Summers v Commonwealth [1918] HCA 33

Summers v Commonwealth [1918] HCA 33

The contract required delivery of marble blocks sufficiently large to admit of being worked and polished to scheduled sizes, not oversized blocks from which scheduled pieces could later be cut. Trade usage did not modify the clear, explicit contractual terms. As plaintiff could not perform on the agreed contractual basis and the parties' subsequent conduct evidenced mutual abandonment, plaintiff could not recover damages or on a quantum meruit. Upon mutual abandonment, plaintiff was entitled to return of the deposit, but the defendant succeeded nominally on its counterclaim for breach of the covenant against assignment.

Parties
Plaintiff: Charles Francis Summers; Plaintiff: Ellen Peterson; Defendant: The Commonwealth
Jurisdiction
Australia
Judgment Date
25 June 1918
Procedural Posture
Contract Claim and Counterclaim / Judgment After Trial in the Original Jurisdiction
Outcome
Judgment for the plaintiff Peterson for £25 and for the defendant on the counterclaim for 1 shilling.
Legal Topics
Construction of Contract, Trade Usage, Repudiation, Abandonment of Contract, Assignment of Contract
Contract Law Construction of Contract Trade Usage Repudiation Abandonment of Contract Assignment of Contract

Case Brief

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Parties

Charles Francis Summers

Plaintiff

Ellen Peterson

Plaintiff

The Commonwealth

Defendant

Procedural Posture

Contract Claim and Counterclaim / Judgment After Trial in the Original Jurisdiction

Legal Issues

  1. 1 Whether the contractual obligation to supply marble required delivery of blocks conforming exactly to scheduled sizes or permitted larger blocks from which pieces could be cut
  2. 2 Whether trade usage could modify express contractual terms
  3. 3 Whether the parties mutually abandoned or abrogated the contract

Ratio Decidendi

The contract required delivery of marble blocks sufficiently large to admit of being worked and polished to scheduled sizes, not oversized blocks from which scheduled pieces could later be cut. Trade usage did not modify the clear, explicit contractual terms. As plaintiff could not perform on the agreed contractual basis and the parties' subsequent conduct evidenced mutual abandonment, plaintiff could not recover damages or on a quantum meruit. Upon mutual abandonment, plaintiff was entitled to return of the deposit, but the defendant succeeded nominally on its counterclaim for breach of the covenant against assignment.

Court Disposition

Judgment for the plaintiff Peterson for £25 and for the defendant on the counterclaim for 1 shilling.

Orders

  • Judgment for plaintiff Peterson for £25 being the return of the deposit.
  • Judgment for defendant (The Commonwealth) on the counterclaim for 1 shilling.