APPEAL DISMISSED

Wanganui Chronicle, Volume 73, Issue 446, 11 December 1930, Page 7

APPEAL DISMISSED

DAIRY FARMER'S CLAIM. [Per Press Association.] WELLINGTON, Dec. 10. The Appeal Court delivered judgment to-day in the case of the Eltham Dairy Company versus Johnson, which was hoard on Mar-’ 28. Tho delivery of this judgment was delayed pending a decision in the House of Lords of a case which, it was thought, would effect judgment in the matter. The judgment of the Chief Justice (Sir M. Myers), Justices Blair and Kennedy, holding that the appeal should be dismissed, was delivered by Sir M. Myers. In the course of the judgment his Honour said: “In the present case a contract between respondent as supplier and the company is constituted by delivery and acceptance of produce. The terms on which the produce was delivered by the supplier and accepted by the company as at date when such supply and acceptance commenced, are to be found in the articles of 1919. The parties must be assumed to have agreed that these were the terms of contract. In 1917 tho company altered its articles by a special resolution and radically altered the terms dealing with the supply of butterfat and milk. The alterations did not affect respondent so long as he supplied all his milk and butterfat, which he did until 1914. Consequently he received payment in tho same way as under the articles that existed prior to 1917. He would therefore have, no knowledge or notice merely from tho course of business between the parties that any alteration had boon made in regard to payment for milk and butterfat supplied by him to tho company. If ho had notice or knowledge of the alteration and had continued to supply, he would have been deemed bound, by o alteration in articles. The Judge in the Court below found as a fact that respondent had n« such notice or knowledge and tho company therefore sought to rely upon tho doctrine of constructive notice. In fur opinion that doctrine has no application to a case like tho present. Tt was not until tho 1924-25 season, when for a period of months, respondent had supplied only a portion of his milk and butterfat that tho company sought to pay him on a basis different from that which had previously been acted upon and until then, as the Judge in th® .Supreme Court found, respondent had no notice of alterations made in 1917. The company has only itself to blame for tho position which it now finds itself in its relations with respondent. Its proper course when the articles wcr® altered in 1917, was to give every supplier express notice of the alteration and respondent, had he received such notice, would then have had the option of either discontinuing his supply to tho company and making arrangement! elsewhere, or continuing on the altered terms. The opportunity was not given him.

Judgments to the same effect were also written by Justices Herdman and Smith. The appeal was accordingly dismissed.