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

Park v. Cooper [1834] NSWSupC 21

sale of goods, merchantable quality - wool industry

Supreme Court of New South Wales

Dowling J., 12 March 1834

Source: Sydney Herald, 20 March 1834[ 1]

March 12. - Before His Honor Judge Dowling, and two Assessors.

Park v. Cooper. - This was an action of assumpsit brought to recover £44 17s. 6d. amount over-paid for wool.

The facts of the case are these - Plaintiff agreed to purchase the clip of two thousand four hundred sheep, at 1s. 4d. per lb., to be in good and merchantable condition.  Twenty-one bales was the quantity bargained for, and plaintiff found in subsequently opening them, that some were in a very bad state, and decidedly came under the denomination of refuse wool, for which an agreement was made to pay 7d. per lb.  On these grounds the plaintiff sought to recover the sum over-paid.

Mr. Chapman deposed that the signature to the agreement, as well as that on the back of the cheque, paid for the wool, was defendant's.

Mr. James Davison, proved the payment of the cheque for the whole amount, which cheque was produced in Court, and on the receipt of which, Mr. Cooper said he had now got his wool in his pocket.

Mr. J. H. Potts proved that the amount of the cheque had been paid at the Bank of New South Wales.

John Dwyer, in the employ of Mr. Park deposed that he went to the Distillery on the 11th of December last, and weighed twenty-one bales of wool; on weighing the twelfth, finding that it was considerably heavier than the others, observed that there must be something more than wool in it.  He cut it open, and found it very different from the rest; the bale weighed 2cwt. 2 qrs. 7lbs.  Several other bales were afterwards found to be very bad, in consequence which, witness spoke to Mr. Park about it, who stated that he would hold a survey on it.  The wool was shewn to several gentlemen, and witness believed it to be refuse wool.

Cross-examined. - There is some which, if it had not the scab in it, would not be refuse wool; witness had no orders to examine it, and stated that he should be sorry to give 1s. 6d., or 1s. 4d. per lb. for it.

Mr. W. Wallace stated that he was called upon to examine some wool in conjunction with Messrs. G. Bunn and W. Hirst, and the opinion found upon the occasion was that four of the bales was refuse wool; [the certificate was here put in and read, to the effect that after a careful examination four of the bales were found to contain only refuse wool, badly washed, and one bale of a quality not so inferior, but coming under the denomination of refuse wool, having a portion of broken fleeces, badly scabbed.  Witness, on cross-examination, stated that the prices of wool vary much, and should consider the wool in question dear at 1s. per pound.

Mr. W. H. Dutton deposed that he saw the wool in question, at Mr. Park's store, some part of which was very bad, but he considered that out of 40 cst. one quarter could not be refused.

Mr. E. B. Mowle stated that he had examined the wool in question, and should purchase such as refuse wool.

Mr. F. Lord stated to the same effect, and observed that he would not but such for fleece wool - it was what was considered as refuse wool, and not worth nine-pence per pound.

Mr. J. W. Ward proved the delivery and copies of letters from plaintiff's attorney to Mr. Cooper.

Mr. F. Stephen proved the calculation to be correct, as to the amount overpaid.

Mr. Wentworth, for the defence, stated that in point of law, plaintiff had put himself out of the Court, by not returning the wool, instead of trying his action to recover money, and cited an authority whereby it was shewn that it is a principle in law, that if a man pays money to another, knowing the circumstances, he cannot recover it again, and the parties must be placed in statu quo.[2 ]  The learned Counsel was desirous to let the defence rest upon this ground, but Mr. Robert Cooper Senior had expressed a wish to give his testimony, to rebut that adduced by plaintiff; and who stated that he was in Mr. Park's store, to examine the wool, when plaintiff asked witness' son if the wool was all alike? his son said in reply, ``There is the wool, Mr. Park, you can examine it yourself;" six or seven bales were then opened, and Mr. Park was satisfied with it; witness' son said that he should not deliver the wool without the money; Mr. Park said he would send a man to see it weighed, and therefore witness ordered one of his men to sew up the bales that had been opened; some time after, a man was sent, who weighed the wool in witness' presence, and his son got a cheque for it, and it was delivered; some few days after, Mr. Park came to witness' son, and said he found out that one of the bales was not so good as the others; witness told him he inspected them himself, and could say nothing about it; he came again, and found fault with some more, when witness told him that it was no use to have any words about it, if he was not satisfied he should have his money again; Mr. Park then said he had too great a bargain, or words to that effect; witness told him he would give him 1s. per pound for the very worst of it.  The wool came down from the country very dirty, the sheep having the scab; it was washed, and 260 lbs. weight of dirt taken from it; it was broken in washing, re-packed in five bales, and put along with the other; it had no skirtings.

Two witnesses, servants of Mr. R. Cooper, Senior, were then sworn, who stated that the wool was broken in the washing, and that although it was very inferior wool, they did not consider that it was refuse.

Mr. Foster replied, and after his Honor had remarked upon the evidence, the Assessors returned a verdict for the plaintiff - Damages, £44 17s. 6d.



[1 ] See also Australian, 15 March 1834.  The trial notes are in Dowling, Proceedings of the Supreme Court, vol. 93, State Records of New South Wales, 2/3276, p. 151.

[2 ] The Australian, 15 March 1834, put this as follows: ``Mr. Wentworth, in a very able and ingenious speech, stated the case for the defence, saying that in point of law plaintiff had put himself out of Court, by not returning the wool, instead of trying his action to recover money paid and cited, an authority whereby it was shewn that it was a principle in law, that if a man pays money to another, knowing the circumstances, he cannot recover it gain, [sic] and the parties must be placed in statu quo, the learned Counsel was inclined to let the case for the defence rest upon this ground, but Mr. Robert Cooper, sen being very anxious to give evidence to rebut that adduced by the plaintiff, was put in the box."

Published by the Division of Law, Macquarie University