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

Chadley v Wyatt [1835] NSWSupC 60; sub nom. Chadley v. Wyatt (No. 1) (1835) NSW Sel Cas (Dowling) 669

Supreme Court of New South Wales

Burton J., 17 June 1835

Source: Sydney Herald, 18 June 1835[1 ]

Wednesday. - Before Mr. Justice Burton, and a Special Jury.

Chadley v. Wyatt. - This was an action brought by the plaintiff, an Architect, against the defendant, to recover 5 per cent. commission on £5,000, the estimated value of the range of buildings in George and King-streets, the property of the defendant, erected under the direction and superintendence of the plaintiff, as architect, as per agreement.  Defendant put in a plea that the plaintiff had not evinced that skill which was necessary for the due performance of the contract, and had thereby subjected him (the defendant) to loss and damage by his negligence and unskilfulness in the waste of materials, arising out of his unskilful departure from the plans laid down.

It appeared that the plaintiff and defendant entered into a contract for the erection of the said buildings, which was to be performed in a skilful and satisfactory manner, in consideration of which, plaintiff was to receive the commission of 5 per cent on the value of the whole when finished; the buildings proceeded nearly to completion, when defendant found fault with certain portions of the work, and finally dismissed plaintiff, putting the same in that state of forwardness, into the hands of some other party.  Several witnesses were examined for the plaintiff, who being men of professional skill, stated their opinions, that the erection of the buildings had been executed in a skilful and scientific manner.  On the part of the defendant several witnesses were called, who spoke as to the damage defendant had sustained from the negligent and unskilful manner in which the work had proceeded under the direction of the plaintiff; many portions of the building being of necessity taken down again and rebuilt at a considerable expense; very considerable loss was also occasioned by a number of window sashes,, doors, door-frames, &c. being made more than were required for the building, and a quantity of building timber to a considerable amount had been rendered useless.  After hearing the evidence on both sides, the Jury, composed principally of Merchants resident in Sydney, visited the buildings and inspected them narrowly in every part.  On their return to Court, they were addressed at considerable length by Mr. Wentworth for the defendant, who dwelt chiefly on the incapacity of the plaintiff is an architect, and who having subjected the defendant to serious loss in repairing his unskilful performances, ought never to have appealed to a Jury for compensation for services of such a nature.  The Solicitor General replied at great length, detailing circumstances which tended to remove the stigma which had been cast on the professional character of the plaintiff.  His Honor after a most elaborate charge, put the case to the Jury, who returned a verdict for the plaintiff, damages £132 8s.  The case had occupied the Court and Jury the whole of Tuesday, and terminated at eight o'clock last evening.  For the plaintiff, Messrs. Plunket and Therry, with Mr. C. H. Chambers, Attorney.  For the defendant, Messrs. Wentworth and Foster, with Mr. Unwin, Attorney.

 

Forbes C.J., Dowling and Burton JJ, 27 June 1835

Source: Sydney Gazette, 30 June 1835[ 2]

Chadley v. Wyatt.  In this case Mr. Wentworth moved the Court on the part of the defendant, for a new trial, on the ground, 1st. that the verdict was contrary to evidence; and 2dly. From the misbehaviour of the Jury who tried the case.

Mr. Justice Burton, the presiding Judge at nisi prius, briefly stated to the Court, with reference to the second objection raised for consideration of the Judges, that the cause was tried before him on the 16th June instant, and that about 5 o'clock on the afternoon of that day, finding that the that the cause would probably occupy the whole of another day, he adjourned the Court until the following morning.  On the morning of the 17th, Mr. Wentworth mentioned to the Court, that four of the Jurors, Messrs. Robert Johnstone, Henry Sith, Henry Falwasser, and Hamilton Hume, had been seen on the plaintiff's premises that morning in communication with the plaintiff, at the buildings tenanted by him from the defendant, which said buildings were part of the subject of the action before the Court.  Upon this he, the learned Judge, questioned the Juror, and they, the gentlemen above-named admitted having gone upon the premises to ascertain personally the width of a certain staircase, which one of the witnesses had described as being so small that a person could not carry a tray up the stairs.  The whole of the four Jurors referred to, denied that they had held any conversation whatever with Mr. Chadley upon the subject, or he, the learned Judge, should have felt it his duty to have committed the plaintiff for contempt of Court.  He was of opinion, that the Jury had erred from ignorance, and was quite satisfied that they were above being guided by any improper motives.  He had reserved the conduct of those Jurors for consideration, and had made a minute upon his notes of the objection taken by counsel respecting their misbehaviour.  In an after stage of the proceedings, he had deemed it advisable to send the whole of the Jury to view the same premises.

