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

Thompson, Foreman and Son v Raine [1825] NSWSupC 51

goods sold and delivered - power of attorney - agency

Supreme Court of New South Wales

Stephen J., 29 October 1825

Source: Australian, 3 November 1825

 

This was an action brought by the plaintiffs to recover an amount for goods sold and delivered.[1 ]

It appeared that the plaintiffs in this action are traders residing in London; and the defendant a resident in this colony.  A shipment of goods had been made by the former, and forwarded to the defendant, as per order; plaintiffs also at the same time transmitted an invoice of the goods, and requested payment thereof.  In consequence of the demand not being liquidated, the plaintiffs had authorised the firm of Read and Co. residents at Hobart Town, to sue for the debt; and, the party, in pursuance of these instructions, had employed agents in this Court to institute legal measures accordingly.

A power of attorney was put in, enabling Messrs. Read and Co. of Van Diemen's Land, to sue.  Proof of the defendant's acknowledgment of the debt was also given.

On behalf of the defendant, it was contended that the power of attorney was insufficient, on the ground that only one of the partners had affixed his signature to it; and, that Messrs. Read and Co. were the only authorised representatives of the plaintiffs, and therefore were only competent to recover in Van Diemen's Land.

Mr. Justice Stephen  I rather consider it would be necessary, in the first place, to prove that Messrs Read and Co. are not at the present moment residents in this Colony; it is, however, a matter of presumption that those parties have delivered over the papers in question to some person or other.  It will be necessary for the plaintiffs, therefore, to prove that this is not the case.  The Court cannot take notice of any thing but what is produced before it, as a matter of fact.  With respect to the objection in law, as to the propriety of giving a verdict in favour of the plaintiffs, in consequence of informality in the power of attorney, in only being signed by one individual of the partners, I will reserve that point for future argument, if thought necessary.  If the Jury are of opinion that sufficient evidence has been produced to prove the case, they must find a verdict for the plaintiffs.[2 ]

Verdict accordingly.  Damages £132 16s. 9d. sterling.

 

Notes

[1 ] The case was reported by the Sydney Gazette on 3 November 1825.  Norton acted for the plaintiffs, and W.H. Moore for the defendant.  Moore argued that Norton's authority to sue was insufficient, as the power of attorney was originally granted to Bethune and Grant of Van Diemen's Land, and that the defendant would be liable to be sued again there.  Also the affidavit accompanying the power from London was signed by only one of the partners, and that in his own name.  There was no representative of the plaintiff in New South Wales.

[2 ] The Sydney Gazette's version of the statement by Stephen J. was quite different: ``His Honor was of opinion, that whether the affidavit of the plaintiffs was sufficient or not, was then of no moment, as the defendant himself had admitted the debt, and that he could not make the objection that Mr. Norton was not an accredited agent for the plaintiffs, a point of law, as there was nothing before the Court to shew that Mr. Walter Angus Bethune might not have been in Sydney and given full power to Mr. Norton, whom, as an attorney of that Court, he was bound to consider as the representative of the plaintiff, and when the matter was brought before a Jury the defendant was not to be allowed to come forward and raise that objection."

Published by the Division of Law, Macquarie University