pledge or other disposition for value the unpaid seller's r ight of lien or stoppage in transitu may be exercised only subject to the r ights of the transferee.'**

Deliveryot 7 0 . (1) Wi thou t l imit ing the generali ty of the las t preceding possession is section the delivery of a warran t for goods indorsed by the person or weii as property, persons to wboni t he same has been issued or by his or their agent or i830*»m230*.Act authorized employe to a purchaser of the goods mentioned in such

warran t shall pass the possession as well as the property in the said

(a) Sti& sections 30 and 31.

No. 2663.] GOODS ACT 1915. 1713

goods and no unpaid vendor of the said goods shall have any right to rmtmmenttAa resume the possession of or to stop the same or any part thereof18B0' in transitu, after the delivery of the said warrant.

(2) Where a warrant for goods has been indorsed by the person Effect ot i i j . 1 i i_ • J - v L • _ i J i transfer of to whom the same has been issued or given or by his agent duly document of authorized in that behalf and is delivered to any person such last- JJwiSnfS^? mentioned person and any subsequent holder of the warrant in goodt3.i38U°dor

faith shall as against the person by or on whose behalf the warrant /m*nnjK!n<< has been issued or given be entitled to the goods and the possession jU(1897*-a-thereof to the same extent as if the contract contained, in or evidenced by such warrant had been made with the person to whom the warrant lias been indorsed and delivered as aforesaid or with the said holder thereof (as the case may be).(a)

(3) In this section the expression " warrant for goods" means a Meaning of I T ' i . + - C j . i e ' L'n L. i i t. expression

warehousekeepers certificate wharfingers certificate dock warrant Or »im-runt for warrant or order for the delivery of goods. goods."

1300 f, 2£9i

71 . vvithout limiting trie generauty of the provisions contained K t to^e t v?ii 11 V?* preceding sections, every consignee of goods named in a inaorsw> pm ot lading, and every indorsee of a bill of lading to whom the property io.», ios. in the goods therein mentioned passes upon or by reason of such \ l l l a \ consignment or indorsement shall have transferred to and vested m aigntof him all rights of suit and be subject to the same liabilities in respect J^SJJf^S of such goods as if the contract contained in the bill of lading had ^''ht, been made with himself, but nothing m this section contained shall lb" * • prejudice or ancct any right of stoppage in transitu otherwise existing or any right to claim freight against the original shipper or owner, or any liability of the consignee or indorsee by reason or in con­sequence of lus being such consignee or indorsee or of his receipt of the goods by reason or in consequence of such consignment or indorsement.

72. Every bill of lading in the hands of -a consignee or indorsee whenMiis for valuable consideration representing goods to have been shipped ooncuufve shall be in all civil proceedings conclusive evidence of such shipmentevidonos-against the master or other person signing the same notwithstanding "*' that such goods or some part thereof were not so shipped; unless such holder had actual notice at the time of receiving the same that the goods had not been in fact laden on board.

73. Any person who signs any receipt acknowledgment or bill of Signing untrue lading which represents or purports to represent that the goods therein misdemeanour* mentioned have been shipped in or upon or laden on board the ship or ».«.m. vessel therein named, unless such goods have in fact been so shipped or laden or unless they are at the port where the ship is loading, and are for the purpose of shipment at the absolute order and disposition of the master of such ship or vessel, shall be guilty of a misdemeanour.

(a) See sections 30 and 31. A warehouseman the bond certificate without notice to the ware-has no right to givo up possession of goods stored houseman.—Ctibbs, Bright, and Co. v. Ralph, 14 with him, and for which he has given his bond A.L.T., 80. certificato, except on production of the certifi- And for case decided under enactments predi­cate, and, if lie does, he is liable to the holder of ously in force see Commercial Bank v. Skinner, the bond certificate for all the goods represented 21 V.L.K., 368. in it, even though such holder be an assignee of

VOL. n , — 3 B

1714 GOODS ACT 1915. [6 GEO. V.

Instruments 7 4 . The word " p o r t " in the last preceding section includes the Act lews. us. c^y of Jiel'ooririie Por t Melbourne and Williamstown the city of Definitionof rt i j.1 i i> TTT i i T* ^ i^ * i "o L I - J . .1 port. Geelong the towns or Warrnambool Po r t Jjairy and Port land ana

places within ten miles from the post-office in the city of Melbourne and within three miles from the post-office in the city of Geelong, and' in each of the towns aforesaid.

