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

Shea v Smith and Barker [1826] NSWSupC 65

customs and usages - contract law - stonemasonry - architecture - work and labour

Supreme Court of New South Wales


Forbes C.J.,[1 ] 30 October 1826

Source: Sydney Gazette, 28 October 1826


Monday, 30th. - Shea v Smith and Barker.  This was an action of assumpsit for work executed.  The plaintiff was employed as a quarryman by the defendants, and entered into a written agreement, to quarry as much stone as should be necessary for the erection of a circular tower, for a windmill, on Elizabeth Point, at the rate of one shilling and eight-pence per perch, to be computed at stone-mason's measurement.  The work was completed, and the question at issue between the parties, was, as to the quantity on admeasurement.  On the part of the plaintiff, Mr. Cookney, the architect, who had surveyed the building, was examined, and stated that in the admeasurement of circular buildings, according to stone-mason's measurement, it was the universal practice to allow one half more to the quarry-man for the waste which each particular stone suffered in going through the hands of the mason, and, measuring the tower on that principle, the number of perches for which the plaintiff was entitled to be paid was considerably more than had been allowed by the defendants.  On the part of the defendants Mr. Henry Cooper, also an architect, stated, that admeasurement according to Mr. Cookney's plan, had been discontinued for the last forty or fifty years, and that the practice now is to allow the difference in the price, as had been the case with respect to the plaintiff, who received at the rate of one shilling and eight-pence per perch; whereas, for quarrying stone under other circumstances, he would only have been entitled to one shilling and three-pence; and therefore he maintained that the defendant was only liable to pay for the number of perches according to plain superficial measurement.  Mr. Cooper also stated, in answer to a question from the Chief Justice, that even had the stones quarried been cut to the utmost advantage, and applied to the purpose of a square building, he did not think the number of perches would have amounted to more than he, according to his admeasurements, had allowed the plaintiff.  His Honor left it entirely for the consideration of the Jury, whether the difference in price was sufficient to cover the extra labour, and also, whether it was understood by the plaintiff, when making the contract, that, the building being circular, he was to be allowed a higher price.  --- Verdict for the defendants.



[1 ] Stephen J. resigned as temporary Justice of the Supreme Court on 27 May 1826, and was not sworn in as puisne Justice until early November 1826.  See C.H. Currey, Sir Francis Forbes: the First Chief Justice of the Supreme Court of New South Wales, Angus and Robertson, Sydney, 1968, pp 97-98; Australian, 3 June 1826.  In the meantime, Forbes C.J. sat alone.

Published by the Division of Law, Macquarie University