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

Parr v. West [1814] NSWKR 3; [1814] NSWSupC 3

paintings - work and labour - drawings - contract - consideration without payment

Court of Civil Jurisdiction
Bent J.A.., 19 April 1814
Source: Court of Civil Jurisdiction Proceedings, 1788-1814, State Records N.S.W, 5/1110 (case no. 260)[1]

[236] Thomas William Parr of Sydney, plaintiff and Absalom West of Sydney, dealer, defendant

Writ for £40 sterling due by a certain agreement dated 11th January 1814 made and entered in by the said plaintiff and defendant for the payment of the sum of £40 as quantum meruit and also for work and labour done and performed by plaintiff for defendant at his request. The defendant appears in person and denies the cause of action.

Richard Hughes sworn, says I am acquainted with the defendant. I believe the signature A. West to the paper now shewn to be the defendant's handwriting.

The said agreement is put in and read. Note the word "sketches" in this agreement [237] appears to have been written on the issue of the word drawings.

Mr McMahon sworn, says I went accidentally to the defendant's house about six weeks ago. Mr West shewed me some drawings of Sydney. Mr Parr was the person that drew them. He expressed himself very much pleased with them. I asked him if they would not look better in colour. He said Mr Parr did not colour but Mr Lewin was to colour them for him. I thought he was satisfied with them.

The four drawings in question are produced by the defendant and exhibited to the court.

William Thorby sworn, says I met Mr Parr some time ago and at his desire went with him to Mr West's. I believe the agreement was there. Parr asked for his £40. West refused to pay him the £40 as the drawings were not of any use to him. Parr said the drawings had been approved by the Governor and Mr Allan and gave West the paper to shew him their approval.

Parr held the agreement in his hand for West to look at the back of it.

Philip Slaeger sworn, says I am an engraver, an historical engraver. I called upon defendant in the evening after receiving the first drawing. I asked him to let me look at it. West said he thought it too dark. A light was brought and I saw the drawing. He asked me if I thought I could make a good engraving of it. I told him I can't. West said they were the best drawings that had been drawn for him in the country. West said he knew more about drawing than I did about engraving. West said he had engaged with Mr Lewin to do the same job for £100 sterling, but Mr Lewin was afraid to go on [238] the church steeple, and he (West) had engaged with Mr Parr and was satisfied with his performance. Mr West in my presence impressed himself satisfied with the performance of Mr Parr. I saw two other of the drawings after that. West appeared to be highly satisfied with those other two drawings. Then Mr Lycett came into the colony and the drawings were good for nothing. I can make good engravings from those drawings. I believe those to be complete drawings.

The plaintiff's case closed

Mr John William Lewin sworn and examined for the defendant, says I am an artist of course. I have seen this and four drawings in court. I cannot call them complete in any shape. The word drawing in my opinion means merely a drawing in pencil. If a person wishes to have drawings in India Ink, or crayons, or water colours he must express that. I should consider these as mere plans or charts. I declined colouring them because I did not draw them. I do not think these drawings are worth 40 pence. I do not think them accurate representations of Sydney.

Joseph Lycett sworn, says I am an artist. I have seen the four drawings. They are not in my opinion accurate representations of Sydney. They are not complete drawings. I consider a complete drawing to be an accurate delineation of any thing with its true light and shade. If a person were to require from me a complete drawing of Sydney, I should not make it in water colours. If a person were to ask me for a drawing of Sydney, without using the term complete, I should do it in watercolours, except he specified some other mode. The drawings before the court are not worth 40 pence. I do not think these drawings are a substantial performance of that agreement.

I am now employed by West in making drawings of Sydney. As soon as I saw them, I said [239] I can hardly pass an opinion on them they are so indifferent. At the time Parr made his demand on West I was by, and said they were not worth the paper. I saw these drawings in West's possession a few days after my arrival. If I were employed in this way and finished one drawing and that was approved by my employer, I should finish the rest in the same way.

Richard Reid sworn, says I am an artist. I have seen the four drawings in question. I consider them as four complete drawings. I have seen the agreement between the parties. I considered them a satisfactory performance of the agreement. I was regularly brought up to drawing, to portrait and historical painting. I am not a competent judge of these drawings.

The defendant produces a written agreement signed by plaintiff relative to this matter which being admitted is read.

Mr George Smith sworn, says I am in the commissariat department. No further questions asked of this witness.

Mr Thomas Rushtan sworn, says I was at Mr West's house the very day the first of these drawings was delivered. The next day West told me Mr Lewin had condemned it. The first day Mr West said nothing about it. The next day he was dissatisfied.

Mr Lewin being questioned by the court, says I do not think a good engraving could be made from any of those drawings if they were taken home to England, for there is no perspective in them. Mr Lycett questioned by the court, says I do not think a good engraving could be made from these drawings if they were sent to England. They are not sufficiently finished for that purpose. I do not think that any respectable engraver would take an engraving from such drawings.
The court upon consideration dismisses this action.

Note

[1] Here we see one of the earliest examples of a dispute over an artistic work, involving a squabble within Sydney 's small but active arts community. Some interesting comparisons can be made between this 1814 decision of the Court of Civil Jurisdiction and the 2006 New South Wales Supreme Court decision of Johansen v. Art Gallery of N.S.W. Trust [2006] N.S.W.S.C. 577.

Published by the Division of Law, Macquarie University