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

Mathews v. Cooper (1828) Sel Cas (Dowling) 56; [1828] NSWSupC 74

assumpsit, common money counts, work and labour, quantum meruit

Supreme Court of New South Wales

Dowling J., 11 September 1828

Source: Dowling, Select Cases, Vol. 2, Archives Office of N.S.W., 2/3462

[p. 100]

[In assumpsit for a surveyors bill the assessors were of opinion that as the Defendant had received no advantage whatever from the Plaintiffs services, he having been employed for a specific purpose.  Held that their verdict for the Defendant ought not to be disturbed.]

[p. 99]

Mathews v Cooper[1 ]

Coram Dowling J.

Assumsit for work and labour goods sold and money counts.

To recover £54 Commission surveys stone work of Brisbane Distillery 2/½ percent.  Plaintiff employed to measure and survey.

George Cookney.  I was employed by Clarke & Canning to measure certain stonework at the Brisbane Distillery belonging to Mr Cooper the Defendant   on the 6 May I measured the work.  Mr Mathews met me on the occasion I saw him measuring on Mr Coopers part, and Mr Cooper was giving directions.  The whole estimate of work done was 2,160£ as settled by Plaintiff and myself the usual charge for a surveyor is 2/½ percent   I never saw it charged by any other professional man.  This charge is correct   I made the same charge to Clarke and Canning and he received an acknowledgment for it.

Dowling J.  I told the Jury that the first question for their consideration was whether the Defendant had employed the Plaintiff

2nd  Did the Plaintiff perform the work he was engaged to do.

3rd  If he did what compensation was he entitled to exercise upon a quantum meruit they not being bound by the rate of commission which surveyors were accustomed to charge.

The assessors thought that as the Plaintiff [p. 101] had not performed the work he was employed to do and as the Defendant had derived no advantage from his services the Plaintiff was entitled to nothing.

Verdict for Defendant.


[1 ] See also Australian, 12 September 1828.

Published by the Division of Law, Macquarie University