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RDG
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Without having
read Murphy, J.'s judgment, I answer respectfully (and I hope not rashly),
"Hear! Hear!", to Mr Hedley's message. In so far as I have understood the
correspondence, I respectfully submit there to be three possibilities all
of which, not surprisingly, Chalmers may by analogy be seen to have covered
in the Sale of Goods Act 1893:
First, the farmers could not take advantage of their own wrongful failure
to appoint an engineer by claiming that it constituted a frustration of
the agreement to pay for the extra work; and so they were regarded as
having repudiated the agreement and thus liable on a quantum meruit or
in damages - cf. s. 9(1) and (2).
Secondly, the failure was a genuine frustration, which the parties chose
to ignore; and so the farmers were liable on a quantum meruit - cf. s.9(1).
Thirdly, the failure was by mutual consent; accordingly, there was a
variation of the agreement; but the price of the extra work was not fixed
by the terms of the variation; and so an undertaking to pay on a quantum
meruit was necessarily implied - cf. s. 8(2).
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