Procedure by 7 5 . Subject to the preceding provisions of this P a r t the person ivhloU a person * • „ * i l l j „ i I -n ^j?i i* „ .P „„„;i l ~ ,••»

signing<Sn signing any receipt acknowledgment or bill ol lading as aloresaid may hmSei'it!** in a^ proceedings whether civil or criminal exonerate himself in ib. «. in. respect of any misrepresentation such as is referred to in section

seventy-three by showing tha t i t was caused without any default on his par t and by the fraud of the shipper or of the holder or of some person under whom the holder claims.

Dealing with 7 6 . Any person who deposits or assigns either by way of sale or lininga* ot of pledge or otherwise deals with any receipt acknowledgment or bill of misdemeanour. lading as aforesaid knowing t ha t sucli receipt acknowledgment or bill

of lading has been signed contrary to the provisions of this P a r t shall be guilty of a misdemeanour.

Bin of liiding 7 7 . The fact tha t any receipt acknowledgment or bill of lading not invalidated u ~ „ 1 ~ ;™~~J ~H.~4.~- - ±~ j-U ~ *~* ~ £ i.* ~~~ ~ ^ K i . . 4.1 by improper &as oecu signed contrary to the provisions ot section seventy-three signature. shall not of itself invalidate any such receipt acknowledgment or bill

of lading or in any way atrect the operation thereof. Punishment for 7 8 . Every misdemeanour under this P a r t shall be punishable by ft"""J™"01"'- a fine of not more than Two hundred pounds or by imprisonment with lb. I. 114. . . . . n , n j . . (• j . i . l_ j .

or without hard labour lor a term ol not more than two years.

Saving of rights. 79. Nothing in this Part— lb* tt. 221, 226, \ i i i i i - i .j . i i i _ _ p i" 227, (a) shall authorize an ageot to exceed or depart l rom his 52 & M Vict. authority, as between himself and his principal or shall

exempt him from liability civil or criminal for so do ing ; (b) shall prevent the owner of goods or documents from recover­

ing the same from an agent or his assignee or trustee in insolvency at any time before the sale or pledge thereof;

(c) 8hall prevent the owner of any goods sold by an agent from recovering from the buyer the price or sum agreed to be paid subject to any rights of set-off of such buyer against • such agent;

(d) shall prevent such owner from having the right to redeem goods or documents pledged at any time before sale thereof on satisfying the claim for "which the goods were pledged and on paying to the agent if by him required any money in respect of which such agent would by law be entitled to retain such goods or documents or any of them by way of lien as against such owner; or shall prevent such owner from recovering from any person with whom any such goods have been pledged any balance or sum of money remaining in his hands as the produce of sale after deducting the amount of his lien: Provided that in the case of the bankruptcy or insolvency of any

o. 45 s.12.

No. 2663.] GOODS ACT 1915. 1715

such agent the owner of the goods so redeemed shall in instrmnents : respect of any sum paid by ham on account of such agent Au wm

for redemption be held to have paid such sum for the use of such agent before insolvency and shall be held pro tanto to have discharged any debt due by him to,such agent; or in case there has been no such redemption the owner shall be deemed to be a creditor of the insolvent for the value of the goods so pledged and shall if he thinks fit be entitled in either of such cases to prove for or set off the sum so paid or the value of such goods (as the case may be).

PART III.—PIFFEOT OF EXECUTION AND CONVICTION O N rxTLBi TO G O O D S .

80. (1) A writ of fieri facias or warrant or other writ of execution Effect o/ ™tsof agaiust goods shall bind the property in the goods of the execution ™™'!l),!!' , i i p i . i x * i i ' * l T i i JI i *f*. i *""e °' "°od* debtor as from the time when the writ is delivered to the sherin to be Aaima. 31. executed, and for the better manifestation of such time it shall be the ^eBS ""j*7„ duty of the sheriff without fee upon the receipt of any such writ to ' 'c i n d o r s e UDOII t h e b a c k t h e r e o f t h e h o u r d a v m o n t h a n d y e a r w h e n h e r<wiived t h e s a m e • P r o v i d e d t h a t no si ich w r i t a n d no w r i t of n,tts»rhinf>iit a g a i n s t ' t h e snor is of a d e b t o r s h a l l p r p i n d W t h e Htl*> t o Hiifli frorifls ir-rmirftd hv a n v riPrson in irood -faith a n d for v a l n a h l p

