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

Girard v. Biddulph [1834] NSWSupC 127

Biddulph v. Girard

damages, expectation - steam engine - contract, breach of - damages, appeal against - liquidated damages - quantum meruit - entire contracts rule

Supreme Court of New South Wales

Dowling J., 3 and 4 July 1834

Source: Australian, 8 July 1834[ 1]

Thursday and Friday - Before Mr. Justice Dowling and a Special Jury.

Girard v. Biddulph - These two days, with part of the preceding, were entirely occupied in the trial of this cause, which arose out of a contract made by the defendant, to erect a steam engine for the grinding of flour on the premises of Mr. Girard, within a given time.  The point principally at issue was, which of the contracting parties had committed the first breach of agreement.  The steam engine was not finished within the time, and the defendant alleged that the delay was in consequence of Mr. Girard having failed to complete certain buildings and provide certain labour necessary, and which he was bound to perform.  A great deal of evidence mostly of a technical description, was produced on each side, and after a very tedious trial, the jury found a verdict for plaintiff, damages, £250.

Dr. Wardell, Wentworth and Keith for plaintiff; Foster and Williams for defendant.


Forbes C.J., 24 November 1834

Source: Dowling, Proceedings of the Supreme Court, State Records of New South Wales, 2/3288, vol. 105


[p. 144] Girard v. Biddulph.


Forbes C.J.  This was an action on the case for the breach of an agreement.  The declon stated that by the memorandum of an agreement dated 22d. Nov. 1833 Deft agreed & bound himself to erect Plf's steam engine as per specification for the sum of 325£ of which 100£ was to be paid on Defts completing the erection of the [p. 145] engine, & the balance by an approved acceptance, at three months, on finishing the whole of the work, & setting the mill agoing - that deft further undertook, in ten weeks from the time that the Plf should have the foundations of the Engine, & for the upright for the flywheel shaft, & proper framing for the millstones complete, to set the mill to work, & on failure thereof to forfeit 25£.  There were other stipulations, under which the Plf was to find certain accommodation & materials for the performance of the agreement, & the deft. certain other materials & all workmanship, as well as to attend & direct the masons' work & carpenters work; & finally deft guaranteed the soundness & perfectness of the work he had undertaken, & if faulty to repair it.  The breach assigned for this agreement was, that the deft had not made & setup in complete working condition, of good sound & perfect materials & workmanship the steam engine & flour mill, with all necessary implements [p. 146] for working, within the time limited by the agreement, but on the contrary had not then yet made and set up the same, & had wrongfully, maliciously, & injuriously delayed & had destructed and prevented the erection thereof, by reason where of the said engine & flour mill were of no use to the Plf, & he had been prevented from grinding large quantities of grain, which otherwise he might have done, & had thereby lost the gains & benefits thereof to lost, the sum of 2000£.  Plea not guilty.

Adverting to the terms of the agreement, & the breach set out, it would appear that the true gravamen of which the Plf complained was now fulfilment ``within the time limited."  But the evidence on both sides, at the trial travelled along way beyond the mere point of time & went into every separate part of the contract; & with the disposition to differ, which unfortunately prevailed between the parties, every distinct [p. 147] stipulation, became the subject of an obstinate contest in Court.  The Court must deal with the case as it was presented to it, by the parties, yet still, however loosely the case may have been presented, it is the duty of the Court to apply the principles which apply to it in common with all other cases of contract & to see that he damages which may be assessed by the Jury are founded on proper allegation & proof.  It is clear that the parties contemplated the probability of the work not being completed within the time limited, & they provided a specific penalty for the failure viz. 25£.  Now without binding the plf to this sum, as one by which he had consented to measure his own damage, yet, without allegation or proof of special damage the Plf could only recover such reasonable & moderate damages, as he might be supposed to have sustained from the time that the Deft might, by the agreement to have completed his contract, to the time of action brought.  The only allegation, of damage in the declaration, is the loss of the profits which the plf expected to derive from the [p. 148] quantities of flour which he might have ground in his mill.  Assuming this averment to be sufficient to support the proof of special damage, & adverting to the proofs it is established in evidence, that the foundation of the engine was completed on the 8th February 1834.  The deft had by the agreement, from that time 10 weeks to complete the erection of the engine, which would have expired on the 21st April.  The action was brought about the 30th April.  So that there would be only nine days interval of time, during which the plf could have been deprived of any profit from the operations of the engine, had it been able to work for those nine days.  It was also proved by Mr. J. Hughes, that such a mill / 14 horse power / would at the utmost only earn 35£ a week.  So that upon this calculation, the plf could scarcely be entitled to damages to the amount of 250£ for the 9 days prior to the action brought.  And even admitting [p. 149] that the Jury were not tied down to this mode of computing the damages, but might take into their calculation the time that might elapse before the Plf's engine & flour mill could be placed in working condition, yet there was no evidence to warrant so large a measure of damages as they awarded.  The case was one of nonfeazance merely.  There is no averment whatever in the declaration which will bear the character or sustain the proof of malfeazance in the performance of the contract. --  Notwithstanding this a good deal of the evidence offered at the trial was for misfeazance, although not applicable to the issue, which probably had its effect on the minds of the Jury in assessing their damages, and the Court cannot avoid taking notice that in the subsequent action brought by Biddulph against Girard on the quantum nonsuit & for materials supplied, the latter, had full credit in his set off for the expense he had incurred to complete the work & set the mill going, after Biddulph had [p. 149] abandoned his contract.  This last argument although expost facto, & not in itself certainly a ground for granting a new trial, yet it forms a feature in the case, & impresses upon us, in common with all the other considerations, that the damages awarded by the Jury are more unreasonable & extravagant & that justice has not been done.  Upon these grounds, we have after a renewed & anxious consideration of the case arrived at the conclusion that there ought to be a new trial.

