Skip to Content

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

Monks v Brown [1833] NSWSupC 27

implied contract - assumpsit - contract, consideration - negligence - vicarious liability - contributory negligence

Supreme Court of New South Wales

Dowling J., 15 March 1833

Source: Dowling, Proceedings of the Supreme Court, Vol. 81, State Records of New South Wales, 2/3264

[attached to p. 27] Trespass on the case on promises, for that Deft in consin of certain reasonable reward to be therefore paid him by Plf for the services of a certain horse in covering a certain mare of Plf, the deft undertook that the same should be performed in a skilful & proper manner.  Averment of unskilfulness & negligence of Defts servant, whereby the Plf's mare died - to Plf damage of 30£.

Dowling J. 1.st Consideration -  If assessors think upon the evidence that the horse in question was Defts property, & he had sent him about the country in care of his groom to earn money, that was sufft.[1 ] proof of consideration to support an assumpsit.[2 ]

2.d  Then if it was through the negligence of his servant that the injury was occasioned, he was liable for the damage; unless indeed the Plf was himself to blame, in culpably allowing the drunken groom to attend upon the horse in such a state.[3 ]

 

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

Dowling, Proceedings of the Supreme Court, Vol. 81, State Records of New South Wales, 2/3264[4 ]

[attached to p. 27] Dowling J. in Banco.

The Jury having affirmed by their finding, that the horse in question had been sent about the country under the care of his groom, in order to earn money by the services of the horse, for any such persons as should employ him and the Plf having employed the horses services in the way & for the purposes proved, I think there is such an implied contract between these parties to pay so much money upon a quantum meruit, as will support assumpsit for the breach of such implied contract.  An express contract is not in all cases necessary.  Implied is sufft.

 

Notes

[1 ] Sufficient.

[2 ] Marginal note in manuscript: "Not much reliance to be put upon the offer of a compromise of 5£.

[3 ] The assessors found in favour of the plaintiff, damages £30.

[4 ] On appeal to a banco court, Forbes C.J. delivered a judgment stating that the verdict was to stand: Dowling, Proceedings of the Supreme Court, Vol. 81, State Records of New South Wales, 2/3264, p. 36.

Published by the Division of Law, Macquarie University