'(it H A n laoa s n i rw>rt;o 1 id' fit th(> time w h e n h e nf>miir<>rl V q .-.•• A ( . J „ - J-K !(• R n f , h w r i t A r wf l i rnnr or »ny o t h e r w r i t h v virhi(> n f

which the goods of the execution debtor might be seized or attached Tl \t\ 1 f> ?.]• J i . :i • A " , i • , , I i f , i

i .*fP{0) ,n\ T . i - ,- .r . ( ( i . j»j , • l d ' ffl V, d

with the enforcement ot a writ ot execution.

81 . (1) Where goods have been stolen and the offender is novating of prosecuted to conviction the property in the goods so stolen revests in the person who was the owner of the goods or his personal JJEJJjj*™1of

representative notwithstanding any intermediate dealing with them ib.s.w. whether by sale in market overt or otherwise/*6' ib- »•24-

(2) Notwithstanding any enactment to the contrary where goods-Property not to have been obtained by fraud or other wrongful means not amounting Sft™™"* to larceny the property in such goods shall not revest in the person who was the owner of the goods or his personal representative by reason only of the conviction of the offender.

PART IV,—lltADING STAMPS OR OOtJFONS. 82. In the construction of this Part, if not inconsistent with the Interpretation.

context or snbject-matter— * Trading sm^ps "Sale" includes the exchange or other disposition of any „ » „ ' ' 2

property. . . isoo s. 2. " Trader means any person firm or company carryiue on any

business who issues tradine: stamps to customers. >-~

(a) Goods assigned w> trustees for benefit of . (6) See section 596 of the Crimea Act 1915 as to oreditors generally are protected from execution. the time when this section becomes operative in. —Whitehead v. GriJJUh, 1 V.R. (L.), 18. the oase of convictions for indictable offences.

3

1716 GOODS ACT 1915. [,6 GEO. V.

Trading stompt " Trading ssamp " includes any ssamp coupon covee or package ctl9w* document means or device supplied by any trading stamp

company OT issued by any trader which entitles the holder thereof to demand and receive from any trading s tamp company or from any person firm or company other than the said trader any money or goods.

u Trading stamp company " means and includes any person firm or company who supplies any trading stamps to any trader and undertakes to redeem the same or tha t the same will be redeemed by giving o r . delivering to the holder thereof any money or goods.

Trading stamps 8 3 . (1) No person shall on the sale of any goods issue any trading *. 1S„ ' stamps to any person. (a '

{£) JNo person shall give or deliver any money or goods on presentation of any trading stamp.

(3) Any person who contravenes anjr of the provisions of this section shall be liable to a penalty of not more than Ten pounds.

(4) For the purposes of this section the person o11 whose behalf any sale is made by an agent assistant or apprentice shall be deemed to be the person who effected the s a l e ; ana such agent assistant or apprentice shall be liable to the same penalty as the person on whose behalf the sale was made.

MMLnin^of 8 4 . I n section eighty-two and in sub-section (2) of section eighty-certain sections, three of this Act the word " g o o d s " wherever occurring shall be Trading stamps deemed and dtken t t oincude t t a d i i g stamps oo r a y yickkts checks Act1WZe.2. - i j , . , „ „ j „ j - , i D . r j . , , ' ,, • ; _ .,„

t0kens documents or orders directly or indirectly authorizing or entitling any person to travel by any public or private railway tramway boat or conveyance or to obtain meals or refreshment or to play or take part in any indoor or outdoor game or sport or to be admitted into any theatre concert hall race-course cricket or football ground circus or place of public amusement or to obtain or receive any valuable consideration or benefit or advantage of any kind whatsoever.

Act not to apply

8 5 . Nothing in this Pa r t shall apply to the society registered vttteJt dciety. under the Provident Societies Act 1890 as " The Industrial Exchange Trading Stamps L i m i t e d . Act 1901s. 6.

