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

Goodwin v Lamb and Parbury [1835] NSWSupC 47

interference with contract - common carrier - conspiracy, civil - slander - partnership, liability in tort

Supreme Court of New South Wales

Dowling J., 8 June 1835

Source: Sydney Herald, 11 June 1835[ 1]

Monday. - Before His Honor Mr. Justice Dowling and a Special Jury.

Goodwin v. Lamb and Parbury. -  This was an action brought by the Plaintiff a Carman, against the Defendant, respectable Merchants of Sydney, to recover a compensation in damages for injuries sustained by him in his trade and business as a common Carter, from their having sought to aggrieve and impoverish him by soliciting the Merchants and other persons amongst whom his business lay, not to employ the carts of the plaintiff, making certain malicious representations, in order to prevent the said Merchants from so employing him; in consequence of which his trade and business, from which up to that time he had realised considerable profits, fell off, to his great injury and damage.  The declaration contained two counts, the first charging the parties with a conspiracy, the second stating the act in general terms; for the plaintiff Mr. Keith, Attorney, and Mr. S. Stephen, Barrister; for the defendants. Messrs. Norton and Wentworth.

Mr. Sydney Stephen for the plaintiff opened the case to the Jury.  The learned gentleman in putting the matter before them, stated that the plaintiff in his capacity of common carter, had long been in the practice of carrying goods from the stores of one merchant disposing of them, to those of another purchasing the same; the purchaser usually paid the cart hire; in this manner the defendant became indebted to the plaintiff in the sum of £22 10s. 2d., for which amount he plaintiff, rendered his bill, which was disputed as being too high; plaintiff insisted on the accuracy of his account and persisted in his demand, which generated a feeling in the breast of the defendants, of a determination to do him all the injury in his power.  How far he had succeeded in the accomplishment of that object he would be able to shew them; by the evidence which he would adduce, they would form their opinion as to whether the measures employed, accorded with the character of the defendant, as a Magistrate of the colony, and a gentleman of education moving in that sphere of society which the defendant occupied; whether it was consistent with justice or humanity to adopt a course of proceeding having for its object the ruin of the plaintiff.  He need not tell them there were various ways of inflicting a mortal injury to on man's character for the gratification of a malicious spirit, but it was an essentially material consideration to the safety of the individual attacked, whether that attack were made secretly and in the dark, so as to afford the assasin the means of evading detection, or whether he had the courage to meet his victim openly, thereby putting him on his guard against the thrusts of a deadly weapon.  The Jury would feel that the course adopted by the defendant was well calculated to go the length of effecting the total ruin of the plaintiff, by breaking up and destroying the means he had of acquiring a livelihood; but fortunately for him the high respectability of the parties applied to by the defendant, and their high sense of justice, would not receive the impression to the prejudice of the plaintiff, to the extent required, but it affected him in the various transactions which took place between them and the defendant, though not generally.  There could be no doubt that the defendants on their parts had done all that their malignity could devise; they had gone round to the  several merchants whom he would put into the box, and who notwithstanding their intimacy with the defendant would state that which was the truth, and had addressed them in such words as these -``Gentlemen, you would greatly oblige me by not employed Andrew Goodwin in future, as he is a great scoundrel and unworthy of being trusted."  On the following day plaintiff was surprised to find his usual employment was withheld; it was in vain he endeavoured to find out the cause; is friends and his neighbours naturally concluded, that the man who after enjoying for a long series of years, the unlimited confidence of the merchants of the town, was so abruptly deprived of his usual employment must have guilty of no ordinary misconduct; indeed nothing less than a breach of integrity could have led to such a result; these were the natural reasonings of parties from whom the circumstances could not be concealed; if these facts were proved, and he felt assured that he was in a capacity to prove them, what measure of damages was he reasonably entitled to to compensate him for the injuries he had sustained; if he had been able to discover some gentlemen with whom attempts had been made to injure him, how many more might there be who did not appear.  There could be no palliation of such conduct; if the plaintiff had attempted to impose upon him by a demand which was unjust, why did he not seek the interference of a Court of Justice, instead of employing the secret, covert means pointed out, for the arrangement of their disputes.  Having now laid the matter before them, he would proceed to call evidence.

William Dawes and C.H. Ebden, Esqs., were called upon, but did not appear.

Mr. John Lord was then examined - I am a merchant of this town; I know the plaintiff, he is a carter; I have known him since my arrival in the Colony to ply with horses and drays for hire, in conveying goods from place to place; our house has been in the habit of employing him, and do to this day; I know Messrs. Lamb and Parbury; I remember having a conversation with Mr. Parbury, about twelve months ago, relative to the plaintiff; the defendants had purchased a quantity of iron from us, and, after the close of the sale, it was made a verbal condition that the plaintiff should not cart it; the reason stated was, that he had been extremely insolent to Mr. Lamb, who did not again wish to see him on the premises; that condition was not part of the bargain for the goods, we paid for the cartage; the plaintiff has several drays, and employs a man to go with each dray, himself going on horseback to see that the loads are delivered.

