PAYMENT FOR MILK.

New Zealand Herald, Volume LXVII, Issue 20744, 11 December 1930, Page 18

PAYMENT FOR MILK.

ALTERATION NOT NOTIFIED. DAIRY COMPANY LOSES CASE. DISMISSAL OF APPEAL. [by TEL.EI.in Aril. PRESS ASSOCIATION.] "\VEIjLINGTOX, Wednesday. The Court of Appeal, in a judgment delivered to-day, dismissed the appeal of (he Ell ham Hairy Company against I lie judgment of Mr. Justice Osller on March 28, in which His Honor found for William Johnston, a. Ngaerc farmer, in respect of a claim for .UlOl 16s 7d. bonuses said to be duo from the company for milk supplied to the company.

This judgment was delayed pending a decision in the House of Lords of a case which it was thought would affect it. The judgment of the Chief Justice, Sir Michael Myers, and Mr. Justice Blair and Mr. Justice Kennedy, thai tho appeal should be dismissed, was delivered by the Chief Justice, wlio said: "In the present case I lie contract between tho respondent, as supplier, and tho company, is constituted by tho delivery and acceptance pf product*. The terms on which the produce Mas delivered by the supplier, and accepted by tho company, as at the date when such supply and acceptance commenced, are to be found in the articles of 3910. Tho parties must I>q assumed to have agreed that these were the terms of contract.

"In 1917 the company alterod it s articles by special resolution, and radically altered I lie terms of dealing with tho supply of butter-fat and milk. Tho alterations did not affect respondent so long as lie supplied all his milk and butter-fat, which he did until 1924. Consequently, ho received payment in tho same way as under the articles that existed prior to 1917. lie would therefore have no knowledge or notice merely from the course of business between the parties that any alteration had been made in regard to payment for milk and butterfat supplied by him to the company. If lie had notice or knowledge of the alteration, and had continued to supply, he would have been deemed bound by the alteration in the articles.

"The Judge in the Court below found as a fact that respondent had no such notice or knowledge, and tho company, therefore, sought to rely upon the doctrine of constructive notice. Ju our opinion that doctrine has no application to a case like the present. ll was not until the 1924-25 season, when, for a period of months, respondent had supplied only portion of his milk and but-ter-fat, that the company sought to pay him on a basis different from that which had previously been acted upon, and until then, as tho Judge in (ho Supremo Court found, 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 respondent. Its proper course, when the articles were altered in 1917, was to give every supplier express notice of the alteration. Respondent, had ho received such a not ice, would then have had the option either of discontinuing his supply to tho company, and making arrangements elsewhere, or continuing on fjie altered terms. This opportunity was not given hirn.'" Judgments to the same effect were written by Mr. Justice llerdman and Mr. Justico Smith. The appeal was accordingly dismissed.