PART V.—MERCHANDISE MARKS.

mteroretaiioii 89 - (1) For the purpose of this P a r t — interpretation. w r r

Traae mark means a traae marie registerea in tne register or trade marks under Pa r t 1. ot the lraae Marks Act 1890.

j4c( 1800 s. 12. $0 tnd fit Vict. o 2 B a - s t " Trade description u meanP any desctiption etatement or other "Tra-e draeriri- indication airect or ansirect as to— (i*ii." {a) the number quantity measure gauge or weight ot

eny goodsq or (o) the place or sountry in waich any gooos were maoe

or produced; or \C) the mode or man;iacijuring or producing any goods j or

(a) Where ft retail grocer sold goods in sealed or their agents: Held, that the coupons were packages containing ooupons inserted by the , issued by the manufacturer and not the grocer, manufacturers in Adelaide and entitling the and were not trading stamps within the meaning holders to receive goods from the manufacturers of this Part.—Oamtton v. Moran, IS C.L.R., 578.

No. 2663.] GOODS ACT 1915. 1717

Trade Martt Act 1890.

"False trade description."

Goods.

1itUtlS.

Persons, &c,"

(d) the material of which any goods are composed ; or (e) any goods being the subject of an existing patent

privilege or copyright; and the use of any figure word or mark which according to the custom of the trade is commonly taken to be an indication of any of the above matters shall be deemed to be a trade description within the meaning of this Part.

" False trade description " means a trade description which is false in a material respect as regards the goods to which it is applied and includes every alteration of a trade descrip­tion whether by way of addition effacement or otherwise where that alteration makes the description false in a material respect, and the fact that a trade description is a trade mark or part of a trade mark shall not prevent such trade description being a false trade description within the meaning of this Part.

" Groods" mean anything which is the subject of trade manu­facture or merchandise.

" Name " includes any abbreviation of a name. "Persons , : "manufacturer dealer or trader " and "proprietor "

include any body of persons corporate-or unincorporate. (2) The provisions of this Part respecting the application of a

false trade description to goods shall extend to the application to goods of any such figures words or marks or arrangement or combination thereof whether including a trade mark or not as are reasonably calculated to lead persons to believe that the goods. are the . manufacture or merchandise of some person other than the person whose manufacture or merchandise they really are.

(3) The provisions of this Part respecting the application of a false trade description to goods or respecting goods to which a false trade description is applied shall extend to the application to goods of any false name or initials of a person and to goods with the false name or initials of a person applied in like manner as if such name or initials were a trade description ; and for the purpose of this enactment the expression false name or initials means as applied to any goods any name or initials of a person which—

(a) are not a trade mark or part of a trade mark ; and (b) are identical with or a colourable imitation of the name or

initials of a person carrying on business in connexion with goods of the same description and not having authorized the use of such name or initial; and

(c) are either those of a fictitious person or of some person not bond fide carrying on business in connexion with such goods.

87. (1) Every person*0* who— Off cesasto (a) forges any trade mark; Or ' trademarks (b) falsely applies to goods any trade mark(*J or any mark so descriptions,

nearly resembling a trade mark as to be calculated to Ib- *•13-deceive; or c.0^6^'06'

(a) A corporation can be convicted of the offences mentioned.—See Christies case, infra.

(6) Defendant was convicted of falsely applying

a trade marl:. There was evidence that she was in possession of a bottle containing spurious liquor, and that there were two other bottles of

1718 GOODS ACT 1915. [,6 GEO. V,

Trade Atari* (<?) makes any die block machine or other instrument for the purpose of forging or of being used for forging a trade mark ; or

(d) applies any false trade description to goods ; or (<s) disposes of or has in his possession any die block machine or

other instrument for the purpose of forging a trade mark; or

(/") causes any of the things above in this section mentioned to be done—

shall subject to the provisions of this Part and unless he proves that he acted without intent to defraud be guilty of an offence against this Part.

(2) Every person who sells or exposes or has in his possession for sale or any purpose of trade or manufacture any goods or things to which any forged trade mark or false trade description'0' is applied or to which any trade mark or mark so nearly resembling a trade mark as to be calculated to deceive is falsely applied*6' (as the case may be) shall unless he proves—

(a) That having taken all reasonable precautions against com­mitting an offence against this Part he had at the time of the commission of the alleged offence no reason to suspect the genuineness of the trade mark or mark or trade description; and

