Skip to Content

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

Hansey v Girard [1830] NSWSupC 8

sale of goods, sale by description, contract law, unfair contracts

Supreme Court of New South Wales

Dowling J., March 1830[1 ]

Source: Sydney Gazette, 11 March 1830

 

This was an action brought by the plaintiff to recover the sum of £30, 10s. being the value of one ton of fine flour engaged to be supplied to the plaintiff by the defendant.

The evidence on behalf of the plaintiff went to shew that the defendant had contracted to supply the plaintiff with a ton of fine flour, in exchange for a ton of biscuit; that the biscuit was duly delivered, but that the defendant had failed in his part of the contract; inasmuch as, the flour which he tendered was not fine flour according to the terms of the agreement, and the generally understood meaning of the word, but flour made from Indian wheat which is known, and appeared from the sample laid before the Court, to be of inferior quality to flour made from Colonial wheat.

For the defendant it was urged, that the plaintiff was fully aware, at the time he made the contract, of the description of flour he was to receive.  Several witnesses were called in support of this case, some of whom proved that the plaintiff was fully cognizant at the time he entered into the agreement, that the flour was to be made from Indian wheat, as the defendant was possessed of none other at the time, and that he had even been shewn a sample of the wheat.

The learned Judge told the Assessors, if they believed, at the time of making the agreement, that there was no stipulation as to the description of wheat from which the defendant engaged to supply the flour, then the plaintiff was entitled to recover; because, from the evidence before the, the sample of flour exhibited before the Court was not of that description which was generally understood by the term fine flour.  If, on the other hand, they were of opinion that there had been such stipulation, they would find a verdict for the defendant.

The Assessors found a verdict for the defendant.

 

 

Forbes C.J. and Dowling J., 1 June 1830

Source: Sydney Gazette, 3 June 1830

 

This was also an application for a new trial in the above cause, which was an action of assumpsit to recover the value of a ton of fine flour, which the defendant, a corn factor, had contracted to furnish to the plaintiff, a baker, in consideration of the like quantity of ship biscuit, at the rate of 100lbs. of flour for every 112lbs. of biscuit.

The point at issue in this case was, as to the interpretation to be put on the terms of the contract entered into by the defendant, who stipulated for a ton of fine flour, whereas that tendered by him and rejected by the plaintiff was fine flour made from Bengal wheat, not worth more by the cwt than the biscuit which he received in exchange.  A number of witnesses were examined on both sides.  Those on the part of the plaintiff proved that the flour tendered by the defendant was not fine flour, in the general acceptation of the term, but flour made from Bengal wheat, with a mixture of gram, not worth more than fifteen or sixteen shillings the cwt.  On behalf of the defendant, witnesses were called who stated that he express understanding between the parties was, that the plaintiff was to receive 112 lbs. of fine flour made from Bengal wheat, for every 100 lbs. of biscuit.  The learned Judge (Dowling), who tried the case, put it to the Assessors as one entirely depending on the interpretation which they should put upon the terms of the contract entered into between the parties.  If the jury believed that the contract was, on the part of the defendant, to furnish a ton of fine flour, without any stipulation that it was to be from Bengal wheat, then unquestionably their verdict ought to be for the plaintiff; inasmuch as, from the evidence before them, it was quite clear that flour such as had been tendered by the defendant did not come under the denomination of that which was generally understood by fine flour: if, on the other hand, they should be of opinion that the contract entered into by the defendant, was to furnish a ton of fine flour made from Bengal wheat, then they would find for the defendant.

Mr. Norton, in support of the application, then proceeded to comment on the testimony given on both sides, to shew that the finding of the assessors was contrary to the evidence.  The learned gentleman contended, that the very fact of the value of the cwt. of flour tendered by the defendant, as was in proof before the Court, not being greater than that of the biscuit in its manufactured state, was conclusive as to the understanding on the part of the plaintiff at the time he entered into the contract; it being quite clear that he never could have contemplated bestowing his time and labour for nothing, as he evidently would do were he to receive flour, of itself was not worth more in the market than the biscuit which he was to give in exchange for it.

Mr. Keith replied.

The Court was of opinion that justice had not been done by the finding of the Assessors, and that a new trial ought to be granted, upon the broad principle not only of equity, but of law, that in all contracts the consideration ought to be co-extensive with the obligation.  From the evidence in this case, it was quite clear that there had been no quid pro quo; and, though it had been urged that the plaintiff had made the bargain with his eyes open, still if it appeared that he had dealings with a sharper person than himself, it was the duty of the Court, upon a view of all the circumstances, to see that the interpretation of the contract into which he had entered was such as would be warranted by the principles of law and equity.  Under all the circumstances of the case, their Honors were of opinion that a new trial ought to be had. - Motion granted.

 

Notes

[1 ] The exact date of trial does not appear in the newspaper.

Published by the Division of Law, Macquarie University