S.C. 1901. DOYLE V. CANDLE COMPANY. tion, or to the form of the verdict. The jury were unanimous in their verdict, which was, of course, given through the foreman. I think that the jury, by a unanimous verdict for £500, must be taken to have requested a direction that in my NEW ZEALAND opinion such earnings as are mentioned in the 5th section of "The Employers' Liability Act Amendment Act, 1891," would not, under the circumstances, be a fair compensation. The objection, then, must be that my direction, that if the jury took the view which they did take they might assess the damages at any sum not exceeding £500, preceded the request of the jury. It is plain that the defendants could have derived no advantage from a literal compliance with the form of the statute. It appears to me that by agreeing to the issues as stated they invited the course which was taken at the trial, and that by accepting my direction and the verdict of the jury without objection they acquiesced in and cannot now object to it. The objection must be that I misdirected the jury. If so, the case comes within Rule 271 of the Code of Civil Procedure, which provides that a new trial shall not be granted on the ground of misdirection, or erroneous decision on any point of law, or of improper admission or rejection of evidence, unless in the opinion of the Court some substantial wrong or miscarriage of justice has been thereby occasioned in the trial of the action. Here it is plain that there has been no wrong or miscarriage of justice from the omission to follow the form laid down by the statute. It follows from what I have said that the plaintiff must have judgment for £600, the amount of damages assessed by the jury upon the common-law counts, with the costs of the action according to scale. I certify for the extra allowance of fifteen guineas for each of three days beyond the first day occupied by the trial. I allow in addition fifteen 'guineas for the costs of the three motions, which were heard together. Judgment for the plaintiff. Solicitors for the plaintiff Findlay, Dalziell, & Co. (Wellington). Solicitors for the defendants: Skerrett & Wylie (Wel lington). VOL XX.--45. S.C. IN BANCO. DUFF v. KYLE. WELLINGTON. Contract-Supply of Milk--" All the Year round"-Construction-Statute of Frauds-Continuance beyond Year-Implied Terms of New ContractContract for Supply of Goods daily--Determination-Notice-Sufficiency. 1901. October 25; November 6. STOUT, C.J. WILLIAMS, J. DENNISTON, J. CONOLLY, J. EDWARDS, J. The appellant, a retailer of milk, sued the respondent, a dairy-farmer, upon a contract the terms of which were stated in a letter written by the appellant on the 10th of August, 1899. The material portion of the letter was as follows: "I am prepared to take the milk from you on the "terms specified at our interview this day, as from the 1st September -viz., 30 gallons a day all the year round, at 5d. in summer and 6d. in winter, delivered at the Hutt Railway-station twice daily, at the usual time." The respondent did not reply to the letter, and there was no memorandum in writing of the terms signed by him, but he supplied the appellant with milk in accordance with the terms stated in the letter, as from the 1st of September, 1899, and up to the 17th of June, 1901, when he discontinued the supply. Held, by Stout, C.J., and Williams, Denniston, and Conolly, JJ. (Edwards, J., dissenting),— 1. That, assuming that the original contract was one to supply milk, on the terms named, for a year, no inference could be made from the conduct of the parties that on the expiration of the first year there was a renewal of the contract for another year. 2. That the respondent was entitled to discontinue the supply at any time without notice. 3. (On the facts) That reasonable notice of intention to discontinue the supply had been given. Semble (per Stout, C.J., and Williams, Denniston, and Conolly, JJ.): The original contract was for a year or more, and the parties must be considered as having carried on throughout under the original contract. The contract sued on being, therefore, for a year or more, commencing from a future date, and the Statute of Frauds not having been complied with, the appellant could not recover. Per Edwards, J. (dissenting) :— 1. A tacit renovation of the contract for a second year ought to be held to be implied. 2. In any case, if there is a contract for the daily supply of goods. a reasonable notice is necessary before it can be terminated by either party. 3. Such a notice must be clear and specific, and must indicate when the contract is to terminate; and a mere intimation of intention to charge more than the contract price is not sufficient. THIS was an appeal from a decision of W. R. Haselden, Esq., S.M., Wellington. The case was first argued before Stout, C.J., and Edwards, J., and was then ordered to be reargued before the full Bench of the Supreme Court, The appellant was a dairyman carrying on business in Wellington, and, amongst other things, supplied milk retail to his customers. The respondent was a dairy-farmer at the Hutt. On the 10th of August, 1899, they met and discussed terms upon which the respondent should supply milk to the appellant. The parties disagreed in some respects as to what was said at this interview. They both agreed that the price named was 5d. a gallon in summer and 6d. a gallon in winter up to 30 gallons a day, and 4d. and 5d. for anything over 30 gallons; that from the 1st of September to the end of February were to be treated as summer months, and from the 1st of March to the end of August as winter months-contrary to the custom in the trade, which made a summer of eight and a winter of four months; and that the supply of 30 gallons a day was to commence from the 1st of September then next. The parties differed upon the question whether there was to be a binding contract for a minimum daily supply for a definite term. The appellant's evidence was: "He" [the respondent] "asked me "if I was prepared to take the milk all the year round. I said, "Yes.' Then he stated his terms. Thirty gallons was to be the minimum supplied. He was to commence with the mini"mum on the 1st September if I accepted offer. "No period was