(b) That on demand made by or on behalf of the prosecutor informant complainant or party aggrieved he gave all the information in his power \vith respect to the persons from whom he obtained such goods or things ; or

spurious liquor in tho bar of her hotel. JDefen- goods for sale in the possession of defendants dant stated to the inspector that the persons within the meaning of sub-section 2. from whom sho bought the liquor had always Beer was manufactured in Collingwood, Vic-supplied her with genuine liquor, that she had toria, and was bottled, with labels inscribed not tampered with it, and that she did not think in German, of which the meaning in English was that her husband or children, who somotimes " Export Brewery Company. Munich Beer, servod in tho bar, had done so. She further best quality." The labels also bore a cross with alleged that sho had no intention of defrauding German words, meaning " t rade m a r k " written anybody. Held, that there was evidence to beneath it, and " specially brewed for a hot warrant the justices in concluding that the de- climato," Held, that this was a false trade de­fendant had herself caused the adulteration, and scription within this section.—ChrUlie v. Foster that she had not rebutted the presumption Brewing Company Limited, 18 V.L.E,, 292. which then arose that she had done so with intent (6) Liquor was exposed for sale by F. in a to dofraud, Rattray v. Bowe, 3 A.L.R. (C.N.), bottle bearing a trade mark, and was proved to 3Q, consist of a mixture of soda water with the

Semble, that if liquor to which a trade mark genuine liquor. has boon falsely applied is found in a bottle on Held, that P. was guilty of exposing for sale liconsed premises, the licensee may be convicted goods to which a trade mark had been falsely of falsely applying a trade mark, although he did applied, within the meaning of the section.— not personally sell the liquor.—O'ConnM v. O'Cotmell v. JFuggle, 2 A.L.R., 89. 17 A.L.T., Win&yr, 18 A.L.T., 134. 287.

(a) Certain beer was manufactured and bottled Semble, where, in the case against a licensee to a customer's order by defendants, the labels of an hotel for falsely applying a trade-mark, it affixed to the bottles being purchased by de- is proved that liquor was found in the hotel in a fendants from the customer. The bottles were bottle, to which a trade-mark had been falsely not packed in cases nor paid for. Held, that applied, such proof is evidence to go to a jury defendants did not thus irrevocably appropriate that the fraud was committed with the licensee's the beer, as that as it had not been delivered to knowledge, although he did not personally sell tho customer, nor approved of by him, the beer the liquor.—O'ConntU v. Winsor, 18 A.L.T., 134. had not been already sold, and was, therefore,

No. 2663.] GOODS ACT 1945. 171-9

(c) That otherwise lie had acted innocently .or that the goods or Tratesr«rk* things to which the trade mark or mark or trade " description has been applied were manufactured in or imported into Victoria before the .coming into operation of The Merchandise Marks Act 1889, and that such goods or things were held by him boiifi, fide and without any fraudulent intention—

be guilty of an offence against this Part. (3) Every person guilty of an offence against this Part shall be

liable— (a) on conviction before the Supreme Court or a court of general

sessions of the peace to imprisonment with or without hard labour for a term of not more than two years or to a penalty of not more than One hundred pounds, or to both imprisonment and penalty as aforesaid ; and

(b) on summary conviction before a court of petty sessions to imprisonment with or without hard labour for a term of not more than four months or to a penalty of not more than Twenty pounds, and in the case of a second or subse­quent conviction to imprisonment with or without hard labour for a term of not more than six months or to a penalty of not more than Fifty pounds; and

(c) in any case to forfeit to His Majesty every chattel article instrument or thing by means of or in relation to which the offence has been committed.

(4) The court before which any person is convicted under this section may order any forfeited articles to be destroyed or otherwise disposed of as the court thinks fit.

(5) If any person feels aggrieved by any conviction made by a court of petty sessions he may appeal therefrom to a court of general sessions of the peace. Every such appeal shall be subject to the pro­visions of any Act for the time being in force regulating generally .the procedure on appeals from justices to courts of general sessions of the peace.

(6) Any offence for which a person is nnder this Part liable to punishment on summary conviction may be prosecuted before and any articles liable to be forfeited under this Part may be forfeited by a court of petty sessions. Provided that if any person charged with an offence under this section before a court of petty sessions objects to such charge being tried by such court, then the justices then present shall deal with such charge in the same manner as other charges which may be prosecuted by indictment or presentment may be dealt with ; and every person charged with an offence uuder this section shall on appearing before a court of petty sessions and before the charge is gone into be informed of his right to be tried on indictment or presentment and if he requires be so tried accordingly.

