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

Taylor v Clarke [1832] NSWSupC 69

contract, breach of, building work

Supreme Court of New South Wales

Dowling J., 26 September 1832

Source: Sydney Gazette, 27 September 1832[1 ]

This was an action of debt on an agreement under seal.  The declaration contained several counts alleging a breach variously, to the damage of the plaintiff of £174 8s. 0d.

The defendant pleaded, first, non est factum; and, secondly, that he was always ready to perform his contact, but had been prevented by the acts of the plaintiff.

It appeared in evidence, that Mr Samuel Lyons, of Sydney, having a large building to erect in George street, employed the plaintiff to perform the mason's work, according to a plan specified by Mr. Verge, the architect; the defendant, who is also a stone mason, was engaged by the plaintiff, under a sealed agreement, to execute a certain portion of the work, under a penalty of £100 for its due and workmanlike performance.  It also appeared, from the testimony of the witnesses, that, owing to the neglect and unskilfullness of the defendant, and his habits of intoxication, several portions of the stone work had been obliged to be taken down after it was erected, and set up again at a very considerable expence [sic] to the plaintiff, and that every part of the work performed by the defendant was totally insufficient, and not at all in accordance with the specification.

Mr. Norton submitted that there was no case to go to the assessors, in point of law.  The action was for the non-performance of the conditions of a sealed instrument.  A party standing on his bond was incapable of availing himself of any subsequent agreement to do something else.  A breach might have been averred on the subsequent agreement, but he could not go back to the original contract.  It appeared in this case that part of the work had been obliged to be erected again after the original specification.  Another part of the case was that delays took place; and, therefore, apprehending that the work would not be executed in time, he dismisses the defendant, and by his own act prevents the performance of the contract.

The learned Judge said he should put the case to the assessors, inasmuch as, it was a matter of consideration for them, whether there had been a deviation from the original agreement; and, secondly, supposing there had been, whether the defendant by his acts had adopted it.

Mr. Norton then addressed the assessors, on the part of the defendant, contending that it was the plaintiff himself, acting under the advice of the architect, who discharged the defendant, and thereby prevented him from fulfilling his contract.  The agreement, in point of fact, contained no specified time for the performance of the work by the defendant; but even if there had been, the plaintiff could not sue upon the agreement until the expiration of that period; because, although delay might have occasionally taken place, it did not follow that the work would not have been eventually performed, within the stipulated time.  The fact of the defendant having been occasionally drunk, had nothing whatever to do with the case, unless it had been proved in words, that he was off the work altogether.  The defendant made no covenant that he would not get intoxicated, or that he would perform the work with his own hands.  The question was, was the work performed? - or had he been prevented from performing it by the act of the plaintiff?

The learned Judge, in summing up, put the case to the assessors to say, upon the evidence, whether there was an alteration in the work? and if there was, was that alteration a deviation from the original contract?  And, secondly, was that deviation waived by the defendant?  If they should be of an opinion, that the plaintiff was entitled to recover, then he could only recover the amount of the liquidated damages, and they would return a verdict of one shilling.

Verdict for the plaintiff, damages one shilling, and the assessors assessed the damages at £54 5s. 9d.



[1 ] See also Sydney Herald, 27 September 1833.

Published by the Division of Law, Macquarie University