The Chief Justice observed, that as it appeared the case had occupied two days in trial, and that as considerable time must therefore be expended in reading the Judge's notes of evidence, he thought that previous to the first objection as to the evidence being argued, the learned Counsel had better address himself to that point which involved the question of misbehaviour of the Jury.

Mr. Wentworth then rose and said, that he would now address their Honors upon that, which was probably the main point for their consideration.  He would read to the Court the affidavit of Mr. James Simmons, which stated ``that a little before ten o'clock on the 17th June, he saw four of the Jurors, namely, Messrs. Johnstone, Smith, Falwasser, and Hume, standing opposite the house occupied by Messrs. Mitchell and Niven, one of the buildings on the subject of which the action was brought, and that the said four Jurors afterwards went to the back part of those premises, attended by Mr. Chadley, the plaintiff, who had a measuring rod in his hand."  The learned gentleman then reminded Mr. Justice Burton, that the denial of the Jurors as to their having spoken to Mr. Chadley upon the subject of the matter at issue, had reference only to what took place in his, Mr. Chadley's house, and did not have any reference whatever to what occurred at Messrs. Mitchell and Niven's premises.  The uncontradicted fact was established upon affidavit, that Mr. Chadley attended the Jurors on that occasion with his measuring rod in his hand, and he, the learned gentleman, would beg to enquire for what reason he could have done so?  But he contended that the receiving a verbal denial of misbehaviour from the Jury was in itself illegal, for the Jurors would not be allowed by the Court to clear themselves from such an imputation upon affidavit, and if not upon affidavit, why upon a verbal statement?  The Court could not listen to any explanation from a Jury as to the particular grounds upon which they had formed a verdict; nor, in fact, could a Jury hold any communication whatever with the Court as to what might have influenced their decision; such a proceeding was altogether irregular, and could not be properly received.  It was quite clear that the proceeding of the four Jurors in this case to the premises of the plaintiff, without the attendance of the other party to the suit, was an ex parte act, whether it originated with themselves, or with the plaintiff.  Such a step must have the direct tendency of influencing their judgment, and any attempt on the part of suitors to guide the opinion of a Jury in forming their verdict, was held by all the authorities to be a sufficient ground for the granting of a new trial.  The learned Counsel quoted largely from the legal authorities in support of the opinions he had broached.

Mr. Foster followed on the same side.  In addition to what his learned friend had stated, he would beg to remind their Honors of the fact recorded upon the Judge's notes, that Mr. Chadley himself had fetched Mr. Falwasser to his house, for the avowed purpose of meeting three of his brother Jurors upon the question then before the Court, without the concurrence, and in the absence of the defendant.  The Counsel for the defendant had, at the time this circumstance was mentioned in Court, reserved the question this fact involved, or otherwise they would not have gone on with their case, and they now claimed to be placed in the same state as they were the moment the objection was taken, just as if the defendant had not afterwards proceeded with his case.  It was true that the presiding Judge had afterwards directed the whole of the Jury to view the same part of the premises, but first impressions were generally the strongest, and it was impossible to say what extent the first view of the buildings by the four Jurors in presence of the plaintiff, might have ultimately influenced the verdict of the whole.  The Jury had been induced by the plaintiff to violate the first principle of law, without any permission from the Court, and the learned Counsel contended that the defendant was therefore entitled to have a new trial granted.

