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

Smithers v. Hughes [1834] NSWSupC 38

barter - assumpsit - Statute of Frauds - parol evidence rule - part performance doctrine

Supreme Court of New South Wales

Burton J., 19 March 1834

Source: Sydney Herald, 24 March 1834[ 1]

Smithers v. Hughes. - This was an action of assumpsit, brought to recover 20 hogsheads of beer, balance of a certain number agreed to be delivered by the defendant, in consideration of two farms sold to him by the plaintiff; and also to recover damages sustained by their non-delivery, laid at £200.

The facts of the case are these: - In the month of January, 1833, plaintiff sold to defendant two farms, for which he was to receive a certain sum of money, and so many hogsheads of beer; the money was paid, and a portion of the beer, but in December last the defendant refused to supply the remainder; therefore the present action was brought.

Mr. Wentworth stated for the defence that the ground of refusal to supply the remainder of the beer was, that the plaintiff not only refused to return the casks in the which the beer had been delivered, but had actually made use of them to send out beer from his own brewery.

In stating the case to the Assessors, his Honor observed that had the fact been proved that plaintiff refused to return the casks, still that would not be a justification on the part of defendant for not delivering the beer, but plaintiff would be subject to an action of trover.  The Assessors found a verdict for the plaintiff - damages, £72 1s. being at the rate of £2 10s. per hogshead.  Messrs. Foster and F. Stephen for the plaintiff, and Messrs. Wentworth and Unwin for defendant.


Forbes C.J., Dowling and Burton JJ, 4 April 1834

Source: Sydney Herald, 10 April 1834[2 ]


Smithers v. Hughes. - Mr. Wentworth moved for a new trial in this case, on two grounds.  1st. - That there was a decided variance between the declaration and the proof prodused [sic], by the documents which had been laid before the Court. 2nd. - That even supposing the evidence given by the documents was properly gone into, which he did not admit, the proof also failed.  Both the documents were clearly void by the statute of frauds.  Mr. Wentworth here quoted several law authorities touching the point on which he rested his motions.

Mr. Foster contended that the statute of frauds could not apply in the case.  The plaintiff had paid for the beer which defendant refused to supply him.  If the plaintiff had sued for the value of the land sold, the defendant would no doubt have produced the receipt for the consideration money attached to the deed, as an answer to the action.  With respect to the document objected to by his learned friend, it was not put in as a contract, but a memorandum between the parties, to the effect that part of the proceeds of the sale of the land should be retained in the hands of the defendant as payment for a certain number of casks of beer to be supplied the plaintiff.  As to the merits of the case, there could be no doubt it had not been attempted to be relied on by the defendant, whose case rested entirely on the ingenuity of his learned friend.

Mr. Wentworth insisted that parole evidence could not be received after an agreement had been reduced to writing.

The Court was of opinion that this was a money transaction - it was not the farm, but the money produced by the sale of the farm, that was the consideration for the beer.  The case therefore stood clear of the statute of frauds.  The other objection as to the variance could not be sustained, and there was no ground for disturbing the verdict - Motion refused.[3 ]


Forbes C.J., Dowling and Burton JJ, 4 April 1834

Source: Dowling, Proceedings of the Supreme Court, State Records of New South Wales, 2/3279, vol. 96


