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

Kelly v. Clarkson [1813] NSWKR 10; [1813] NSWSupC 10

goods sold and delivered - expectation damages

Court of Civil Jurisdiction
Bent J.A.., 12 October 1813
Source: Court of Civil Jurisdiction Proceedings, 1788-1814, State Records N.S.W, 5/1109-349[1]

[326] Hugh Kelly of Baulkham Hills, plaintiff and Thomas Clarkson of Sydney, defendant

Writ for £80 sterling for goods sold and delivered by the said Hugh to the said Thomas at his request.

The plaintiff appears in person.

The defendant also appears in person, and says that this writ was issued out against him before there was any cause of action.

Michael Marlborough sworn and examined for the plaintiff, says I am one of the subscribing witnesses to the agreement now shewn me. I saw Thomas Clarkson sign it. I wrote the body of it. About the third of September last, Kelly came to me and told me to come to Mr Clarkson's to look over some money for him. I went with him there. They entered him into this agreement which I drew out at their request and both of them signed it. I signed it for Kelly. On the morning of this agreement Kelly had sold Clarkson 14 bushels of wheat for 30 shillings per bushel. He agreed to deliver him the other wheat for 20 shillings sterling a bushel within three weeks, but no time was specified in the agreement. Within three weeks after this time, Kelly called upon me and asked to go with him to Clarkson's to see the wheat measured and have his money. I went with him and Clarkson said the wheat was not so good as what he received before. He said it was fly eaten. But on weighing a bushel of the first wheat and half a bushel of the last wheat, the latter was heavier in proportion by half a pound. I thought it superior to most in the market. Wheat fell in price from the time of the 3rd September from the time of the delivery of this wheat about 10 shillings a bushel. The wheat at this time was in Clarkson's house in 28 bags. He did not measure the wheat. Some were full and some [327] not. Clarkson refused to pay for or to take the wheat.

Cross examined for the defendant, says I was not with Kelly the night the wheat went to Clarkson's house. Kelly has lately slept in my house when he came to Sydney. I mean to say I was not with Kelly at the time he delivered the wheat, but he slept at my house that night. The 80 bushels of wheat was to be partly in white and partly in yellow wheat. The reason was that Kelly had not all of one sort. It might be about 8 o'clock on the morning when I went to Clarkson's to see the wheat measured. Clarkson said he would take the white wheat and pay for it. Kelly said he should not have the one without the other. James McGrath and Gilmore a stone mason were drinking at Clarkson's when I went in. McGrath was apparently in liquor.

The agreement is put in and read.

John McDaniel sworn and examined for the plaintiff, says I saw the wheat which Kelly brought to Sydney market on the 3rd September. I assisted in putting it in bags. I saw the wheat he brought down afterwards also. Eighty bushels were brought down the last time, 53 of which was red and the remainder white. It was red wheat that was brought down the first time and was neither skreened nor eyed. The last 80 bushels was skreened. I do conceive that the 53 bushels of red wheat was better than the wheat brought down the 3rd of September by a shilling a bushel.

Cross examined for the defendant says, I could not see any weevils in the 53 bushels of wheat when it went down. It was as good as man would wish to secure.

The plaintiff closes his case.

The defendant calls the following witnesses.

Catherine Clarkson sworn and examined for the defendant, says I am the defendant's daughter. Kelly brought the wheat in [328] question to Clarkson's house between 7 and 10 o'clock a night. It was either the 16th or 17th of September. My father told him that was not a time of night to look at wheat. The wheat was set down in my father's house and it is there still in the same. Kelly stopped with my father that night.

           Richard Palmer sworn and examined for the defendant, says I live up the hill on the other side of Woolloomooloo. Clarkson and I are building a mill there together. I was present on the morning when the last wheat brought by Kelly was [taled] over and refused. There were 28 bags of it. It was of three sorts, red, white and ordinary. In general I do not think the red wheat equal to the sample in the small canvas bag which I understood it was sold by. I took the sample of the red wheat this day.

The defendant here closes.

The court, upon consideration, gives judgment for the plaintiff. Damages £80.0.0, costs £7.2.10.

The defendant hereupon gives notice of appeal instanter.


[1] Was this the first clear award of expectation damages for breach of contract in Australian law? The buyer refused to accept delivery of goods, arguing non-compliance with the sample. But was his real reason for refusing it that the market price fell after the contract was formed?
Some legal historians see the award of expectation damages for purely executory contracts as one of the key indicators of modern contract law.
See B. Kercher, Debt, Seduction and Other Disasters: the Birth of Civil Law in Convict N.S.W. (Federation Press, 1996) at 155; P. Atiyah, The Rise and Fall of Freedom of Contract (Oxford University Press, 1979) at 200-203; M. Horwitz, The Transformation of American Law (Harvard University Press, 1977) at 173-177.

Published by the Division of Law, Macquarie University