Rule absolute for a New trial.[ 2]


Bidduph v Girard

Forbes C.J. Judgment.

It was intimated from the Bench, at the close of the arguments in this case, that the court did not then see any sufficient ground for disturbing the verdict, but would reserve the expression of its judgment, until it was ready to decided upon the motion for the new trial in the [p. 150] case of Girard v. Biddulph, which the court had taken time to consider.  The Judges have since re-considered the case, & they find no reason to alter the opinion they had at first entertained.  Of the numerous grounds alleged in the notice for a new trial, only one appeared to be pressed with much reliance by the counsel for the deft & that was; that the contract being entire, could not be apportioned, & that the plaintiff was bound to perform all he had undertaken, before he could sue for the first instalment of 150£.  The doctrine upon this point, as cited from the bar we do not discuss, but assuming the law to be clear, it was still a question of fact, whether the plf had not performed so much of the contract, as was necessary to entitle him to the sum stipulated for, & there was evidence given on both sides upon this point.  According to the statement of two of the plf's witnesses, the engine was completed as an engine, notwithstanding the deficiency of four pipes, & although this is subsequently qualified by a nice distinction [p. 151] between the engine itself and its necessary adjuncts, yet the witness, lays he could have added the four pipes in two days work, and estimates the work at about 30/s.  This amount is so small in itself, that independently of the moot point, whether the addition of the pipes formed a necessary part of the completion of the engine within the terms of the agreement, it could not have formed a ground for lending the case to a second Jury, especially as it appears, that the case was fully investigated, & the deft has had the allowance of a large deducted from the sum agreed to be paid to the plf for his work.  We think that substantial justice has been done, therefore refuse the application for a new trial.

Rule Refused.



[ 1] The initial trial in Biddulph v. Girard was heard on 14 and 15 October 1834.  The Australian reported on 17 October 1834 that it was an action brought upon a special agreement to recover £156 which was agreed to be paid when the engine was erected.  A further claim was made for work done, not mentioned in the agreement, and the whole claim was for about £300.  The defences were first, that the engine was not erected according to agreement, secondly that the defendant had spent £70 in supplying deficiencies to make the engine work and that this should be deducted from damages, and thirdly, set off.  A great many witnesses were heard, with a variety of views as to whether the engine was erected, though all agreed that it was not complete at the time it was started.  The jury returned a verdict for £99 18s: Foster and Williams for plaintiff; Keith and F. Stephen for defendant.

The Australian, 21 October 1834, reported the following among its reports of cases heard on 18 October 1834: ``Girard v. Biddulph. - Was an application of a similar nature, made by Mr. Williams, and opposed by Mr. Keith, and after some discussion, the court refused the nonsuit upon payment of the costs of the day.  (This it was urged, was in direct contra[v]ention of a late rule adopted by the court, and Mr. Keith again, at the breaking up of the court, as amicus curiae, cited the English rule.  We did not ascertain the decision, but on this one point, the rule has always been varying to the occasional great discomfiture of attornies, who are guided by precedent."  The previous action, Kinsman v. Taylor, ``was an application for judgment as in case of a nonsuit, the plaintiff not having entered his cause for trial."

The arguments for and against a new trial in Girard v. Biddulph were heard in September 1834: Australian, 19 and 23 September, and 3 October 1834.  In the latter report, the Australian said that the initial trial before a special jury took three days.  It also reported that the court was occupied nearly all day on 27 September 1834 in hearing arguments, but that it was ``so uninteresting as to preclude the necessity of a report."  The court decided to postpone judgment as there were matters between the same parties under the same contract.

For other reports of this litigation, see Australian, 3 June 1834; Sydney Gazette, 25 September 1834; Sydney Herald, 5 June, 25 September 1834.  Girard also sued Biddulph for assault over the dispute concerning the erection of the steam engine.  An argument over payment led to an accusation of telling a lie and then a small amount of horse whipping.  The jury awarded damages of £25: Australian, 8 July 1834.

[2 ] After this order was made for a new trial, the case was retried in June 1835 and £83 damages awarded.  The Australian, 23 June 1835 recorded the following:

``Girard v. Biddulph. - This was an action for breach of contract, which was tried last term, when a verdict was returned for the plaintiff, damages £250.  A new trial was obtained on the ground of excessive damages.  Verdict for the plaintiff - Damages £83."

See also Dowling, Proceedings of the Supreme Court, State Records of New South Wales, 2/3290, vol. 107, p. 120 (hearing in February 1835, but noted in Dowling's shorthand) and see pp 161and 165 (also in shorthand).


Published by the Division of Law, Macquarie University