S.C. 1901. DUFF 2. KYLE. The tenancy cases are quite plain. In these cases also the inference is one of fact: Elder v. Gray(1). Gray(1). But renewal for another year is always inferred from continuance after a tenancy for one year. No doubt a partnership continuing after the expiration of a term without express agreement is determinable at will: Neilson v. Mossend Iron Company(2); but Lord Watson there speaks of this as a special implied term imposed by law in case of a partnership. Telegraph Despatch and Intelligence Company v. McLean(3) is another case of implied contract. Hamlyn & Co. v. Wood & Co.(4) shows that the question depends on the particular facts of each case. In Hoddesdon Gas and Coke Company (Limited) v. Haselwood (5) there were no surrounding circumstances to warrant any inference, and the plaintiff had never bound himself to take any gas or any particular quantity. Assuming that there was not a renewal for a year, it must at all events be inferred that in a contract of this class, to supply a business and take the output of a dairy, some reasonable notice of determination was intended. The case is not within the Statute of Frauds. Cawthorn v. C'ordrey(6) was a much stronger case than this. It was, however, distinguished in Britain v. Rossiter(7). But, in any case, the contract made on the 1st of September, 1900, was a new contract, and was for a year only from that date. Even if the first contract was The not actionable, it can be used as evidence of the second contract, which is the one sued on: Beeston v. Collyer(8). contract complies also with section 6 of "The Sale of Goods Act, 1895," there having been part delivery and part acceptance amounting to a recognition of a contract: Page v. Moryan(9); Benjamin on Sales(10); Ker and Pearson-Gee on the Sale of Goods Act(11); Tomkinson v. Staight(12). Dalziell, for the respondent: -There was no contract at all. The parties simply met and arranged the terms upon which any milk supplied would be supplied. The words "all the year round" were put in the letter because the respondent had wanted to know whether the appellant's business could take as much as 30 gallons a day at all times of the year, so that he might know what he had to anticipate and provide for; but there was no contract either for a definite period or until notice. The words "all the year "round" were used with reference to the quantity and price, and not to a fixed period of contract. The evidence was that it is not customary for dairymen to commit themselves for a definite time. This is a contract for the sale of goods, and must therefore be a contract for a definite quantity, either expressed or ascertainable by means expressed in the contract. If the contract was for twelve months, then until the twelve months have expired the quantity is not known and the price not payable. If the contract was until the expiration of a reasonable notice, then the supply would have to continue during the period of a reasonable notice. The contract would thus be for a reasonable quantity — an indefinite quantity, which cannot be in the case of a sale of goods. If there had really been a contract for a term, the parties would at the end of the term have met and entered into a fresh arrangement. Nor does the evidence show a contract to supply until reasonable notice given. The rule as to the continuance of a partnership beyond the original term is in the respondent's favour. In Frost v. Moulton (1) there was a subpartnership with no term expressed, and it was held that none would be implied from the term of the original partnership. The hiring cases are distinguishable. At common law, a general hiring is a hiring for a year: Beeston v. Collyer(2); and if another year is entered upon, that again is a general hiring, and therefore for a year. The rule is not based on implied renewal for the original term. If it was, it would have to be said that on a hiring for nine months, and then a continuance, there would be another hiring for nine months. In the case of tenancies from year to year also the rule is based upon an implication of law. So also in the case of weekly tenancies. In all these cases there is a continuing arrangement. A weekly tenancy is a continuing tenancy determinable by a proper notice: Bowen v. Anderson(3). That is not so in the case of the supply of goods. No notice is required in a case of the kind: Hoddesdon Gas and Coke Company (Limited) v. Haselwood(4); Hamlyn & Co. v. Wood & Co.(5); Gilmour v. McLeod Bros. (Limited)(6), which shows that parties are not to be bound by an (1) 21 Beav. 596. (2) 4 Bing. 309; 12 Moore, 552; 5 L.J. (O.S.) C.P. 180. (3) [1894] 1 Q.B. 164. (4) 6 C.B. N.S. 239; 28 L.J. C.P. (5) [1891] 2 Q.B. 488. (6) 12 N.Z. L.R. 335. S.C. 1901. DUFF V. KYLE. implied term unless the inference is inevitable. The dictum in Williams v. Byrne(1) does not go so far as to include contracts generally. Wood v. The Wellington Woollen Company (2) is not necessarily inconsistent with Shortt v. Laery(3), in which it was held that reasonable notice is only required where it is so established by custom. Skerrett, in reply: "All the year round is not indefinite: it means either for a year certain, or yearly. [WILLIAMS, J.-Suppose the original contract was not for one year, but from year to year, then are you not suing under the original contract, a contract not to be performed within a year, and so you would be out of Court by reason of the Statute of Frauds?] A contract to be within the Statute of Frauds must be a contract which by reason of its terms cannot be performed within a year. [WILLIAMS, J.