Cross-examined - I repeat, the condition as to Goodwin not carting the iron, was a verbal stipulation independent of the sale, as Goodwin had misconducted himself, and should not again enter the premises; the parties selling generally deliver the goods; it would make no difference whether we paid the cartage or the purchasers, as in the event of its being paid for by defendants we would have made a difference in the price; the expense of cartage would eventually fall on the purchaser; if carted by defendants, we of course made the same allowance to them as we would do to any common carter; we would not have been very particular on the occasion in question, as the iron was not a saleable size.

Mr. T. U. Ryder - I am a merchant; I know the plaintiff Goodwin, he has always been employed by us in his capacity as a carter; I know Messrs. Lamb and Parbury, in February last, relative to the plaintiff; defendants had made a purchase of us at that time, and Mr. Parbury requested me not to employ Goodwin to deliver the goods; I said it was a matter of no consequence who was employed, if they would prove carts I would pay them at the same rate; according to the general usages of business, the seller is bound to deliver any goods disposed of.

Cross-examined - Mr. Parbury stated, as a reason for making the request, that Goodwin had been extremely abusive, so much so, that Mr. Lamb had made a determination never to allow him to go on his premises again, this request was made repeatedly; on all occasions we have been in the habit of employing the common carters, unless there were a stipulation to the contrary.

Mr. John Campbell - I am a merchant; I know the plaintiff, he is a carter; and is employed by us in that capacity up to this day; I know Messrs. Lamb and Parbury; I remember having had a conversation with Mr. Parbury, about thirteen months ago, respecting the plaintiff; on that occasion we had sold the defendants a quantity of iron, and, after the first dray load had been despatched to their stores by the dray of the plaintiff, Mr. Parbury called on us to say, that they could not receive any more of the iron if we continued to send it by Goodwin's drays; in consequence of which, I took the job out of Goodwin's hands and employed some other person; I had to pay the cartage; had not such communication been made I would have employed Goodwin; since that time I have discontinued to employ Goodwin in any dealings with Messrs. Lamb & Co., but with that exception he is still employed by us up to the present time.

Cross-examined - Mr. Parbury informed me, on that occasion, that the reason of his being objected to was, that he had behaved in an insolent manner to Mr. Lamb, who would not suffer him to appear again on his premises; if Mr. Lamb wished to cart the goods himself, we would of course have allowed the cartage in the account.

George Gilbert - I am a carter in the employ of Andrew Goodwin, in whose service I have been five or six years; Mr. Goodwin has five or six drays, which are usually employed in carting the cargoes discharged from the vessels at the wharf, and in various ways about the town; he once had a good run of business; I remember him having a disturbance with Mr. Lamb about twelve months ago, since which he has not been employed to the same extent as before; I know Mr. Lamb refused goods that went by his drays, and also, that several other merchants refused to employ him on that account.

