Macauley and Cullen v Horgan

Judgment Date01 January 1925
Date01 January 1925
CourtSupreme Court (Irish Free State)
Macauley and Cullen

No time fixed for delivery - Delivery and payment concurrent conditions - Seller wrongfully refusing to deliver goods - Measure of damages - Difference between contract price and market price at time of refusal to deliver - Absence of available market at place of delivery - Sale of Goods Act, 1893 (56 57 Vict., c. 71), ss. 28, 51.

In October, 1923, defendant wired to plaintiffs, who were wool merchants in Dublin, offering them wool, and plaintiffs wired in reply. Further telegrams passed between the parties, which the Court held constituted a binding contract for the sale of the wool at the price mentioned —F.O.R. at Cahirciveen, Co. Kerry. No time was fixed for delivery. The defendant not having delivered the wool, plaintiffs sued for damages. Defendant contended that under s. 28 of the Sale of Goods Act, 1893, payment and delivery were concurrent conditions, and that as the plaintiffs neither sent a cheque nor tendered cash for the wool, they could not allege a failure to deliver, or that there was a breach of contract:—Held, that a reasonable time for delivery had elapsed by December 5th, 1923; and, as the wool was not delivered, the defendant must be deemed to have broken his contract. Accordingly, as the defendant was not ready and willing to deliver the wool, though the plaintiffs were ready and willing to pay for it, defendant's contention was unsustainable. Section 51 of the Sale of Goods Act, 1893, deals with damages for non-delivery, and s.-s. 3 provides: "Where there is an available market for the goods in question, the measure of damages is primâ facie to be ascertained by the...

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