Tallerman & Co Pty Ltd V Nathan's Merchandise (Vic) Pty Ltd (1957)

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Tallerman & Co Pty Ltd v Nathan's Merchandise (Vic) Pty Ltd (1957) 98 CLR 93 PART I Summary of Facts The dispute occurred in Victoria between a registered company, Tallerman & Co Pty Ltd ("the plaintiff") and an incorporated company, Nathan's Merchandise Pty Ltd. ("the defendant), where both parties operated their business. Two previous binding contracts (orders No. 58 and No. M57) were made in communications on 14th May 1951 and 2nd August 1951 respectively, each for the sale by the plaintiff to the defendant of 1,000,000 Hungarian .22 bullets. A consignment of 1,800,000 bullets for the above orders was dispatched from Sydney to the defendant by rail on the 12th February 1952 and was received by a carrier employed by the defendant in…show more content…
Kitto J. verified that whether or not an existing contract is considered to have been rescinded, depends on the intention of the parties involved. When examining the two critical correspondences of 21st March 1952/ June 4th 1952, it was held that no intention by the defendant to discharge the previous 1951 contracts was found; the letters of offer and acceptance did not constitute a new and substituted contract, and hence all conditions of the earlier contracts were to be binding. Assuming that the contracts is of variation, the final substantial issue to be anlaysed was whether the Plaintiff's acceptance of the original contracts was effective for the Defendant to be in breach of its terms. Decision The appeal failed. As the plaintiff voluntarily confined itself to the two correspondences and thus chose not to sue in Victoria, these two letters, under New South Wales law, did not amount to a new contract, and the plaintiff was not protected by the offer and acceptance rule. The majority embraced the view that the result was tried on a conventional basis and would have been judged differently if the Plaintiff had not demanded the case to be determined in Sydney. PART III Implications of decisions for the principles of offer and acceptance The general rule for an agreement to be deemed valid is for

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