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

Park v. Kenny [1834] NSWSupC 78

damages, expectation - contract, expectation damages for breach of - restitution - Lake George - sale of goods, rescission for breach

Supreme Court of New South Wales

Trial, 26 June 1834

Source: Sydney Herald, 3 July 1834[1 ]

This was an action brought by plaintiff, a wool merchant of Sydney, against the defendant, a settler residing at Lake George, to recover a compensation in damages for a breach of agreement.  It appeared that, previously to the shearing season, an agreement was entered into between the parties for the purchase of defendant's flocks, about 5000 sheep, at 1s. 3d. per lb., to be delivered to Sydney, well washed, and free from scab, to be paid for on delivery.  Some time subsequently to the shearing season, the plaintiff was informed that a quantity of defendant's wool had come to town, and not having received it according to agreement, he suspected that there existed some strange dealing, when he dispatched a person to defendant's station, to make the necessary inquiries respecting it.  At this time a considerable rise in wool had taken place in the Colony, owing to the statement which had arrived as to the sales in the London market.  Defendant, on finding that the plaintiff had caused an inquiry to be made respecting the wool, addressed to him a communication, to the effect that he regretted he would be obliged to decline making any attempt at washing this season, the extreme drought having rendered it impossible, the water of the Lake being so brackish as to be totally unfit for the purpose, and the nearest stream being at a distance of twenty miles, it would be impracticable to attempt driving them such a distance without involving risk of infection, being surrounded by unhealthy flocks, to say nothing of the risk of incurring a penalty under the Act of Council; it was therefore a matter of regret to him that he would have to make the best he could of it in an unwashed state, by which he would have to submit to a very considerable loss.  To this communication plaintiff returned an answer, stating that as he had been prevented from washing the sheep he had not objection to take the wool in its unwashed state, submitting it to arbitration how much should in equity be deducted from the price stipulated on in their agreement, by which it should have been delivered in a clean state.  To this communication no answer was returned, but plaintiff ascertained that defendant had sold the wool to Mr. Ryder - thirteen bales, containing 2, 342 lbs., at 1s. 6d. per lb., and forty-three bales, containing 16,878 lbs., unwashed, at 1s. 1½d. per lb.  Plaintiff caused a survey to be held on the wool at Mr. Ryder's stores, when the whole was adjudged by Messrs. Dutton and Morgan to be worth 1s. 9d. per lb., deducting 40 per cent. from the latter, as a loss which would accrue by washing, leaving a gain to defendant by the non-performance of his agreement of about £300, which sum the plaintiff now sought to recover.

For the defence it was set forth that so far from defendant having been a gainer, as stated by the other side, he had sustained most serious losses from his inability to wash the wool; and witnesses were produced, who deposed that the expense of shearing and carriage of wool in its unwashed state exceeded that of clean wool by at least 40 per cent., and that defendant had been unable to wash his sheep from natural causes.

His Honor was clearly of opinion that defendant was bound by his agreement, and left the case to the Jury on the mere question of damages, in the assessment of which they would be guided rather by the price actually obtained than by that stated by the board of survey.

The Assessors found a verdict for the plaintiff - damages, £155 17s. 6d.



[1 ] See also Australian, 27 June 1834; and correspondence, Australian, 4 July 1834.  On expectation damages, see also Thompson v. Kenny, 1834.  See Australian, 10 March 1834 on earlier proceedings in this case.

Another attempt at the recovery of expectation damages failed in McFarlane v. Smith, Australian, 27 February 1835; Sydney Gazette, 26 February 1835.  The plaintiff sold sheep to the defendant, who rejected them.  When they were returned to the plaintiff, he resold them and sued for the difference.  The defendant claimed that the sheep were scabby, but the plaintiff argued that ``his mutton now was like that of Caesar, the well-known Roman Butcher, quite above suspicion."  The defendant won the action after Dowling J. summed up by declaring the law to be ``that when bargains of this nature were repudiated as soon as the nature of the purchase was discovered, the purchaser was justified in doing so."

For another expectation damages case concerning damages for non delivery of hay on a rising market, see Johnson v. Brennan, Australian, 3 October 1834.

Published by the Division of Law, Macquarie University