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

Kermode v. Levy [1820] NSWKR 1; [1820] NSWSupC 1

sale of goods, sale by sample

Supreme Court
Field J., 25 February 1820
Source: Sydney Gazette, 26 February 1820[1]

This was an action brought by the supercargo of the brig Robert Quayle against a tradesman of this town upon a contract for the sale of 15 casks of glass, for the sum of £63 2s 3d. It appeared that the contract was entered into on board the ship on the 14th of December last, before the casks had been opened, for they were exported from England under the seal of the excise office as new crown glass, for the sake of drawback allowed thereon under statute 26 Geo. 3. The cost price in England was only £2 per cask, and the plaintiff demanded only £25 per cent and the charges, upon that original cost, he therefore did not warrant their contents, and recommended the defendant to have some of the casks upon deck and examine them. Half a dozen were got up, and the defendant's partner fixed upon one, which was open, and the first things that occurred were a pair of candle shades, upon which the defendant declined looking any further, and preferred taking his chance for the contents of the rest. The plaintiff himself was permitted to keep the candle shades, as an article which he wanted, and the bargain was concluded. On the 18th December 13 casks were delivered to the defendant, who sold then to Mr Hankinson for £300. It was then discovered that these candle shades were the only serviceable article in the whole 15 casks, the rest being filled with broken or flawed glass, the refuse of the manufactory, draw jointly exported hither for the sake of the drawback. Immediately upon this discovery, the matter was reported to the Commissioner of Enquiry, and a survey was made upon the contents of all the casks on the 21st of December by Captain Piper. Mr Jenkins, and another Gentleman, and the remaining two casks were detained on board the ship as specimens for the purpose of justice at home. The plaintiff of course declined to press the bargain upon the defendant, and on the 1st of January advertised the broken glass for sale by auction in the newspaper. The advertisement was repeated on the 8th, with the addition of the words, "unless the contractor for the purchase shall make good the same; " and on the 13th they were put up to sale by Mr. Lord at his customary auction at Mr. Hankinson's rooms, on behalf of the plaintiff. After Mr. Lord had read the conditions of sale, Mr Hankinson forbad the sale of any but the two casks, which were brought there that in [?] on the plaintiff's account, saying that the 13 were his property, and that he had bought them for £300 of which he had paid the defendant £200. The defendant confirmed this, and said, "If I were Mr. Hankinson I would apply for warrants to apprehend those who took my goods" Upon this, the plaintiff said that as the defendant persisted in the contract, the goods belong to him, and desired to be paid his £63 2s 3d but the defendant referred him to the law for that, and said that if Hankinson did not complete his purchase with him he should look to the plaintiff for damages for the bulk's not answering to the sample. Mr. Hankinson being called as a witness for the defendant proved that he bought the casks of the defendant as odds and ends, and upon their turning out to be broken glass, he required the defendant to return him the £200, but the defendant said he should not be able to recover damages of the plaintiff unless he insisted upon the £300 from him, and it was therefore that he (Hankinson) insisted upon detaining the casks from the sale by auction till the defendant returned him his money, but the defendant did not say at this sale that he would not return him his money, and in fact had since promised him the £200 with which promise he was satisfied. The defendant only said at the sale, "If you allow the glass to be sold, I shall make you complete your contract."
Upon this evidence, Mr. Justice Field justified the conduct of the plaintiff, and reported that of the defendant, as an artful contrivance to make a fool of Hankinson to extort damages against the plaintiff for a fraud of which he was innocent and ignorant, and for the breach of a contract which he was always ready to rescind. The defendant (His Honor said) seemed to have persuaded Hankinson that it was better to treat both sales as impossible to be rescinded, and the property as having changed hands, the greater part of the second purchase money having been paid, and then they should have a strong case of damages against the plaintiff for selling broken glass instead of whole. The judge could not believe that Hankinson so was weak as to suppose that the defendant could bind him to take broken glass upon a contract for odds and ends, and expressed his doubt that the contract[?] ever passed between them. So satisfied did Hankinson express himself with only the defendants promise to repay him, and so perfectly harmonious did they appear to be. In this, however one of the Members of the Court differed with him: but the Court was unanimously of opinion that the defendant having prevented the sale by auction, and having thus taken to the goods, the plaintiff was entitled to recover of him the market price of the 13 casks of broken glass, which Mr. Lord assessed at £30 or £40 value for the exportation to China or elsewhere. The Court therefore gave judgement for the plaintiff, damages £35.


[1] See also Supreme Court of Civil Judicature, Judgment Rolls, 1817-1824, State Records N.S.W., 9/2255 (no. 519).

Published by the Division of Law, Macquarie University