Mr. Wentworth - I submit to your Honor that there must be a nonsuit in this case, for this reason; the action is brought by a man calling himself a common carter - a carter for hire.  What proof has been adduced to establish the character with which the plaintiff has invested himself, so as to enable him to sustain an action for injuries done to him in that capacity?  Before he could have instituted an action of debt against any party for work and labour performed as a carter, he must have gone into Court legally clothed with the character he had assumed, by taking out a license as directed by the Act; by the 54th clause of the Police Act, every person employing horses and carts, as a common carter, without having previously taken out a license, was liable to a penalty; here was a prohibition and penalty under which the plaintiff had illegally assumed the character of a common carter, for no proof was before the Court that he had been a common carter within the meaning of the Act.  The learned Gentleman quoted a variety of authorities, to shew that contracts made by parties acting under a prohibition were legally void; if then a party stood in a situation which prevented him from recovering on a contract, which was fully established by the cases quoted, it was clear, that in order to qualify himself to support the character assumed in the declaration, he must submit proof of his being a common carter acting under a licence; no such proof had been put in; that was the first ground on which he would contend that the plaintiff should be nonsuited.  Secondly, there had been no evidence adduced to shew that the parties had acted in concert; there was no proof of partnership - no proof offered which could make them jointly liable; the evidence adduced went to shew that the acts complained of were the acts of Mr. Parbury solely; if, therefore, the plaintiff had a right of action at all, it was clear that it was against one or either of the parties severally, and not jointly.  Thirdly, the declaration set forth that defendants had gone about the town soliciting the merchants not to employ the plaintiff, whereby he was damnified; here was a general allegation; how was it made out by evidence?  The evidence went the length of shewing, not that the defendants were solicitous that plaintiff should not be employed at all, but stipulated that he should not be employed in their particular transactions; the general allegations set out in the plaintiff's declaration are sought to be supported by evidence of particular acts; he would submit, therefore, that the variance pointed out was fatal, and the case must fail.  Fourthly, it appeared on the face of the declaration that plaintiff had been deprived of great gains by the conduct of the defendants; there had been no evidence of special damage, which should have been shewn so as to support that allegation; the declaration was defective, inasmuch as the names of the parties which the defendants were charged with having prejudiced against plaintiff should have appeared thereon, so as to afford the defendants an opportunity of knowing the case which they were called on to defend, without which they could not be in a capacity to meet the charge.  In support of this latter ground of objection, the learned Gentleman cited a case something similar in its nature, which went to prove that the highest authorities on the books recognized the principle on which the objection was grounded.  It was the case of a clergyman, who was popular as a preacher, and for a considerable time realised considerable profits from the crowded congregations who attended his sermons; but, at length, he was assailed by various slanders, the effect of which was that his chapel was deserted, and his means of livelihood destroyed; having discovered the author of these calumnies, an action was commenced accordingly, to recover a compensation in damages for the injuries inflicted on him by the slanders and misrepresentations that had been used; in that case it was agreed, that as plaintiff had omitted to shew on the face of the declaration, the names of the parties who had left his chapel, under the influence of the slanders set forth, and thereby setting out the special damage sustained, so as to enable the defendants to meet the case against them, that the plaintiff should be non-suited.  The Lord Chief Justice, however ruled, that as the congregation, through whose non-attendance at plaintiff's chapel he had sustained special damages, was a fluctuating body, and it would be a matter of great difficulty, if not of absolute impossibility, to arrive at a knowledge of the parties, the objection was invalid; he, Mr. Wentworth, submitted therefore, that in cases of this kind the practice of law was fully recognized, that there must be a statement on record of the particular parties in whom the special damage lies, and he would submit, therefore, that on this ground also the plaintiff should be non-suited.

His Honor the learned Judge. - I will not stop the case Mr. Wentworth; I will make a note of your objections, which may be made matter of subsequent consideration in arrest of judgement, but I can inform you how I will put the case to the jury; I will tell the jury, that the defendants had a right to employ who they thought proper in the removal of their goods; if they are of opinion, that it was not the intention of the defendants to prejudice the plaintiff in his business beyond their own immediate transactions, and the plaintiff had sustained no special damage, except in such cases, they are bound to find for the defendants.

Mr. Wentworth - Gentlemen, His Honor has taken precisely the same view of this case as I have done; it would be ridiculous to assume that the defendants had not the right of exercising a discretion, as to who they would suffer to be employed on their premises; the defendant certainly objected to the  plaintiff appearing on his premises - he had a right to do so; the abuse and insolence he had received at his hands, was quite sufficient to suggest the necessity of the Act; the defendant, gentlemen, is the head of a family, and to be subjected still further to the insults and degrading epithets of ``shuffling scoundrel," in the presence of his lady and children, was a matter of serious consideration - conduct, which if submitted to by risking a repetition, had a tendency to degrade him in the eyes of his family, and lessen that respect for him which it was essential they should feel; it became him as a duty, therefore, to adopt the steps he had taken to relieve himself and his family from so serious an annoyance.  The transactions out of which it arose, had been partially laid before them by the other side; he felt it necessary to again bring the simple facts of the case before them.  The defendant, Mr. Lamb, had employed the plaintiff for a considerable time as a Carter, and at length was furnished with an account which he found to be exorbitant, and insisted on its reduction to a reasonable amount, when it would be paid; plaintiff, on is part, insisted on the payment of the account as rendered, objecting to admit the least abatement.  In the course of these attempts at what defendant had just reason to look upon as an overcharge, he went to the magistrates, and submitted the bill for their consideration, under the assurance that the matter fell within their jurisdiction; but it appeared, on investigation, that plaintiff had not taken out a licence to exercise the business of a Carter, and the magistrates of course could not deal with him in that capacity.  In a few days subsequently, defendant received a letter from Mr. Keith, requesting payment of plaintiff's bill, when he went to Mr. Norton for the purpose of arranging the matter; a negociation [sic] was instituted, the result of which was, that plaintiff ultimately accepted of what defendant, Mr. Lamb, had previously offered him, and what he had always expressed his willingness to pay; it was in the course of this negociation that plaintiff made use of the offensive language in calling defendant ``a damned shuffling scoundrel," and thereupon defendant resolved not to employ him, in any future transactions between himself and other merchants, by which arrangement he would relieve himself of his presence and further insult; but that exclusion was meant to apply only to the private residence of the defendant; from his stores and warehouse in a distant part of the town, no attempt had ever been made to interfere with him on any transaction in which he had had occasion to take goods there; of the total absence of a malicious feeling on the part of the defendant, and a desire to do him all the injury in his power, as has been stated on the other side, no proof could be more satisfactory than that circumstance; in preventing plaintiff from intruding on his present residence, he had effected all he desired to accomplish; his stores in Darling Harbour, was beyond the reach of his family, and although he might with equal justice and reason have prohibited his being employed there also, after the extreme misconduct plaintiff had exhibited towards him, he forbore to interfere with him; that he had a right to reject him it would be absurd to question; you may remember that one of the steam-boats plying between Sydney and Hunter's River, had formerly the reputation of being navigated by an uncivil commander; if I had written to a friend at Maitland, requesting him not to send his wife and family by that vessel, as the master was uncivil, would it not be held as extremely ridiculous of the master, on hearing of such a proceeding, to institute an action for damages against him, for injuries sustained in his business; yet this case is an exact parallel; it is clear that the learned Counsel on the other side, mistakes the relative position of the parties with regard to the transaction in question; Mr. Lamb in these particular instances, paid the cart hire and had an undoubted right to employ what carter he thought proper; in putting these facts before you Gentlemen, I feel it unnecessary to call any evidence, resting satisfied that your sense of justice io this case, must be on the side of my client.

