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

Eager v Levey [1833] NSWSupC 95

covenant - seal skins - business history - sale of goods, sale by description - damages, assessment of - customs and usages - foreign attachment - damages, expectation

Supreme Court of New South Wales

Forbes C.J., 29 October 1833

Source: Sydney Herald, 31 October 1833[1 ]

Tuesday. - Before the Chief Justice, and a Special Jury, composed of the following persons - Capt. Coghill, foreman, M. Phillips, W. Hutchinson, J. Campbell, R. C. Lethbridge, N. Aspinall, T. Barker, G. Druit, T. Fowler, J. Hosking, T. Wills, and J. T. Palmer.

Eager v. Levey. - This was action on covenant brought to recover £1,500, with interest thereon.

Defendant pleaded payment in satisfaction.

Replication denying it by plaintiff.

Plaintiff made sale of spirits, salt provisions, and other goods to defendant on agreed prices, on the 3d October, 1823; and in liquidation of the amount, agreed to take in barter a quantity of Seal skins, at fifteen shillings each.  This bargain and sale, was confirmed by a sealed agreement between the parties, bearing the above date, and specifying the quality and description of Seal skins to be furnished by defendant, who assorted them in Healey's yard, in Pitt-street, and after the necessary curing and packing, delivered them to plaintiff for shipment.  Plaintiff shipped these skins on board the brig Allies, Captain Cuerton, for London, where, in due course they arrived, and the Consignees had them inspected and classified in the usual manner, preparatory to public sale, for account of the shipper.  Affidavits sworn before the Lord Mayor of London, accompanied by the printed catalogue of sale, and confirmed by the seal of a Public Notary, proved the identity of the goods, and the prices obtained.  The gross amount of this sale left a deficiency on the invoice charge of £1,205 8s. 4d. which with interest at eight per cent. to this time of £897 4s. 6d., made a total of £2,202 10s. 10d.; and to recover which amount, the plaintiff had brought the action, on the plea that these Seal skins were not originally of the description and quality which defendant had engaged to deliver to plaintiff, and as provided by the sealed contract or agreement between them.  Mr. Wentworth for plaintiff, called witnesses to speak to the quality and relative value of Seal skins in this Colony, among whom was Mr. R. Uther of Sydney, who gave a very lengthened testimony, including the terms used in classification here; and showing where they differed in London, particularly the term clap-match, well understood in this Port, but if known, is never applied publicly by the trade in England.

Dr. Wardell for defendant, called witnesses to prove delivering the goods, one of whom Captain Grono, long experienced in sealing, had selected, and assorted the skins delivered to plaintiff, and whose evidence went to show that the stipulations of agreement between the parties had been complied with as far as related to said skins.

Dr. Wardell pleaded the inadmissibility of the affidavits and documents from London, put in as evidence by plaintiff; on the ground that they did not conform to the act of attachment applied to these Colonies, which act enjoined that such affidavits in evidence should bear the Corporate Seal, which those now produced in Court did not.

His Honor over-ruled this objection, by stating that the affidavits had been duly signed by the Lord Mayor, and referred to the Notarial Sealed Certificate, confirming the authenticity of the documents before the Court; and, although not strictly bearing the Corporate Seal, were no doubt genuine; and he should, therefore, admit them in evidence.

An account current relating to the goods stated in the agreement, was put in by Dr. Wardell, as proof of entire settlement of this transaction; which was admitted for the time being as matter of account only, but not as affecting plaintiff in his right of this action.

Dr. Wardell in defence, adverted to the  lapse of time since this transaction commenced, and stated that the defendant in this case, had remained in Sydney some years after the result of the sale of said skins had been known; and in what other manner could this delay be accounted for, than by the advantage at length possessed by plaintiff under the recent act of foreign attachment, as applied to these Colonies?  One of the plaintiff's witnesses had recently died, and they had only a written deposition taken from him before his death.  The defendant was deprived of oral testimony, and had to meet only affidavits and documents, instead of the benefit of confronting witnesses in that Court, when truths might be elicited conclusively in his favour.