The Solicitor General for the plaintiff contended, that although the cases cited from the old books went the full length argued by the other side, yet the more modern authorities did not act up to so strict a rule of law.  For instance, it was held formerly that a Jury once sworn, could not separate under any circumstances, until they had returned their verdict; but latterly, such a proceeding had been sanctioned from necessity, and Juries were frequently in the habit of separating at night, to meet again on the following day. (The learned Solicitor General here cited several cases in point from the legal authorities).  Then, what was the actual state of the case?  The Jury by their verdict had given £25, where two Assessors had formerly awarded £40 for the plaintiff's neglect and unskilfulness as an architect; so there was only a difference of £15 at present between the parties.  If the Jury had been guilty of any irregularity, the Court could fine them for it, but the plaintiff ought not to be punished for their misbehaviour.  He trusted that the rule now sought to be obtained by the other side, being in the discretionary power of the Court, that their Honors would be guided by that broad principle which always influenced the Judges at home in such applications, namely whether justice had or had not been done between the parties.  In this case he contended that justice had been done, and that no future Jury could possibly find any other verdict in the case than the one before them.  On this ground alone he felt satisfied that their Honors would refuse the application for a new trial.

Mr. Therry spoke to the same effect.  The misbehaviour of the Jury consisted in a trifling irregularity, which was remedied before the conclusion of the trial.  It was quite clear that the Jury had acted on this occasion from a strict love of impartial justice, though perhaps they had acted injudiciously.  He was satisfied that ample justice had been done in the case, and that, therefore, their Honors would not send the parties again to trial.

Mr. Wentworth replied.  He would just offer a few observations on what had fallen from the other side as to the present being a question purely within the discretion of the Court.  He denied that it was so; the mere abstract question before the Court was, whether the Jury had misbehaved or not? and if so, the Court was bound to grant a new trial.  If the Court were to take into consideration the probable effects of that misbehaviour, and to make it matter of enquiry how far a jury had been tampered with, it was impossible to say to what an extent the practice might be carried; and it would ultimately have the effect of destroying the purity of the Trial by Jury altogether.

The Chief Justice interrupted Mr. Wentworth, and observed, that the Court could not entertain any such matters of enquiry.

Mr. Wentworth continued. - Then look at the direct tendency of such a proceeding - it was calculated to throw a suspicion around Trial by Jury, and destroy public confidence in that ancient and impartial form of the administration of justice.  He denied that any difference existed in the law of the case, whether the party went to the Jury, or the Jury to the party; but if it were even possible for such a distinction to be made, the plaintiff was clearly not within the benefit of it, for it would be remembered that there was a direct admission that the plaintiff had acted in personal communication with one of the Jury at least.  The learned gentleman denied also that it was in the discretion of the Court to enquire whether justice had or had not been done in the case.  His learned friends on the other side had broached that subject prematurely, but enough had fallen from that irregularity, to shew that injustice had been done.  It was contended, that only £15 was in dispute between the two parties - that is to say, the difference between £40 and £25, the amounts of the two awards.  What! was a difference nearly in the proportion of two to one, no difference?  Suppose the amount had been for hundreds, or thousands, would it have been held to be no difference then?  Why, the very fact of the Jury deducting £25 for the plaintiff's negligence, shows that gross injustice has been done.  But it had been done still farther, for the Jury had allowed the plaintiff a commission not only upon £3000, the admitted value of the works when Mr. Chadley was discharged from superintending them, but they had allowed him a commission upon £1500 value of the works, which it was also admitted was effected by other hands after his dismissal.  Another point for consideration was, that the defendant had actually offered the plaintiff his commission upon the £3000, and he, the learned Counsel, now renewed the offer of £150, minus the £25, which the Jury had admitted should be disallowed for the plaintiff's negligence and unskilfulness.

