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

Crossley v. Harris [1813] NSWKR 13; [1813] NSWSupC 13

non-performance of agreement - wheat

Court of Civil Jurisdiction
Bent J.A., 25 October 1813
Source: Court of Civil Jurisdiction Proceedings, 1788-1814, State Records N.S.W, 5/1109 (case no. 390)[1]

[404] George Crossley of Sydney, plaintiff John Harris of Sydney, defendant

Writ of ¿100.0.0 sterling for non performance of a certain agreement dated 12 June 1813, made and entered into between the said John and the said George for the payment of a certain sum of money and for goods sold and delivered by plaintiff to defendant at his request.

The defendant appears in person and denies a course of action.

Richard Hughes sworn and examined for the plaintiff, says I am subscribing witness to the deed produced. I saw John Harris put his mark to it. It was read over to him before he put his mark to it either by Mr Crossley or myself. I rather think it was by me. The defendant was quite sober and seemed to understand it perfectly. It was executed at plaintiff's house. I wrote one or two letters to defendant by plaintiff's desire, calling on him to fulfil his agreement. Harris called upon Mr Crossley after the demand was made, I heard him say the wheat was stale while he was in gaol. Mr Crossley said that he knew it was not true.

The agreement is put in and read.

[405] Richard Hughes cross-examined for the defendant, says this agreement was entered into at Mr Crossley's house in the evening. I saw no grog drunk at the time. I did not perceive that Harris had drunk any thing that day. He was in debt at the time to Mr Crossley. That has been paid by Mr Harris I believe. I think the agreement was read by myself. After the reading and before the signing Harris went out by himself and came in again. He was to furnish all the wheat he did not want for his own use, and if he sold any to any other person he was to forfeit ¿100.

Not any wheat has been delivered to Mr Crossley pursuant to this agreement.

Patrick McMahon sworn and examined for the plaintiff, says about the time that the third defendant was put in gaol at the suit of one Ford, and he was under arrest, I was present at a conversation which took place between the plaintiff and defendant at the plaintiff's house. He was taken them by his own desire to see if Crossley would discharge this execution. He asked Mr Crossley to advance the money should he be arrested. Crossley said he would pay for it as he received it, but would not advance any. This was some time in June. He was in custody two or three weeks. I read over to Harris the agreement. He said he would send the wheat if Mr Crossley would advance the money.

John Dougan sworn, examined for the plaintiff says I was employed by Harris in the month of July last to thresh out wheat for him. I threshed out for him 89 bushels and one half with Samuel Winter. That was the whole he possessed at the time. Winter and I had 14 bushels of this wheat. Mr Hobby had three or five. I believe the rest was delivered to Benjamin Cook, his wife's son. I heard Harris frequently say he had entered into an agreement to let Mr Crossley have 100 bushels of wheat.

Questioned by the defendant, says I heard Harris had found some wheat to seed his land. Harris had a large family. He has a wife with four or five children.

[406] Benjamin Cook sworn and examined for the plaintiff, says I brought down to the best of my opinion 45 bushels of wheat from Harris to Sydney to his wife's house. I do not know what has been done with it. I brought it down at different times. It was a good bit before the races. I never heard Harris say how the wheat was disposed of.

John Mitchell sworn and examined for the plaintiff, says I was present some days ago at a conversation between the plaintiff and defendant. Defendant said he had not supplied Mr Crossley with wheat as he had agreed to, and that he hoped Mr Crossley would be as easy with him as he could. He agreed to give Mr Crossley ¿50. It was his own offer. I drew up a confession to that effect but he walked off without signing it. I recollect Mr Crossley telling him, if he would go and bring 100 bushels of wheat in the market, he would pay him seven shillings a bushel for it.

Questioned for the defendant, says when Harris came in he addressed Mr Crossley. He said he came to see what could be done. It was a hard case under this penalty that he laboured under, that he should have to pay if he was sued for. That he had certainly entered into the agreement. Mr Crossley told him that money he had been paying for wheat, which was more than he agreed to let him have it for. Mr Crossley said he supposed this was the reason of his not letting him have the wheat. Harris said let us half it. The confession was drawn up, and he appeared to sign, but he afterwards walked off.

The plaintiff closes his case.

The defendant's statement is read.

Samuel Witney sworn and examined for the defendant, says I assisted Dougan to thresh defendant's wheat. There were 89½ bushels threshed out by us. We received nine bushels of this threshing. Harris sowed an indescribable quantity that season. I lent him 13 bushels of wheat myself to seed his land. He paid me back five bushels. He sowed ten acres with wheat afterwards. I suppose at that time it won't take two bushels an acre. While Harris is in gaol his government man was taken up on a charge of felony. His woman left the place at the same time. His woman [407] was left without any person to take care of it, but this was before we threshed out the wheat. I believe the wheat given to Mr Hobby was on account of Paul Lutherborough whose wheat was burnt by accident. I subscribed three bushels myself. We all subscribed. I do not consider that out of the 89 bushels, Harris could have 50 for his own use. Harris lives in Sydney and did when Cooke brought down the wheat.

The witness withdraws.

The defendant closes his case.

The court after mature deliberation gives judgment for defendant that this suit be dismissed.


[1] In the hands of George Crossley, the sale of goods sometimes became entangled in the manipulation of others' debts. Were contracts enforceable as they were written, or was an element of fairness taken into account?

See B. Kercher, Debt Seduction and Other Disasters: the Birth of Civil Law in Convict N.S.W., Federation Press, Annandale, 1996, 155.

Published by the Division of Law, Macquarie University