His Honor in summing up stated, that this was an action of covenant to seek compensation in damages on a sealed agreement; and that the whole affair laid in a nut-shell.  After the elaborate details of several witnesses, who deposed to the technical terms used in this Colony in the assortment of Seal skins, and the difference of terms used in London, the Jury would be able to form a judgment in this case, whether or not the classification and quality of the seal skins delivered to plaintiff in Sydney, to which place alone the contract applied, were in strict conformity to the sealed agreement, and which appeared to be the only matter for their consideration.[2 ]

The Jury retired for a short time, and on their return into Court, pronounced their verdict for defendant.


Forbes C.J., Dowling and Burton JJ, 5 November 1833

Source: Sydney Herald, 7 November 1833


in banco.

Eager v. Levey. - Mr. Wentworth for plaintiff, moved for a new trial in this case, on the ground that His Honor the Chief Justice had been in error on his view of usage as to the contract affecting this action; and that the Jury had not sufficiently examined the printed catalogue of sale and documents put in evidence, but retired only for a moment, and gave a verdict for defendant; whereas, had due deliberation been given, the plaintiff must have had a verdict for many hundred pounds.

Dr. Wardell, for defendant, contended that the arguments on the other side were quite distinct from the grounds on which the verdict rested.  The Jury had seen the agreement, and heard all the evidence which proved its fulfilment; these, taken in connection with a statement of account which had been signed by plaintiff as settled in full, could not but be conclusive.  With regard to the affidavits and documents from London, he insisted, that as they did not bear the Corporate Seal enjoined by Act of Parliament in such case, they could not legally be admitted as evidence; that the agreement referred directly to skins then in possession of defendant, and that they were classed, packed, and shipped, under the inspection of plaintiff, and his partner Mr. Forbes.  The whole defence had, indeed, been so complete, that he was confident the Court would not disturb the verdict.

Judge Dowling considered the Judge had come to a right decision on trial of this case, with respect to the usage of this Colony where the contract was entered into, and to which place only it applied.  That at the time of the transaction, it did appear that all parties to the contract understood it to have been fulfilled.

Judge Burton was of opinion, that the case had been rightly decided, and that the merits of it occupied a very small space - that the contract was to be performed here, which was so done - and that there was no room for any ambiguous construction.  He would observe here, for the information of suitors in future, that he thought the affidavits and accompanying documents produced by plaintiff in this case, were inadmissible, not bearing the Corporate Seal, conformably to the Act of Parliament.  The Notarial Certificate attached thereto, gave them no effect, although it went to show that the signature to the affidavits was in the hand writing of the Lord Mayor and vice versa.

The Chief Justice observed, that the case had undergone the fullest investigation - that a great many witnesses had been examined - that terms or words must be interpreted in reference to the place where they were used - and that the Jury had come to their decision by the body of evidence before them.  He should, therefore, not now disturb their verdict.


Forbes C.J., Dowling and Burton JJ, 5 November 1833

Source: Dowling, Proceedings of the Supreme Court, Vol. 83, State Records of New South Wales, 2/3266