88. A person shall be deemed to forge a trade mark who either— Forcing trade r \ -j.1 J. i ± £. i.1 - i j> 1.1 j. 1 i i mark. {a) without the assent ot the proprietor or the trademark makes Jb e u

that trade mark or a mark so nearly resembling that so & si vict. trade mark as to be calculated to deceive ; or c-2a- *• -•

(b) falsifies any genuine trade mark whether by alteration addition effacement or otherwise ;

1720 GOODS ACT 1915. [,6 GEO. V.

Trad* tfarti ActlSK),

Applying m&fks anci descriptioiifl-lb. s. 15. 60 & 51 Vict. c. 28 s. 5.

Exemption of certain persons employed in ordinwy course of business.

Jd. s. X&»

l b . & 6.

and any trade mark or mark so made or falsified is in this Part referred to as a forged trade mark.

Provided that in any prosecution for forging a trade mark the burden of proving the assent of the proprietor shall He on the defendant.

89. (1) A person shall be deemed to apply a trade mark or mark or trade description to goods who—

(a) applies it to the goods themselves; or (t>)

(c)

applies it to any covering label reel or other thing in or with which the goods are sold or exposed or had in possession for any purpose of sale trade or manufacture ; or

places encloses or annexes any goods which are sold or exposed or had in possession for any purpose of sale trade or manufacture in with or to any covering label reel or other thing to which a trade mark or trade description has been applied; or

(d) uses a trade mark or mark or trade description in any manner calculated to lead to the belief that the goods in connexion with which it is vised are designated or described by that trade mark or mark or trade description.

(2) The expression " covering" includes any stopper cask bottle vessel box cover capsule case frame or wrapper, and the expression " label" includes any band or ticket.

A trade mark or mark or trade description shall be deemed to be applied whether it is woven impressed or otherwise worked into or annexed or affixed to the goods or to any covering label reel or other thing.

(3) A person shall be deemed to falsely apply to goods a trade mark or mark who without the assent of the proprietor of a trade mark applies such trade mark or a mark so nearly resembling it as to be calculated to deceive but in any prosecution for falsely applying a trade mark or mark to goods the burden of proving the assent of the proprietor shall lie on the defendant.

90. Where a defendant is charged with making any die block machine or other instrument for the purpose of forging or being used for forging a trade mark or with falsely applying to goods any trade mark or any mark so nearly resembling a trade mark as to be calcu­lated to deceive or with applying to goods any false trade description or causing any of the things in this section mentioned to be done and proves—

(a) That in the ordinary course of his business he is employed on behalf of other persons to make dies blocks machines or other instruments for making or being used in making trade marks or (as the case may be) to apply marks or descriptions to goods, and that in the case which is the subject of the charge he was so employed by some person resident in Victoria and was not interested in the goods by way of profit or commission dependent on the sale of such goods; and

No. 2663.] GOODS ACT 1915. • 1721

(J>) That he took reasonable precantions against committing Trade araru the offence charged ; and **K °"

(c) That he had at the time of the commission of the alleged offence no reason to suspect the genuineness of the trade mark or mark or trade description ; and

(d) That lie gave to the party aggrieved all the information in his power with respect to the persons on whose behalf the trade mark or mark or description was applied—

he shall be discharged from the prosecution but shall be liable to pay the costs incurred on behalf of the prosecution unless he has given due notice to the prosecutor informant or complainant that he will rely on tlie above defence.

91. Where a watch-case has thereon any words or marks which Application of

constitute or are by common repute considered as constituting a de- tn'tchc *0 scription of the country in which the watch was made and the watch ;*.«. IT. bears no description of the country where it was made, those words oreo&sivict marks, shall pnm& facie be deemed to be a description ot that country within the meaning of this Part, and the provisions of this Part with respect to goods to which a false trade description has been applied and with respect to selling or exposing or having in possession for sale or any purpose of trade or manufacture goods with a false trade description shall apply accordingly, and for the purposes of this section the expression '' watch " means all that portion of a watch which is not the watch-case.

92. In any indictment presentment information pleading pro- Tmde mark how

cceding or document in which any trade mark or forged trade mark is p™"^ ,n

intended to be mentioned it shall be sufficient without further descrip- a.,. is. tion and without any copy or fac-simile to state that trade mark or n> <*. 9. forged trade mark to be a trade mark or forged trade mark.

