Skip to Content

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

Carmichael v Jones and Howe [1833] NSWSupC 66

contract, breach of - contract, termination of - contract, acceptance of  breach - press, employment in - master and servant, superior servants - Sydney Gazette, management of

Supreme Court of New South Wales

Dowling J., 17 June 1833

Source: Sydney Herald, 20 June 1833[1 ]

Monday. - Before Judge Dowling, and William Macpherson and James Nicholson, Esquires, Assessors.

Reverend Henry Carmichael v. R. Jones and Ann Howe, executors of R. Howe. - This was an action brought to recover £150, for breach of agreement, entered into between plaintiff and defendants, executors of R. Howe, Esq. Deceased.  The agreement declared upon was to the following effect:-

1st.  That plaintiff should provide a leading article for every Tuesday's and Saturday's Gazettes; 2d. that he should superintend and control the arrangement, quantity and character of the matter to be inserted in those papers; 3d. that he should be liable to any expense from any prosecutions for libel arising out of the two papers; 4th. that the executors shall guarantee for these services, and pay plaintiff £200 per annum, to be paid quarterly, commencing 1st July, 1832, and the agreement to extend to July, 1835.

Mr. George Thomas Graham having proved the execution of the agreement, that plaintiff had fulfilled the terms of it, and a breach of it by defendants, in consequence of a sentence in a leading article, which gave one of them great offence, when he was discharged on the 30th of October, 1832.

Mr. Norton addressed the Bench, and called the following witness for the defence:-

George Little - I am overseer of the compositors in the Sydney Gazette; I have been employed there the last 20 years; Tuesday's and Saturday's Gazettes are morning papers; the leading articles should be delivered to the compositors at two o'clock on the afternoon of the day previous to the publication; since Messrs. Carmichael and Graham have left I get the paper out by 9 or 10 o'clock at night; when they were there I used to be kept till 4, 5, or 6 o'clock in the morning; I told Mrs. Howe that I could not work the next day, through their mismanagement; I was knocked up; all that were working under me grumbled at the late hours; there were ten men under me, compositors; I used to receive instructions from Mr. Graham generally; I never saw Mr. Carmichael there but twice; once he gave the men a dollar to alter some of his copy, and it was stopped from them by Mr. Graham the next Saturday night; I used to send all the proofs to him relative to any particular matter; always the leading articles, and the soirees which occupied the last page; always political articles, but not matters of fact.

Cross-examined by Dr. Wardell - The paper should be published at 6; it is generally later; the whole impression takes about 1½ hour to work off; twelve o'clock has been the latest since Mr. Carmichael left, but generally nine or ten o'clock, and then we go home to bed, unless any news arrives; a leading article should comment on all the news of the week; Mr. Carmichael's leader would form the first, and if any news arrived, that would be the second; the mis management of Mr. Carmichael was a great inconvenience; the public or the interests of the paper did not suffer by it; I think Mr. Carmichael was taken up too much with his school; in England compositors work all night; Mr. C. used not to have proofs of reports sent him; Mr. Jones did not complain to me about that; Mr. Carmichael used to partake of the inconvenience of late hours; he used to correct the proofs.

Re-examined - I never knew an instance of later news being brought in by the delay; the public had no later news then than they have now; I used to send to Mr. C. the proofs to the school room, and answers used to come back that they would be sent as soon as possible, it was interfering with the business of the school; I think I only saw Mr. C. in the office but once or twice; I don't think I should recognise him if I saw him; in nine cases out of ten Mr. Graham was the only means of communicating with Mr. C.; when I did not, I used to send to the school.

That was the defendants case.

Dr. Wardell having replied, His Honor summed up, observing that the first point for their consideration was, were they satisfied that the agreement had been executed between the parties; of that there was no doubt, if they believed the evidence of Mr. Graham, then what was the effect, and what were the duties imposed upon plaintiff under it; that he should provide for Tuesday's and Saturday's Gazette a leading article, and superintend and control the arrangement, quantity and character of the matter in those papers.  Then third, had he or had he not performed those duties in the fair and reasonable terms of the agreement?  They would not treat this gentleman as a shoemaker, although that course had been adopted on the part of the defence; when a gentleman who had received an University education undertook the literary department of a newspaper, he was not to be tied down like a shoemaker as to the number of stitches he was to put in the shoe, or the way it was to be bound.  If he had done so, he was entitled to a verdict.  Then was there any breach on the part of the defendants; Mr. Graham had stated that in consequence of a sentence in a leading article which gave offence, Mr. Jones intimated to him that he should write no more for the paper.  If they thought defendants prevented plaintiff from performing his duties when he was willing so to do, they made themselves liable.  Verdict for plaintiff, damages £150.

Dr. Wardell and Mr. Kerr for plaintiff, and Mr. Norton for defendants.

 

Forbes C.J., Dowling and Burton JJ, 29 June 1833

Source: Sydney Gazette, 2 July 1833[2 ]

 

Rev. H. v. Richard Jones and Ann Howe, Executor and Executrix of the late Robert Howe. -  This was an action of assumpsit upon a special agreement between the parties, tried during the present term, when a verdict was returned for the plaintiff.  Mr. Foster on the part of the defendant, now moved that the verdict be set aside, on the ground that the plaintiff had not acted so as to put himself in a condition to sustain the action; he contended that he ought to have made a tender of his service, subsequently to the communication having been made to him that those services would be dispensed with, his not having done so clearly proved his acquiescence to the dissolution of the existing agreement.  The court was of opinion, that the communication amounted to a dismissal; a compulsory termination to the agreement on the part of the defendant's.

His Honor, Mr. Justice Dowling observed, that if he had entered into an agreement with his gardener, for the term of 12 month's, and thought proper to dismiss him long before that period, it would be a hard case if the poor man were obliged to attend with a spade on his shoulder every morning during the remainder of the term, in order to put himself in a capacity to sue.  The court expressed its opinion, that there was no ground for disturbing the verdict.

 

Notes

[1 ] See also Australian, 21 June 1833; Sydney Gazette, 18 June 1833; Dowling, Proceedings of the Supreme Court, Vol. 85, State Records of New South Wales, 2/3268, p. 6.

[2 ] See also Sydney Herald, 1 July 1833; Dowling, Proceedings of the Supreme Court, Vol. 83, State Records of New South Wales, 2/3266, p. 133.

Published by the Division of Law, Macquarie University