Wright J
'My conclusion is that in such circumstances the intention of the seller must be judged from his acts and from the deliveries which he in fact makes, and that being so, where the breach is substantial and so serious as the breach in this case and has continued so persistently, the buyer is entitled to say that he has the right to treat the whole as repudiated.'
NB Note from that the seller must be judged from his acts.
Later Wright J deals with a provision in the contract which states -
'Each delivery or shipment shall be treated as a separate contract, and the failure to give or to take any delivery or shipment shall not cancel the contract as to future deliveries or shipments. That is a clause which is often found in contracts of this description and which is very difficult to construe, or at least to apply to all possible emergencies. It seems to me, however, that whatever effect it may have - and I am not going to attempt to exhaust the possibilities of this clause - it cannot be construed so as to defeat the rights of the buyer under s.31 of the Sale of Goods Act.'