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Decisions of the Superior Courts of New South Wales, 1788-1899

Wright v. James [1803] NSWKR 2; [1803] NSWSupC 2

carriage of goods

Court of Civil Jurisdiction

Atkins J.A., 9 April 1803

Source: Sydney Gazette, 10 April 1803, 2 [1]

This action was brought in consequence of verdict granted by the civil court to George Salter, whereby the plaintiff Wright, who stood as defendant in that action, was to pay the value of 104 bushels of wheat, for which it appeared to the court he had rendered himself responsible, yet with the exclusive privilege of bringing an action of indemnity against this defendant (Mr James) under whose care, as it was then argued, the wheat was, when it sustained a damage which reduced its value one half.

Upon a nice and minute investigation of the transaction, it appeared that the above quantum was intended to be lodged in the Parramatta store by the plaintiff, for and on the account of Captain Scott (to whom Mr James was agent). The wheat had been brought round from Hawkesbury, and Mr James had been apprised by Salter that such a quantity lay in a boat at the wharf, which was to be deposited in the Parramatta store on Captain Scot's account. He was at the same time requested to furnish a boat for its conveyance from Sydney to Parramatta, which was accordingly complied with. Mr James went to Parramatta with the wheat, which was accidentally swamped in the passage up. Salter attended at the wharf at Parramatta, and received the wheat, which, under the existing circumstances, was inadmissible as a receipt for government. The plaintiff requested permission to lay it in the public granary until measures respecting it should be adopted; and afterwards, but hearing that any of the above parties had any wise interested themselves in its disposal, and being urged to withdraw it from the granary to make room for government grain, had at his own risque, and under the persuasion that it every day declined in value, by reason of the damage sustained as also ordered it, to be disposed of by public auction, for the benefit of those to whom it might afterwards fail to be accountable for it. Mr Hassall, who was called by the defendant, declared the wheat, which had been bought by the plaintiff, Wright, not to have been worth more than as per bushel, though he had given four [shillings] for it. The wheat had been borrowed by him of Salter, but, from the circumstances already stated, viz. its having been committed to the care of Mr James in perfect condition, and he's (the plaintiff) not having had any charge of it until after the accident had happened, he did not conceive that the loss should have been his, and therefore desired that Salter might have recourse to the decision of a civil court, before whom a verdict was obtained against Wright, as it was manifest that Salter had had no interest whatever in the transaction, which lay wholly between the parties in the cause now pending. Much altercation took place, in which the plaintiff contended, the wheat, or any other property received by an agent, he should be held responsible for until it was delivered, agreeable to the instructions he had received, and that as this property had been taken charge of by Mr James, and had been swamped while in his possession, he thought himself justifiable in bringing this action, to recover the amount of the loss sustained when sold.

The defendant argued on the other hand, that he had not received the wheat into his possession as the property of his principal, for such it was not intended it should be considered, until it had been taken into the Parramatta store, and a government receipt obtained for it. He had, he said at the particular instance of Salter, whom he considered as the plaintiff's agent, procured a boat for the conveyance of the wheat, merely to oblige the parties, and that no stronger proof could be required of the plaintiff or Salter still holding the responsibility, than the circumstances which had appeared in evidence, of the latter is having received it at Parramatta wharf, and it's being afterwards lodged in the public granary at the instance of the plaintiff.

When the whole of the evidence was gone through, the Judge Advocate took a summary survey of the preceding, and commented upon the several parts of it, finally giving it as his opinion, that as the plaintiff had ordered the sale of the property with the [advice] or consent of the defendant, he had taken the responsibility upon himself exclusively, and therefore thought he could not claim a verdict which the court, after a few moments deliberation, returned in favour of the defendant.

Note

[1] Much of the colony's wheat was grown on the banks of the Hawkesbury River . From there, it was carried by ship via an ocean passage to Sydney . One of the risks of this was that the wheat might be swamped, or doused in sea water, so reducing its value. This case shows that the same risk applied elsewhere as well. Who was responsible for such accidents? The carrier? An agent or bailee of the owner? The owner of the wheat? In good condition, wheat was usually valued at the price the government was willing to pay for it at one of the government stores.

            For discussion of the complexities in these cases, see Kercher, Debt Seduction and Other Disasters: the Birth of Civil Law in Convict N.S.W. , 115-118.

Published by the Division of Law, Macquarie University