The Chief Justice regretted that he should ever be compelled to give a judgment, which could have the most distant tendency to encourage litigation, but the present was a case in which the Court could exercise no discretion.  An objection had been taken in limine to the proceedings of the Court, in consequence of the misbehaviour of the Jury, and it certainly did appear to him that that misbehaviour was of such a nature, as to leave the Court no discretion whatever in granting a new trial.  It was the clear duty of a Jury to hold no communication whatever, neither with the parties themselves to the suit which they were sworn well and truly to try, nor with any other person on the same subject.  A departure from this course, was in direct violation of the first principle of justice, and could not for one moment be tolerated.  The plaintiff himself had become an active agent in bringing one of the jurors to his house, to meet others of the Jury on the very subject then at issue before them.  He, the learned Judge, was not aware of a stronger case than this, being laid down in any of the authorities.  Again, what could have been the object of the plaintiff's accompanying the four Jurors with his measuring rod in his hand - it was clearly for the purpose of making an ex-parte examination - effected too, in the presence of one party, without the attendance of the other, and it was impossible for the Court to get over that circumstance.  It was possible certainly that the Jury might have been influenced by good motives in acting as they had done, but it was nevertheless most extraordinary conduct for sensible men to pursue.  His Honor said, that trial by jury was as yet in its infancy in the Colony, and it would act as a most dangerous precedent if the Court were to overlook such a violation of the first principle of justice.  ``As we begin," said the learned Judge, ``so let us go on." - I am of opinion that a new trial must be granted.

Mr. Justice Dowling coincided with the Chief Justice that this was a mistrial.  Impartiality in the Jury, was the very essence of justice, and no Juror ought to form his mind, by seeing or hearing any thing except what took place in open Court.  It was impossible to say what effect the first impression of these four Jurors, might have afterwards had in influencing the opinions of the others.  The system of Jury trials was yet young in the country, and it was incumbent on the Court that Jurors should be taught their duty.  His Honor was of opinion that a verdict under such circumstances was not good in law, and that a new trial must therefore be granted.

Mr. Justice Burton regretted to say that a new trial must be granted, and he had arrived at this conclusion in consequence of the personal communication which had taken place between the plaintiff and the Jury.  This circumstance alone subjected the verdict to such a suspicion, that the Court could not get over it.  He agreed with the Chief Justice, that as this was the very commencement of Juries in this colony, it was necessary to discountenance such a proceeding, or the whole justice of the country might be affected by it.  He could find nothing in the evidence on which it was possible for the Jury to have found a different verdict, and he believed their statements, that they had suffered no conversation to take place with the plaintiff upon the subject; but the principle involved in the question before the Court was so dangerous a one, and it might lead to such pernicious consequences, that the Court had no discretion in granting a new trial.  Venire de novo granted.[3 ]

 

In banco, 27 June 1835

Source: Dowling, Select Cases, Vol. 7, Archives Office of New South Wales, 2/3465

[p.17] [During an adjournment of a trial on a builders account, some of the persons went to inspect the work done in company of the plf, without the consent or presence of the deft, his counsel or attorney, & though there was no proof of improper communication, & the plf getting a verdict, the Court granted a new trial.]

 

Chadley v Wyatt

 

This was an action on a Builder's account for erecting certain House in Sydney.  The main question was upon the character and quality of the workmanship.  The plf had a verdict beforeBurton J. & a special Jury.  A motion was now made for a new trial on the ground of the misconduct of the Jury who tried the cause.  It appeared that the trial took place on the 16thJune, and at five in the afternoon, the case of the plf being closed, the judge adjourned the case until next morning, & the Jury were allowed to go to their homes.  Next morning before ten o'clock, some of the Jury accompanied by the plf went to the premises and inspected the work, without the consent, & in the absence of the Deft, his counsel or attorney.  The plf only pointed out the work done, & no improper [p.18] communication appeared to have taken place.  At the sitting of the court, a complaint was made by the defts counsel of this proceeding on the part of the Jury.  The Judge entered into a viva voce examination of the conduct of the Jurors & of the plf with a view to fine them for their misbehaviour, but finding that they had acted only through ignorance, & that no improper communication had taken place between them & the plf he allowed the cause to proceed.  Before the case was closed, the Judge allowed the whole of the Jurors at their own prayer, to go under the direction of proper viewers to see the premises, & having done so they found for the plf.

