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

Winder v Morgan [1833] NSWSupC 88

sale of goods, unmerchantable

Supreme Court of New South Wales

Burton J., 9 October 1833

Source: Sydney Gazette, 10 October 1833

William Cordeaux, and John Busby, Esquires,

Assessors.

Winder v. Morgan.

This was an action brought on a bill of exchange for £159 7s. 6d. for goods sold and delivered.  The circumstance of the case were as follow.  Plaintiff sold to defendant, through his agent 25 casks of beef, and defendant gave his acceptance for the amount at 6 months date.  The beef in question was delivered to plaintiff at his stores sometime in December last.  It lay in his possession for some months, when he sold a portion of it, in number 17 casks, to Mr. Michael Phillips.  On Mr. Phillips examining the beef, he found it not what was represented to him by the defendant, and accordingly apprized him of the same by letter, stating he would consider his bargain nullified in consequence of its inferior quality.  When the bill became due, defendant objected to pay it, on account of the beef being unmerchantable.  A survey was held by consent of all parties, and plaintiff agreed to give defendant credit for 17 casks, leaving a claim on him for the remaining 8 casks.  Mr. S. Terry, and Mr. Stafford, of the Commissariat, who were parties at the survey held on the beef, at the stores of Mr. Phillips, gave evidence, that it was of sound and merchantable quality - The defence set up was, that the defendant, after having sold the quantity mentioned, to Mr. Phillips, had contracted for the remaining 8 casks at a profit of 1d. per lb.; and he therefore insisted on Mr. Winder taking back the whole.

His Honor Mr. Justice Burton observed to the Assessors, that this was a very simple case indeed.  The contract on the part of the plaintiff had not been broken in any way whatever.  There was no specification of the beef having to be cured in any particular way; and he considered the plaintiff had acted in a very fair and honourable manner.

The Assessors returned a verdict for the plaintiff for £35 18s. 9d., being the amount of eight casks of beef.

Published by the Division of Law, Macquarie University