APPEAL DISMISSED

Dominion, Volume 24, Issue 68, 13 December 1930, Page 24

APPEAL DISMISSED

Eltham Dairy Company CHANGE IN ARTICLES By a unanimous judgment delivered on Wednesday the Court of Appeal dismissed the ease brought by the Eltham Cooperative Dairy Comany, Limited, against William Johnson, of Ngaere, farmer, in which the company appealed from a judgment which had been obtained against it. Respondent had claimed in the lower court the sum of £lOl/16/7 for butter-fat supplied to the company. He had been associated with the concern since 1911, but the articles of the company had been changed by a special resolution in 1917, of which Johnson claimed he remained in ignorance. At the hearing of the appeal in March last, their Honours the Chief Justice (Sir Michael Myers), Sir Alexander Herdman, Mr. Justice Blair, Mr. Justice Smith, and Mr. Justice Kennedy were on the bench. Messrs. A. H. Johnstone and J. L. Weir appeared for the appellant company and Messrs. A. Chrystal and 0. C. Mazengarb for the respondent. In delivering the judgment of Mr. Justice Blair, Mr. Justice Kennedy and himself, the Chief Justice discussed the relationship of Johnson to the company, as a shareholder and supplier. , ~ , “In the present case,” he observed, “the contract between the respondent as a supplier and the company is constituted by the delivery and acceptance of the produce. The terms upon which the produce was delivered by the supplier and accepted by the company as at the date when such supply and acceptance commenced, are to be found in the articles of 1910 to which reference has been made. The parties must be assumed to have agreed that these were the terms of the contract. In effect, the company said to the respondent, ‘You are not bound to supply, but, jf you do? these will be the terms on which we .accept your produce; and the respondent in effect replied, ‘Very well, I will supply on those terms.’ •,•••• x , , “The learned Judge in the Court below has found as a fact that the respondent had no notice or knowledge that the Articles of Association had been altered, and the company therefore seeks to rely upon the dictrine of constructive notice. In our opinion that doctrine has no application to a case like the present one. It was not until the 1924-1920 season when for a period of some months the respondent had supplied only portion of his milk and butter-fat to the company that the company sought to pay him on a basis different 'from that which had previously been acted upon, and until then, as the learned Judge in the Court below has found, the respondent had no notice of the alterations made in 1917. The company has only itself to blame for the position in which it now finds itself in its relations with the respondent. Its proper course when the articles were altered in 1917 was to give every supplier express notice of the alteration having been made.” . In the opinion of the Chief Justice and their Honours associated with him, the appeal should be dismissed. This was the opinion, too, of the remaining members of the Court, who gave separate judgments.