Per Curiam.  It may be that no injustice has been done in this case, but the irregular conduct of the Jurors in question vitiates the verdict.  Impartiality in the Jury is the essence of Justice.  Be it that in this instance [p.19] the offending Jurors acted through ignorance & were not improperly influenced, still whatever evidence reaches them, whether visual or otherwise, should be with the concurrence and in the presence of both parties to be affected by such evidence.  This is a first principle.  We think the purgation of the Juror's contempt by viva voce examination at the trial does not remove the objection, nor in principle, does the fact that the whole Jury had a view before they gave their verdict, make any difference.  The Court has no discretion in the matter & must send the case to a new trial.  This is not like the case of Rex v Kinnear & others (2 B&A. 462 & see cases there collected) for there though the Jury separated without consent during an adjournment of the trial, yet there was no communication of fresh evidence to them during the adjournment.

New Trial granted.

 

Forbes C.J., Dowling and Burton JJ, 18 July 1835

Source: Dowling, Select Cases, Vol. 7, Archives Office of New South Wales, 2/3465

 

[p. 48][1836][ 4]

[Saturday

July 17th]

[An architect retained generally to superintend the erection of certain buildings but dismissed in the process of the work for alleged unskilfulness, cannot in assumpsit for work & labour recover his commission on the value of the work when done, on the ground that he was wrongfully prevented by his employer from completing the work.  The measure of his remuneration is the commission, on the work done, at the time of dismissal, as a quantum meruit.]

J. Chadley v J. Wyatt.

Assumpsit for 225£ for work & labour as a surveyor & architect in drawing plans of buildings for Deft & superintending the erection thereof & for certain commission thereon.  Pleas 1st General issue & 2nd. Payment of 55£ on account & 3rd that the work & labour of Plf had been done by him in so unskilful & negligent a manner as to be of no use of value to Deft.  At the trial the deft gave evidence in support of his special pleas, & a verdict was found for the plf Damages £132.10.  This verdict was afterwards set aside & a new trial granted for the reasons states Ante p.17. - On the second trial a verdict was taken for the Plf, damages 500£ subject to the opinion of the Court of the following case: -

The Deft employed the Plf some time in or about the month of June 1834 to draw plans & specifications [p.49] & to make estimates for the building & erection of a range of houses inGeorge street & King street Sydney, and to superintend their erection as architect for which the deft was to allow the Plf a Commission of 5 pr cent upon the value of the said buildings.  During the progress of the building of this range of houses, viz 26th November 1834 and previous to their being completed, the Deft dismissed the Plf from his superintendence as architect.  The value of the buildings as far as they had then proceeded at the time of the Plf's dismissal amounted to 3000£ .  Their value when completed afterwards amounted to 4500£.  In the month of January last the Deft brought an action against the Plf to recover 500£ for loss & injury which deft alleged he had sustained by the negligence & want of skill of Plf in erecting the said buildings, & on the trial of that cause he recovered damages to the amount of 25£ against the [p.50] present Plf.  If the Court is of opinion that the Plf had a right to his commission only on 3000£ the value of the buildings as far as they had proceeded on the 26th November, the date of the Plf's dismissal, then the verdict to be reduced to the sum of 95£, but if the Court should be of opinion that the Plf had a right to his commission on the sum of 4500£, the entire value of the buildings then a verdict to be entered for the sum of 170£.

Plunkett S.G. for the Plf contended that the contract with the Plf being entire, it could not be severed & he was entitled to his commission on the entire value of the buildings when completed.  If the consideration for the agreement had entirely failed, then the Deft could not have been made liable at all; but such a contract cannot be rescinded in part, & held good as to the rest.  He was dismissed for an alleged cause, which he might have remedied had he [p.51] the opportunity given him for that purpose.  He was ready & willing to complete his contract had he been permitted, but having been prevented by Deft, that is no reason why he should not recover for the whole.  Readiness to perform is the same as performance; Jones v Barkley(Doug. 659).  Had the deft pointed out to the Plf what he complained of in the work, the Plf might have remedied it.  This case is distinguishable from Beeston v Collyer (4 Bing), for the Plf could not be considered as a hired servant, liable to be dismissed when the employer was dissatisfied with him.  Here skill & knowledge were required, & the Plf was employed to exercise these qualities until the work was completed.  The deft therefore could not rescind the contract at his own option, & pay the Plf at the time of dismissal.  If he was entitled to anything he was entitled to the whole.