93. In any prosecution for an offence against this Part— Rule as to . i - i r t - t j - i i . */* i i I i t J.L evidence.

(1) A deiendant and his wiie or her husband (as the case may rt-,, w_ be) may if the defendant thinks fit be called a s^ witness, ib. «.». and if called shall be sworn and examined and may be cross-examined and re-examined in like manner as any other witness.

(2) In the case of imported goods, evidence of the port of ship­ment shall be primd, facie evidence of the place or country in which the goods were made or produced.

94. Any person who beiDg within Victoria procures counsels aids Punishment abets or is accessory to the commission without Victoria of any act aoc*9aonies-wlncli if committed m Victoria would under this Part be a mis-Ib* n demeanour shall be guilty of that misdemeanour as a principal and be liable to be presented proceeded against tried and convicted in any bailiwick in which he may be as if the misdemeanour had been there committed.

95. (1) Where upon information for an offence against this Part Search warrant,

either a summons requiring the defendant charged by such information Jfr- «•*'• to appear to answer the same, or a warrant for the arrest of such IbB*12-defendant has been issued, and either at the time of the ,issue of the

1722 • GOODS ACT 1915. [,6 GEO. V.

Trods Marti summonn so warrant to ra any yime ehereaftee rny yjstice ei satisfied jettsoo. by information 0n oath that there is reasonable cause to suspect that

any goods or things by means of or in relation to which such offence has been committed are in any dwelling house tenement ship or vehicle of the defendant or otherwise in his possession or under his control in any place, such justice may issue a search warrant under his hand by virtue of which it shall be lawful for any member of the police force named or referred to in the warrant to break and enter such dwellino- house tenement ship vehicle or place at any reasonable time by day and to search there for and seize and take away those goods or things * anci &iiy froocls OJ* tilings seized uncler smy

such warrant shall be broueb't before a court of petty sessions for the "purpose of its beincf determined whether the same are not liable to forfeiture under this Part.

(2) I f the owner of any goods or things which if the owner thereof had been convicted would be liable to forfeiture under this P a r t is unknown or cannot be found, an information or complaint may be laid for the purpose only of enforcing such forfeiture, and a court of-petty sessions may cause notice to be advertised stating tha t unless cause is shown to the contrary a t the t ime and place named in the notice such goods or things will be forfeited, and at such time and place the court, unless the owner or Eiiiv person on his behalf or other person interested in the o'oods or things show cause to the contrary, may order such goods or thin ffs or any of them to be forfeited.

(3) Any goods or things forfeited under this section or under any other provision of this Pa r t may be destroyed or otherwise disposed of in such manner as the court by which the same are forfeited directs, and the court may out of any proceeds which may be realized by the disposition of such goods or things (all trade marks and trade descrip­tions being first obliterated) award to any innocent party any loss he has innocently sustained in dealing with such goods or things.

Limitation of 9 6 . No prosecution for an offence against tins Par t shall be J T T ^ 1 0 " commenced after the expiration of three years next after the commis-oo & si viot. sion no fhe offence oo ro fne eear rexx aftee rhe eirst tiscovery t tereof c °«a. is. |jy £ne p;\vty aggrieved whichever expiration first happens.

Certain-persons 9 7 . No proceedings shall be taken before any justice or court of proceedtng p e ^ v sessions for an offence against this P a r t unless the same are n. i. 2& taken by a person whose rights are impaired or who is specially

aggrieved by the commission of such offence or by the duly appointed attorney of any such person, or unless the same are taken under the direction of or by a law officer or by some person acting under the direction of the Minister/"*

liiK KUotiiwn" 9 8 . No indictment respecting an offence against this Par t shall be recwi'nsftncqbto pre^evre1^ or be presented to or found by a grand jury unless the person prososuto. preferring or present .ng such .nd.ctJen° has Ieen I o u n i ny recog-po. se 24. nisance before a J u d g e of the Supreme Court sb just ice in a sum not c n 8.1.l(s' lesa thab Twenty pounds to prosecute or give evidence ngainst the

• i n • — o i i o i i e •

(a) A direction to prosecute is sufficient, set out.—Christie v. Foster Brewing Oomjianyi although it may not correspond exactly with the Limited, 18 V.L.R., 292. information, if it comprises the offence therein

No. 2663.] GOODS ACT 1915. 1723

person accused or unless such indictment for such offence is preferred under the direction of or by a law officer. Att 18TO"

Provided that nothing in this section contained shall be taken to refer to or affect any presentment made by or in the name of a law officer against a person for any offence against this Part.