[p. 21] Assumpsit for the breach of an agreement for the non delivery of 80 Hds of Colonial beer.  The first count of the declon stated that in conson that Plf had purchased 80 Hds of beer of the Deft, at the price of £2.10:-- per Hd. then paid, the deft undertook to deliver to the Plf 80 casks of beer, as the Plf might require the same.  Breach refusal to do as on request.  Second count for 51 casks.  Plea non assumpsit. [p. 22] Second a tender.  Third, that the Deft was unable to supply the beer, because the Plf did not return the casks.  At the trial before Forbes C.J. during the late term, it appeared in evidence that the Plf had conveyed by deed to the Deft a farm of his valued in money at £237.10: -- Part of the purchase money was a bill of Exchange delivered as cash.  By a separate [sic] memorandum the Deft wrote in the following terms ``I undertake to deliver to W. Smithers 80 casks of good colonial beer, as he may require the same, the casks to be returned."  The deft afterwards delivered 29 [casks] and he refused to deliver the remaining 51 because the casks were not returned.  A bill of parcels & receipts of the 29 casks was proved & 2.10 per cask.  The Judge received evidence of the value of good colonial beer per Hd at the time the farm was sold by Plf to deft. - which was proved [p. 23] by the witness as to be £2.10. - He held that although it might be customary to return the casks, yet that was not a condition precedent to the fulfilment of the deft's contract.  The plf therefore had a credit.

Wentworth now moved for a nonsuit or new trial on the ground first, that declaration was not proved by the evidence adduced.  There was no agreement proved to deliver 80 Hds of beer at the price of £2/10 per Hd. - The deeds of conveyance purported to the sale of land with so much money in hand paid -- & their was nothing said about beer.  - The memorandum relied upon to piece out the case, was nudum pactum, there being no consideration stated & therefore it could not prove the contract.  Secondly the Judge improperly admitted evidence to shew the consideration, there appearing to be none in the face of the memorandum stated. [p. 24]

Foster. Contra.  The contract between these parties is stated according to its legal affect, that is proved by the documents produced.  As to consideration: here the consideration has been in fact paid.  This is not an executory consideration, but a consideration actually executed.  The beer was actually paid for by the land, noticed at so much money.  The stat. of funds applies only to cases where there is a creditor to be paid.  Here it was paid.  But here there has been an actual delivery of 29 casks, which takes the case out of the statute.  The parol evidence was only admitted to shew the measure of the damage.  Conson not expressed may be given in evidence by parol. 3 Bing. 112.

Forbes C.J. thought the case properly decided.

[p. 25] Dowling J.

I think the verdict ought not to be disturbed.   The Plf by his declaration states the legal effect of the contract, & he proves it, first by shewing the original bargain between the parties.  By another written document he shews in what way the unpaid part of the consideration for the land was to be satisfied.  It was one entire transaction, though evidenced by two or more documents.  Now though you cannot vary or alter a written contract by parol yet a contract may be evidenced by more than one writing, so as to collect the intention of the parties.  The memorandum & the Bill of parcels, shew that to a certain extent the deft has adopted the contract in the sense in which the Plf understood it, -- for he actually delivered 29 casks of beer @ 2/10£ per cask, & refused to deliver the remainder because the [p. 26] casks were not returned.  Here the conson was actually paid.  Surely the Judge might receive evidence to shew in what the consideration for the bargain consisted.  The proof of the value of beer at this time, was only the mode of estimating the damages.

The farm was valued as money, but to be paid for in beer at a money price.  What that price was, must be proved by parol, if the amount does not appear in writing, -- especially if the consideration be in fact executed.

Burton J. was of the same opinion & noted the distinction between the 4th & 17th sections of the State of Frauds -- & he cited Phillips 530 - 6th Ed. to shew the parol evidence was receivable.

R. R.[4 ]



[1 ] See also Sydney Gazette, 20 March 1834; Australian, 21 March 1834.

[2 ] See also Australian, 14 April 1834; and see  Sydney Gazette, 8 April 1834.

[3 ] The Australian, 14 April 1834 recorded the decision as follows: ``Their Honors delivered their judgments seriatim to a similar effect, deciding that the beer having been paid for, brought the case within the exce[p]tions of the statute, that the agreement was prior to the memorandum for delivery, and of which evidence could be given, not by way of supplying a defect in or altering the terms of a written contract, but really to shew the contract of which the paper was merely a supplemental part. -  New trial refused."

[4 ] ``Rule Refused."

Published by the Division of Law, Macquarie University