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

Cullen v. Crawford (1828) NSW Sel Cas (Dowling) 61; [1829] NSWSupC 91

accord and satisfaction - master and servant - set off

Supreme Court of New South Wales

 Forbes C.J., Stephen and Dowling JJ, 29 December 1829[1 ]

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


[pp 270-271] Accord without satisfaction is no bar.  Where a servant brought an action against his Master upon acknowledged merit of the latter that he held in his hands money due to the Plaintiff for Wages.  Held that the Master could not set off the negligence of the servant in losing 27 of his sheep, although the former insisted upon the acknowledgment being given up for this default, there being no proof that the servant had agreed to give up the acknowledgment and had done no act amounting to an accord with satisfaction.


Source: Dowling, Proceedings of the Supreme Court, Vol. 30, Archives Office of New South Wales, 2/3213


[p. 53]Assumpsit for money had & receipt.  Plea general issue with a notice of set off.  At the trial before Forbes CJ. the case was this:-  The Plf had been in the Defts service as shepherd and had earned wages to the amount of £27.3.6.  The deft gave the Plf a note in writing acknowledging on the 1st Sept 1827 that he had that sum in his hands belonging to the Plf.  This note was produced in evidence in support of the action.  After the note was thus given the Deft discovered that through the Plf's negligence he had lost 37 sheep from his station.  The sheep were worth more than £27.3.6.  The Deft sent to the Deft[2 ] and said as you have lost my sheep you must give up my note.  It was contended on the part of the Deft, that he had a right to set off the value of the sheep, lost by [p. 54] the plf's negligence, against the sum now demanded, & that this must be considered as an accord & satisfaction.  There was no proof that the Plf consented to give up the note or had in fact given it up.  The learned judge left three questions to the assessors, were the sheep lost through the Plf's negligence; 2.d was it his duty to take care of them; & 3.d Did he agree to give up the note in consideration of the Deft discharging him of all liability for the loss of the sheep, for if he did them he could not recover.  The Assessors found for the Deft.

Foster now moved for a new trial on the ground of misdirection.  Assuming that there was evidence to warrant the assessors in drawing the conclusion that the Plf had agreed to give up the note to relieve himself from liability for the loss of the sheep (which was denied) still an accord without satisfaction was not sufficient in law to bar the action.  The note should have been given in fact.  Beside the deft ought to have [p. 55] pleaded accord & satisfaction specially.  All that the deft said was ``you have lost my sheep & I must have my note given up."  This was all the evidence.  No accord, or satisfaction was proved.

Wentworth contra.  The assessors have determined the value of the evidence, & they have determined the value of the evidence, & they have determined that there was an agreement to give up the note in consideration of the Deft's waiving his claim ag.t the Plf for the lost sheep.  The argument on the other side rests upon the fallacy, that because the note was not in fact given up, therefore the agreement to give it up was not sufficient.  The only question was whether the money was retained with the Plf's consent to cover the value of the sheep.  The assessors have found that he did & therefore the verdict is right.

Forbes C.J.  This case went at the trial upon a mistaken application of the principle of Le Lois v Bristow 4 Campl. 134 where in an action by a servant against his master for wages, Lord Ellenborough [p. 56] held, that the latter cannot generally set off the value of goods lost by the negligence of the former, but if it be found to have been part of the original agreement between them, that the servant should pay out of his wages for his master's goods lost through his negligence the value of the goods so lost, may under the general issue, be deducted from the amount of the wages.  It appears to me, upon consideration that that case is not applicable to this.  There was certainly no satisfaction, & it is a settled rule, however absurdly it may operate in some cases, that accord without satisfaction will be no answer in a case of this description. It appears to me therefore that this case was erroneously decided.

Stephen J concurred.

Dowling J.  There is no doubt that substantial justice has been done in this case by the finding of the assessors; but it is a dangerous thing to violate a settled rule of law.  Accord with satisfaction may be given in evidence under the [p. 57] general issue.  12 Mod. 377.  Here however though there may be an accord yet there is no satisfaction.  The Plf does no act to bind him. - See Selwyn's N.P. 121 7 Ed.

Rule absolute for a new Trial.


[1 ] From its position in the notebook, it is likely that this trial was held on 29 December 1829.

[2 ] Corrected to "Plaintiff" in the Select Cases.

Published by the Division of Law, Macquarie University