mentioned, apart from the expression All the year round.' I do not remember asking for any definite 66 term. I don't think I did I am positive he did not refuse "to fix a term." The respondent's evidence was that he refused to bind himself either as to quantity or time, but stated that he thought he would be able to keep up a supply of 30 gallons a day at least, in the winter as well as the summer. The appellant was to let the respondent know whether he accepted his terms. On the same day the appellant wrote to the respondent a letter the material portion of which was as follows: 666 10th August, 1899. I beg to inform you that I am prepared to take the milk from you, on the terms as specified at our interview this day, as from the 1st September nextviz., 30 gallons a day all the year round at 5d. in summer and 6d. in winter: quantity to be increased as required. All over the 30 gallons to be charged 4d. in summer and 5d. in winter. Delivered at the Hutt Railway-station twice daily at the usual time. You stated that you had now a surplus of 15 gallons daily. You might start on Monday next and send me the 15 gallons. The respondent did not reply to this letter, but began supplying milk. He supplied 15 gallons a day as from the 15th of August, 1899, and 30 gallons a day-or more, as ordered S.C. 1901. DUFF v. KYLE. S.C. 1901. DUFF v. KYLE. from time to time-as from the 1st of September, 1899. The supply was continued until the 17th of June, 1901. upon the same terms. Shortly before the 21st of May, 1901, a dairy-farmers union, to which the respondent belonged, decided to raise the price of milk, and on the 21st of May, 1901, the appellant and the respondent discussed the question of the future price as between themselves. The following is the account given by the respondent of this conversation: "On 21st May, in con"versation with Duff, he asked me if I intended to charge "union price. I said, 'Yes.' He said, 'That is fixed at 8d.' "I said, 'Yes it is not my fixing, it is fixed by the majority.' "He said, 'Do you intend to charge me that?' I said, 'I "will charge you same as union charge.' I understood he "meant he would pay." The appellant's evidence as to this conversation was that the respondent said he would do what the majority did, and that he (the appellant) said that he would not pay the higher price, and that it was not until the 17th of June that he was definitely asked to pay the higher price. The parties met at 10 a.m. on the morning of the 17th of June at the Wellington Railway-station, when the respondent again stated that he would have to comply with the union's requirement, and the appellant said that his mind was made up, and that he would not pay the union price. They met again at 2 p.m. at the appellant's shop, when the appellant again declined to pay the increased price, and the respondent said he would stop the supply. The respondent did not supply the appellant with any milk that night or afterwards. The appellant thereupon sued him in the Magistrate's Court for £60 damages for breach of contract. The appellant set up that the original contract was to supply on the terms named in the lefter of the 10th of August, 1899, for a year certain. from the 1st of September, 1899, to the 1st of September. 1900; and that, the supply being continued on the same terms after the latter date, a new contract had arisen for another year certain, to the 1st of September, 1901. In the alternative he set up that according to a usage of the trade he was entitled to a month's notice determining the contract. The Magistrate held that, if a contract existed at all for a year in the first instance, there was no implication in law of a renewal for another year. He also found that no usage entitling the appellant to a month's notice was established. He therefore gave judgment for the defendant (now respondent), with costs. The appeal was both upon the law and upon the facts. Skerrett, for the appellant: The contract was either (a) for one year certain, and, if continued beyond one year, then from year to year until determined by reasonable notice; or (b) for one year certain, simply; or (c) a contract determinable at will; or (d) one determinable by reasonable notice. It is immaterial to the appellant whether (a) or (b) is adopted. It is impossible to suppose that either (c) or (d) was meant. It was to the respondent's interest to get rid of his summer milk, and to the appellant's interest to secure a winter supply. The contract clearly contemplates that the milk is to be supplied and taken throughout the year, and the price is regulated accordingly. It will be contended for the respondent that the contract meant simply that the price was to be 5d. in summer and 6d. in winter all the year round. But the words are that a certain quantity is to be supplied and taken daily-namely, 30 gallons all the year round." If the contract for one year expired on the 1st of September, 1900, the question is, what is the inference from the parties continuing to deal on the same terins? Four inferences of fact are possible--namely, (a), (b), (c), and (d), as before. Again it is immaterial whether (a) or (b) is adopted. But, for the same reasons as before, the inference is irresistible that continuance for another year, at all events, was intended. An implication of law. is not necessary. It is an inference of fact: Crears v. Hunter(1); Ex parte Ford, In re Chappell (2): Anson on Contracts (3). There are several classes of cases in which a renewal is implied-contracts of service, tenancies, and partnership. Where there is a contract for a year and a continuance beyond the year, a renewal for a year is implied. In the master-andservant cases the inference is always one of fact: Wood v. The Wellington Woollen Company(4); Shortt v. Laery(5); Beeston v. Collyer(6); Baxter v. Nurse(7); Lowe v. Walter(8). [EDWARDS, J.-In Williams v. Byrne (9) Mr. Justice Patteson spoke of this doctrine of renewal as applying to all yearly contracts.] (1) 19 Q.B.D. 341, 345. (2) 16 Q.B.D. 305, 307. (3) 9th ed. 17. (4) 14 N.Z. L.R. 296, 300. (5) 11 N.Z. L.R. 17. (6) 4 Bing. 309, 311; 5 L.J. (O.S.) C.P. 180. (7) 6 Man. & Gr. 935; 13 L.J. C.P. 82. (9) 7 A. & E. 177; 6 L.J. K.B. 239. |