99. Where proceedings for an offence against this Part are taken Costs or defence bv indictment or presentment or before a court of petty sessions in its ^P"^60"

lon-" . . . * \ t 1 , 1 i ±vi i f l . i .Bo.

summary jurisdiction by any person, whether a law orhcer or any seesot sivict. person acting under his direction or under the direction of the Minister c* ^ *• u-or any one whomsoever, the court may order costs to be paid to the defendant by the person taking such proceedings or to such person by the defendant, and in making such order regard shall be had to the information given by and the conduct of the defendant and such person respectively.

100. On the sale or in the contract for the sale of any goods to implied which a trade mark or mark or tnide description has been applied the oM^Mig'iods! vendor sliall be deemed to warrant that the mark is a genuine trade ft- >• v. mark and not forged or falsely applied, or that the trade description is £°|^" i7ot" not a false trade description within the meaning of this Part, unless the contrary is expressed in some writing signed by or on behalf of the vendor and delivered at the time of the sale or contract to and accepted by the vendee.

101. Where at the passing of The Merchandise Marks Act 1889 ProvisionsotAcc a trade description was lawfully and generally applied to goods of a description not particular class, or manufactured by a particular method, to indicate ™ru!riyciwes. the particular class or method of manufacture of such goods, the «. j . as. provisions of this Part with respect to false trade descriptions shall ">. e. •a. not apply to such trade description when so applied. Provided that where such trade description includes the-name of a place or country and is calculated to mislead as to the place or country where the goods to which -it is applied were actually made or produced and the goods are not actually made or produced in that place or country, this section shall not apply unless there is added to the trade description, imme­diately before or after the name of that place or country, in an equally conspicuous TDnnucr Avifcti tjjivt HEHHS, the mime of ths i>l*ice or country in which the **O<K1S wore actually made or produced with a statement that they were made or produced there.

102. (1) This Part shall not exempt any person from any action savings, suit or other proceeding which might btvt for the provisions of this Ji»-29-Part be brought against him. ' s ' 1 '

(2) Nothing in this Part shall entitle any person to refuse to maltc a complete discovery or to refuse to answer any question or interrogatory in any action, but such discovery or answer shall not be admissible in evidence against such person in1 any prosecution for an offence against this Part.

(3) Nothing in this Part shall be construed so as to render liable to any prosecution or punishment any servant of a master resident in Victoria who bona fid,e acts in obedience to the instructions of such master and on demand made by or on behalf of the prosecutor informant or complainant 'has given full information as to his master.

1724 GOODS ACT 1915.

lVtKte Marks Act ISfl0 s. 30. False represen­tation as to

M> & 51 Vict. c 28 s. 20.

103. Any person who falsely represents that any goods are made by a person holding a Royal Warrant or for the service of His Majesty or of any Government department shall be liable to a penalty of not m o r f t thl fill TL \ e 6 0 t V fOllllCtS*

Station 2. SCHEDULE.

Number of Act.

1103 ...

1146 .., . v

1422 ,•., 1512 • •• 1750 ••» 1794 ...,

Title of Act.

InstTwnuLiits Act 1890 *»•

Trade Jlforks Act 1890 . . . ¥ • > • - * • -fc

JS&M 0/ 0<M)(is Act ISvHJ • .. +• + Jnffntntiftto Act 1897 ••• Trading Stotdups Act 1901 Ttudiiity StOritvps Act 1902

Extent of Repe&J+

Sections 108 to 115, 216 to 227 (both inclusive) and 229 find 230.

Par t I I . , except section 26.

The whole. 'Che whole. The whole. The whole.

GOVEBNMENT STATIST. [See Friendly Societies Act 1915 ; Marriage Act 1915 ; Registration

of Births Deaths and Marriages Act 1915; Statistics Act 1915; Trade Unions Act 1915.]

GOVEBNOB. [See The Constitution Act; The Constitution Act Amendment

Act 1915.]

HAEB0E EATES. [See Melbourne Harbor Trust Act 1915 ; Geelong Harbor Trust

Act 1915; Marine Act 1915.]