Tallerman & Co Pty Ltd v Nathan's Merchandise (Vic) Pty Ltd (1957)PART ISummary of the factsThe dispute arose 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 carried on its business. Two previous binding contracts (Orders No. 58 and No. M57) were made in communications dated May 14, 1951 and August 2, 1951 respectively, each for the sale by the plaintiff to the defendant of 1,000,000. Hungarian .22 caliber bullets. Consignment of 1,800,000 bullets for the above orders was shipped from Sydney to the defendant by rail. on 12 February 1952 and was received by a transporter employed by the defendant in Melbourne who deposited the bullets in the defendant's warehouse, where they remained for three days. Arguing that under the terms of the contract, those bullets were to be delivered only on request, l The defendant refused to take delivery of them, and then returned the bullets to Sydney by rail. On March 3, 1952, a letter was sent from the plaintiff's attorney requesting that the defendant accept the "contract goods" and that otherwise steps would be taken to enforce the plaintiff's legal rights. On March 6, the defendant's lawyers responded by reiterating their position that it had been established from the beginning that the delivery of bullets should only occur when the defendant needed them, to fulfill his clients' orders. Furthermore, the defendant's lawyers raised the further issue that the location of delivery in Melbourne did not comply with the contractual terms. However, in correspondence dated 21 March 1952 the defendant instigated a change in the legal position of both parties by offering to commence "without prejudice" the delivery instruction concerning the remainder of the projectiles, provided that the final delivery would not be made later than on September 30, 1952. The plaintiff first rejected this offer on April 3, but on June 4, 1952 a second critical letter was sent from the plaintiff's attorney stating that he accepted the defendant's proposal. On July 8, 1952, the defendant proposed to purchase only 800,000 bullets against the contracted figure of 1,800,000 (minus 200,000 delivered and paid for), since the contract of August 2 had not been accepted by the plaintiff who denied it. . And no surrender instruction was given by the defendant by September 30th.