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

Thompson v. Kenny [1834] NSWSupC 107

damages, expectation - contract, expectation damages for breach of - trover - Argyle

Supreme Court of New South Wales

Burton J., 13 October 1834

Source: Sydney Herald, 16 October 1834[ 1]

Monday. - Before His Honor Mr. Justice Burton, and a Common Jury:-

Thompson and another v. Kenny. - This was an action of trover, brought to recover the sum of £150, arising out of the following circumstances: Plaintiffs are carcass butchers, and defendant is an extensive sheep-farmer residing in Argyle.  In the month of June last, plaintiffs purchased at Argyle six hundred sheep from defendant, and the following memorandum of agreement was put in in behalf of plaintiffs: - ``I hereby agree to sell to Messrs. Jackson and Thompson, six hundred sheep at 12s. 3d. per head, to be delivered at Sydney; signed F. Kenny."  Some time subsequently, plaintiff received a letter from defendant stating, that in consequence of the overseer having sent a number of the old wethers to a distant station, on account of their being affected with the rot, he would not be able to supply the the [sic] number agreed on, but a portion would be sent by the 21st instant; hoping that plaintiffs would sustain no inconvenience thereby.  Plaintiffs subsequently received three hundred and seventy sheep from defendant's shepherd, about which time a very considerable rise took place in the value of sheep; and in a day or two after the sheep had been delivered to plaintiffs, a brother of the defendant who acts as his superintendent, forcibly drove them away from the shepherd who had charge of them, and disposed of them to other parties.  Plaintiffs therefore brought their action to recover the amount of loss sustained by them, owing to this act of defendant.  It was proved by the evidence that sheep were then carcassed at 15s. each, and defendant himself had tendered a quantity of skins for sale to a witness at 5s. each; skin wool was then selling as high as 1s. 5d. per pound.

On the part of the defendant, Mr. Williams contended that his client was entitled to a non-suit on two grounds; first, that no evidence had been adduced that Thompson and Jackson, who appeared on the record, were in partnership, citing 2 Saunders, 703; and secondly, that no connexion had been legally proved between defendant and his agent in the case.

His Honor over-ruled these objections.  Defendant had been proved to have offered the sheep for sale to Mr. Charles Smith, subsequently to their having been taken from plaintiffs' shepherd.  It was sought to be shewn that it had been a specific understanding between the parties that the sheep should be paid for on delivery, and evidence was put in to shew that Thompson had promised to wait on defendant's agent on the morning following the delivery, for the purpose of paying for them, but he never attended, and when a person was sent to his residence it was discovered that he had removed and could not be found; in consequence of this treatment the sheep had deen [sic] taken possession of. 

It was contended by Mr. Keith, on behalf of the plaintiffs, that nothing had been offered in proof of the agreement to pay for the sheep on delivery, and even admitting that fact, surely plaintiff was justified in withholding payment until the contract had been complied with on the part of the defendant.  It was shewn by the agreement put in, under the signature of the defendant, that the number of sheep which should have been delivered to plaintiff were six hundred, whereas three hundred and seventy only had been delivered; notwithstanding insinuations to the contrary, plaintiffs were perfectly solvent, and would have been ready to satisfy defendant's demand for the six hundred sheep which defendant was bound to deliver.

His Honor put the case to the Jury, who retired for about an hour, and returned a verdict for plaintiffs - damages, £50.



[1 ] On expectation damages, see also Park v. Kenny, 1834.

Published by the Division of Law, Macquarie University