[p.52]Wentworth contra.  It must necessarily be inferred from the facts found in the special case, that the present Plf was dismissed for want of skill, as evidenced by the verdict in the defts favour for 25£.  There is no principle of law which holds that a person employing another under like circumstances to those in this case, is bound to retain him throughout the whole job.  The case of an attorney is precisely analogous to this.  A client retaining an attorney to conduct a cause, may dismiss him, even without cause, & he is only bound to pay him for his work & labour up to the date of the dismissal.  As well might it be said that the attorney was entitled to all the costs of the suit, as that this Plf was entitled to his commission on the whole value of the building, after he had been dismissed for unskilfulness in the progress of the work.  Is a surgeon dismissed for unskilfulness in [p.53] the treatment of a wound, entitled to his reward for the whole cure if the patient recovers through the skill of another?  Mere contracts for time, are distinguishable from a general retainer, & it would be a bad doctrine to contend that in the very face of the grossest error, you must do on to the end with a man who is incapable of performing the work to your satisfaction.  Here there was no special contract.  It was a mere general retainer upon an implied understanding that the Plf should perform his work in a skilful manner.  As soon as he was found unskilful, the Deft had a right to dismiss him, & pay him only the value of the labour performed.  This action was only on the common counts for work & labour.  If the action had contained a special count stating the contract, & that he was ready & willing to perform it, but that he was wrongfully prevented [p.54] by the deft, & had proved his case, then he might have recovered.  All that the Plf went for, was a quantum meruit, & the rate of remuneration depended only on usage.  Under the common counts he could only recover for as much as his work & labour actually performed were worth.  The argument relied upon on the other side, could only be taken advantage of on a special contract.  The gravamen of the Plf's case is that the Deft prevented him from going on with the work, but this is not alleged or proved.

Forbes CJ.  The gravamen of the Plf's cause of action is the supposed wrongful dismissal by the Deft, & that therefore he is entitled to recover Commission upon the whole value of the work.  Now the Plf only declares for work & labour on a quantum meruit.  It is clear that he could not under a general count recover on that [p.55] ground.  He is seeking now to recover for work & labour done, which he was prevented from doing, by the tortious act of the Deft.  That he cannot do under a common count for work & labour.  It appears to me that the Plf is only entitled to recover for so much commission as was due upon the work done at the date of his dismission [sic].

Dowling J. Burton J. of the same opinion.

Verdict to be entered for 95£.

 

Notes

[1 ] See also Australian, 23 June 1835.

For other litigation between the parties, see Wyatt v. Chadle, 1835; Chadley v. Wyatt, 1836.

[2 ] This is reproduced in addition to the notebook account of the judgment because it contains a lengthy summary of the arguments of counsel.

See also Sydney Herald, 29 June 1835: ``Saturday. - Chadley and Wyatt.  In this case, which was an action to recover 5 per cent. on £4,500 for services performed as an architect, which was tried during the present time, when a verdict was returned for the plaintiff.  Mr. Wentworth moved for a new trial on the ground of improper conduct on the part of four of the Jury who had availed themselves of an opportunity, (the case having been adjourned from the day on which it commenced, until the following day) to make a special examination of the premises, which being communicated to defendant's counsel, an application was made for a non-suit on that ground, which His Honor, Mr. Justice Burton over-ruled, observing that it might be made a question for further consideration, if considered necessary.  The Court was of opinion, that sufficient grounds has been disclosed in the affidavits to call for a new trial, - granted."  See alsoAustralian, 3 July 1835.

[ 3] Venire de novo: to come afresh.  A new trial granted because matters appearing on the face of the record show some irregularity or impropriety.

[4 ] This case was heard in 1835.  It is with the 1835 cases in the notebook, and Forbes C.J. had left New South Wales by July 1836.  See Sydney Gazette, 21 July 1835 for another report of the case.  Adding to the confusion concerning dates is that the Saturday was 18 July, as the Sydney Gazette noted correctly.  (The Gazette also noted that a special verdict for £95 was recorded, the defendant having paid the sum of £55 into court.)

Published by the Division of Law, Macquarie University