--But if the contract was entered into some days before the commencement of the year, then you are within the statute in respect of the first year.] Every contract from year to year is a contract for one year simply. Here the conduct was definite enough to import an agreement for a renewal for another year. STOUT, C.J.: Cur. adv. vult. This is an appeal from the Stipendiary Magistrate at Wellington, both on the law and the facts. The claim is for £60 damages for the breach of a contract to supply milk. The contract was an oral one. The appellant, who was the plaintiff in the Court below, wrote a letter to the respondent in which it is alleged the terms of the contract were set forth. The respondent did not reply to the letter, but began supplying milk. The material part of the letter is, “I beg to inform you that 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; quantity to be increased as required. All over 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. (1) 6 L.J. K.B. 239, 240; 7 A. & E. 177. (2) 14 N.Z. L.R. 296. You might **start on Monday next and send me the 15 gallons.". This letter was dated the 10th of August, 1899, and the supply of the surplus" began on the 15th of August, and the general supply continued till the 17th of June, 1901, when the respondent declined to supply more. He had asked for an advance in price, and the appellant refused to give any advance. The question of an extra price had been discussed between them about a month before the 17th of June. The first question that arises is, what is the meaning of the phrase "all the year round"? It was contended that there were four possible meanings of the contract (a) it might mean a supply for one year certain; (b) it might mean for one year at least and until thereafter determined by a reasonable notice; (c) it might mean for one year and so on from year to year; (d) it might mean a contract determinable at will. The contract is, in my opinion, so indefinite that it is impossible to determine with any degree of certainty what it means. The interpretation most favourable to the appellant seems to be the first-viz., a contract for a year certain. If the second, third, or fourth interpretation is accepted, it is clear the appellant cannot succeed. If the second or third, then the contract was not to be performed in a year, and, as it was not in writing, the provisions of the 4th section of the Statute of Frauds would apply, and no action could be brought to enforce the contract. It was not the sale of a definite quantity of milk of which there had been a part delivery. If the fourth interpretation is accepted, then the respondent properly put an end to the contract. Assuming that the first interpretation is the correct one, it was contended that at the end of the first year the mere act of continuing the supply renewed the contract, and that a contract for another year was thereby made. It was argued that the analogy of contracts relating to the letting of lands and the hire of servants should be followed. In the letting of land the law is that if there is a lease for years, and it terminates, and the tenant holds over, paying rent-Right v. Darby(1)—or having by his holding-over impliedly agreed to pay rent-see Dougal v. McCarthy (2)—he becomes a yearly tenant. The contract is not in a strict sense renewed, but those terms of the contract of letting that is ended that are applicable to the new contract apply. What is contended here is that there (1) 1 T.R. 159. (2) [1893] 1 Q.B. 736. S.C. 1901. DUFF v. KYLE. S.C. 1901. DUFF V. KYLE. is by the continuance of the supply a renewal of the contract for the term of the first contract. This is not what happens in a case of tenancy. If the lease has been for a term of seven years, the mere staying in possession and paying rent do not constitute a new term for seven years. A yearly tenancy is created: it is not a renewal of the entire contract. In the case of master and servant a general hiring is deemed a hiring for a year; and if there has been a hiring for, say, seven years and the servant continues on, receiving the same salary, there is not made by implication a new contract for seven years, but there is deemed to be a yearly hiring. In partnership agreements, if there is a partnership for a definite term, and the term ends and the partners go on continuing their relationship, it is clear that there is not a renovation of the contract for a term. The partnership would continue on the same terms: Cox v. Willoughby(1); but it would be a partnership at will: Neilson v. Mossend Iron Company(2). If there is a tender to supply goods at a fixed price and on conditions mentioned, but no term fixed for the continuance of the contract, it is a contract at will: See Hoddesdon Gas and Coke Company v. Haselwood(3). If it could have been shown that under such circumstances the law would have implied that the contract was to last a year, then, no doubt, the appellant would have been entitled to succeed. No authority was cited, or could be cited, to support such a proposition. It was suggested that at the end of the first year there was a new contract formed, with a new term or condition that the contract could be terminated on reasonable notice. The appellant attempted to prove in the Court below that there was such a term in the contract even during the first year. It was admitted that no such term had been agreed on by the parties. It was said that there was a custom in the trade to that effect. The Magistrate held, and properly held, that such a custom was not proved; and counsel for the appellant admitted that he could not ask this Court to reverse the Magistrate's decision on this point. How can a new term, then, that was not in existence in the old contract, be implied in the new? There can be no term implied in a contract unless the implication must necessarily arise: See Hamlyn & Co. v. Wood & Co.(4), per Lord Esher. It is not enough that (1) 13 Ch.D. 863. (2) 11 App. Cas. 298. (3) 6 C.B. N.S. 239; 28 L.J. C.P. 268. (4) [1891] 2 Q.B. 488, 491. |