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

Patterson v Hughes [1833] NSWSupC 18

master and servant - set off

Supreme Court of New South Wales

Dowling J., 13 March 1833

Source: Sydney Gazette, 14 March 1833

This was an action brought by the plaintiff, against the defendant to recover £200, as 10 months wages as salary for his service as engineer and superintendent of the machinery of the Albion Mills, the property of the defendant.  The defendant had entered into an agreement with the plaintiff to allow him a salary £100 per annum, together with the use of a house, which he considered equivalent to £100 per annum with fuel, for which the plaintiff was to put up the machinery of the defendant's mill, and afterwards to keep it in a constant state of operation.  If he could obtain any work, when his services were not immediately required at the engine, he might avail himself of it; an defendant pledged himself for it; and defendant pledged himself to recommend him for the work of Captain Bunn and Mr. Terry, promising him at the same time to pay him for any extra work he might perform for himself (Mr. H.)  Some time afterwards being pleased with the exertions of the plaintiff, he made a further allowance of £1 per week for services of a smith, which the plaintiff had found it necessary to employ.  Plaintiff finally succeeded in co[m]pleting the arrangement of the machinery, and set the mill going.  Matters went on to all appearance smoothly, until the defendant had became acquainted with a person who had been in the capacity of engineer in the service of Mr. Robert Cooper, and who was willing to accept of a salary and allowances infinitely below the demand of the plaintiff.  Defendant from that time, had evidently sought a pretext for quarrelling with the plaintiff, and finally succeeded, when plaintiff received intimation of his dismissal.  Plaintiff had performed his engagement under circumstances of great hardship, being obliged to remain with the machinery occasionally, all night as well as by day; had not been furnished with a residence for some time after agreement, and had not been supplied with fuel, which, he had furnished at his own expense.  This was Plaintiff's ground of action.

The Counsel for the defendant, contended that the plaintiff's allegations were incorrect as regards the claim for wages; witnesses would be called to prove that he had received the full amount of his demand, there was no express understanding that plaintiff should consider himself entitled to house rent, a house was in progress of completion which was at plaintiff's service when finished, as to the charge for fuel, it was quite ridiculous, there was nothing to prevent his using as much as he thought proper, fuel was in abundance on Mr. Hughes premises.  There was also another charge equally as ridiculous, that for the use of patterns which had been used by a founder in the employ of the defendant.  The patterns certainly were the property of the plaintiff, but while the plaintiff was in the employ of the defendant, it was not to be supposed that the defendant would recognize any charge arising from such an affair.  The workman who used the pattern, had found them on the premises, and without enquiring whose property they were, had used them in casting a new piece of the machinery, which had, in fact, been broken by the negligence and drunkenness of the plaintiff; it was, in consequence of his inattention and incapacity on a certain occasion, that the machinery had been subjected to a very serious accident, which might have been attended with a melancholy loss of life, and which rendered it incapable of performing its operations for a period of 2 days.  And even admitting the charges specified in the plaint, the defendant had a claim against the plaintiff, which would more than double the plaintiff's claim.  The plaintiff keeps a public-house, an has been furnished with beer by the defendant, who keeps an extensive brewery, to the amount of £98.  The books of the defendant would prove this to the satisfaction of the court, as also, that actual cash has been paid by the defendant to the plaintiff on account of wages, in weekly payments of £2 per week, for which receipts under the signature of the plaintiff or certain members of his family would be produced.  

He contended that no binding agreement had been entered into between the plaintiff and defendant; a certain verbal agreement had passed between the parties, which the confirmation of was subject to the capability of the plaintiff.  The defendant was not bound by that agreement, when defendant proved herself to be morally inadequte [sic] to his agreement.  Evidence was here put in who spoke to the fact of the cash payments which had been made to plaintiff whose receipts were produced, as also to the delivery of the beer.

The Counsel for the plaintiff produced evidence which established the several items in the account, when the case was submitted to the Assessors, who returned a verdict for the plaintiff, damages £17 10s. 8d.

Mr Sydney Stephen, for the plaintiff; and Messrs. Foster and Poole for the defendant.

Published by the Division of Law, Macquarie University