Buttrose J:

This was an action for the price of goods sold and delivered by the plaintiffs to the defendants at the defendants' request. The claim was for $9,273.53 but the defendants admitted liability for the sum of $4,847.35 for which the plaintiffs signed judgment and ultimately obtained payment after levying execution. The defendants while admitting having been supplied with the goods denied liability in respect of the balance, namely, $4,426.18. The defendants' case on the pleadings, by which of course they are bound, was that by a verbal contract made between the parties about the beginning of 1957 it was agreed that the plaintiffs should supply the defendants with materials in respect of their various contracts for sanitary installations upon written orders given by the defendants to the plaintiffs. No prices were agreed upon but it was all implied term of the verbal contract that the goods were to be at reasonable prices or alternatively at fair market value and a quantity of them were not.

The defendants' case at the trial was firstly that it was an express term of the contract that the plaintiffs would supply the goods at fair market price and secondly that the plaintiffs had agreed to give the defendants a credit note for the amounts alleged to be overcharged. In the view I take it is not open to the defendants on the pleadings as they stand to raise these defences.

In any event, however, I am quite satisfied that it was not an express term of the contract that the goods should be supplied at fair market price or that the plaintiffs ever agreed to give a credit note as alleged by the defendants. That the plaintiffs were prepared to and did in fact check their bills at the defendants' request in order to see if there were any items which had been overcharged there can be no doubt, but I am quite satisfied on the evidence that the plaintiffs never agreed to give a credit note in respect of them.

Now it was not in dispute that there was no fixed price agreed upon between the parties and the defendants relied on s. 8 of the Sale of Goods Act, 1893 which reads as follows:-

8.(1) The price in a contract of sale may be fixed by the contract, or may be left to be fixed in manner thereby agreed, or may be determined by the course of dealing between the parties.

(2) Where the price is not determined in accordance with the foregoing provisions the buyer must pay a reasonable price. What is a reasonable price is a question of fact dependent on the circumstances of each particular case.

The defendants contended that as no price was agreed upon they were only liable to pay a reasonable price by virtue of sub-section (2) and as the price charged by the plaintiffs was unreasonable, any such sums as were in excess of what was reasonable could not be recovered. But before the provisions of the subsection can be called in aid, it must first be established that the price cannot be ascertained in any of the three ways provided for in sub-section

(1).The evidence of the defendant company's manager was that his company had been dealing with the plaintiffs since 1956 and throughout 1957 and 1958. The facts were that the goods were delivered by the plaintiffs to the defendants at the defendants' request and bills were rendered to the defendants either on the same day as the delivery or within two or three days thereof. At the end of every month a statement of account was rendered showing the total amount of goods delivered during the month and their cost together with any sums outstanding from previous months.

The defendants from time to time paid various sums on account of the general balance due and the 1957 accounts were settled in full in 1958. The defendants continued throughout the whole of 1958 to order more goods, which they admit being supplied with and using, in ever increasing quantities despite the fact apparently that they claimed they were being overcharged in April 1958.

In my view the price was determined