[p. 188] Covenant on a sealed agreement for the sale & delivery of a certain quantity of seal skins.  The action was brought to recover 1205£ 8.4d being the difference between the value of the seal skins purchased by the plf, under the agreement, & those actually delivered to the plf & sold in [p. 189] the London Market.  At the trial before Forbes C.J. the case was this: - In October 1823. the Defts agreed by way of barter, that in consideration of their receiving certain goods consisting of spirits, tobacco & at certain prices they would deliver to the plf's in Sydney a certain number of seal skins at certain prices, of certain denominations now in their possession known in the Sydney market, where the agreement was entered into; as wigs, clapmatches & Prime pups.  The agreement in terms mentioned "the seal skins now in the defts possession".  There were to be a specified number of each of these denominations of skins.  On the arrival of the skins in the London market, the skins actually delivered to the plf's account were classed differently by the usuage of trade in that part; & upon inquiry were found not to correspond with known classification in the London market.  The skins sold at a loss of 1200£. being the difference of value between those delivered, & those for which the plf stipulated for, according to the known classification in London.  One material fact was proved viz that one Ian Brennan agent of the plf's was present at the delivery of the skins in Sydney, - & upon the delivery he settled an a/c on behalf of his principals with the Defts agent including the [?] of the skins in question, acknowledging to have received balance in full.  The Judge left the case to the jury for them to determine upon the evidence, whether the defts had in [p. 190] fact delivered seal skins according to their agreement, - did the skins delivered correspond with the qualities agreed for; & he adverted to the words of the agreement "now in defts possession.  He told them that in point of law the agreement must be construed according to the real usuage & language of the trade of the place, where the agreement was entered into.  There was here no warranty, but the simple question was whether the skins delivered corresponded in fact with those contracted for.  The jury found for the Defts.  (Note.  The plf's tendered in evidence affidavits sworn before the Lord Mayor of London, & certified by a Notary Public.  It was objected that in compliance with the Act of Parliament s 4 G. 3. c. 15 they ought to be certified by Lord Mayor, & were consequently in admissible; but Forbes C.J. thought the act sufficiently complied with & they were recid & read.)

Wentworth now moved for a new trial on the ground that the judge had improperly admitted evidence to explain the technical words used in the agreement.

Wardell lex contra, contended that as the evidence went to shew that the agreement had been complied with in Sydney, where it was entered into the verdict was right.  He relied upon the proof that the skins were assented [p. 191] by an agent of the plf in the presence of the agent of the Deft. & that there was a settlement of a/cs after the skins were actually shipped.

Dowling J.  I am of opinion that there is no ground for a new trial.  I think the evidence received by the judge to explain the meaning of the technical words used in the skin trade in Sydney was perfectly admissible; & without it, perhaps, the jury could not understand what the parties meant.  This was in effect no more than calling in the aid of an interpreter to translate a foreign language.  It is analogous to a latent ambiguity in a deed, which may be explained by extrinsic evidence.  With respect to the contract itself, it was properly left to the jury to determine whether the skins delivered answered the description contracted for by the parties.  The Defts sold skins of certain [p. 192] denominations "now in their possession" - not generally "skins of the particular description", with a warranty that they should answer that description in the London market.  The defts having certain skins in their possession in Sydney, which they called by particular names, they sold them under those names.  No concealment or latent fraud was made out.  They were submitted to the inspection of the plf's agent - a competent judge of the article, & he bought them according to the description given, & afterwards closed the transaction, taking a receipt from the Defts agent, for the balance due from the plf to the Deft.  The question was whether the defts contract was performed in N.S.W. & not whet performed in England.  The maxim lex loci contractus, was to determine this [p. 193] question.  That was matter of evidence, & I think the jury drew the proper conclusion.

Burton J. was of the same opinion; but threw out that the depositions or affidavits made before the Lord Mayor of London were not properly certified.  He apprehended that the law required that they should be certified by the Lord Mayor, & not by a Notary public.

Forbes C.J.  I regard the transaction as being settled & closed in N.S.W. by the act of the plf's agent in acting within the scope of his authority, & that it was now too late to open the question whether the contract had been performed.




[1 ] See also Sydney Gazette, 31 October 1833; Australian, 1 November 1833.

On foreign attachment, see Lee v. Macqueen, 1832; Brown v. Douglass (Sydney Herald, 8 July 1833; Sydney Gazette, 9 July 1833; Dowling, Proceedings of the Supreme Court, Vol. 83, State Records of New South Wales, 2/3266, p. 138).

[2 ] According to the Australian¸ 1 November 1833, Forbes C.J. left to the jury the question whether at the time of the agreement there was any classification of skins in New South Wales which differed from that in England.  If so, and the defendant had complied with the classification here, that would be sufficient.  If not, the defendant would have to pay the difference between what he did give, and what he ought to have given.

Published by the Division of Law, Macquarie University