Mr. S. Stephen - Gentlemen, as Mr. Wentworth offers no evidence as to the bills of which he has given you a statement, I must submit that you discharge all the matters relative thereto from your consideration.

Mr. Wentworth - I have evidence here, and to satisfy you, it shall now be produced.

Mr. Matthew Findlay - I am now an Assistant in the King's School, Parramatta; I was a Clerk in the Counting-house of the defendants about twelve months ago; I remember a bill being presented by the plaintiff, which Mr. Lamb objected to pay as being unreasonable; the bill was £22 10s. 2d., and the items to which Mr. Lamb objected, reduced it to £18 7s. 9d.; I was instructed to tender the balance, which plaintiff refused, saying he would not be shuffled out of his money in that way; he called Mr. Lamb a shuffler repeatedly, for not giving him what he had charged in the account; he subsequently accepted of the sum tendered by Mr. Lamb, in a settlement of the account; it comes to my knowledge that there were several items struck off by Mr. Lamb as blunders; these items were included in the account, for not paying which, plaintiff called Mr. Lamb a shuffling scoundrel; these items amounted to upwards of £3.

Cross-examined - Plaintiff was extremely insolent, and Mr. Lamb then said, that he would never again allow him to go on his premises under any pretence whatever; he would take care that he should not cart any more goods for him.

Mr. Henry Arthur Linden Homer. - I was in Mr. Lamb's employ about a year ago; I remember a dispute which took place between the plaintiff and Mr. Lamb, respecting an account rendered by him for cartage; I was working in the cellar at the time; I heard plaintiff call Mr. Lamb a shuffling scoundrel; I am not certain that he said anything else; Mr. Lamb was standing on the steps of his house at the time, and must certainly have heard it; Mr. Lamb's assigned servant was employed in the cellar and also heard it; the words might have been heard in the dwelling house, but I think they were not spoken loud enough to be heard in the back part of the premises; the cellar where I and the assigned servant were at work is situated immediately under the dwelling house; if Mrs. Lamb had been at home at the time, she must have heard the offensive expression used by plaintiff towards Mr. Lamb.

This was the evidence for the defence.

Mr. S. Stephen - Gentlemen of the Jury, you have heard the case proved by the evidence of several respectable merchants; you have also heard the line of defence which has been set up in justification of defendant's conduct; they gentlemen thought fit to interfere with the employment of the plaintiff, in order to inflict a punishment on him for some imaginary insult; in what degree soever they were justified in refusing him their employment, you gentlemen will shew them that they had no right to go to other persons, and say ``you must not employ that man in your transactions with us, we will not suffer him to go on our premises," they had no right to dictate to them who they should, or should not employ; what limit could be assigned to the effect which such solicitations were calculated to have, from a person moving in the sphere which Mr. Lamb occupied in society, if addressed to persons in humbler stations of life, than the highly respectable merchants of Sydney; it was adopting a course, better calculated to effect the total ruin of the plaintiff, than anything that could have been devised; you have had evidence of the fact that he had suffered materially in his business thereby, and he now comes before you to claim at your hands such damages as may meet the justice of his case.

His Honor Mr. Justice Dowling. - Gentlemen of the Jury, this is an action brought by plaintiff, to recover a compensation in damages, for injuries sustained by him in his business as a common carter, by the malicious representations of the defendants, whereby he has suffered loss and damage; the declaration contains two counts, 1st charging the defendants with a conspiracy for the purpose of injuring the plaintiff, the 2nd charging them in a more general way, with having falsely and maliciously represented, that plaintiff was not fit to be trusted as a carter, and soliciting his neighbours not to employ him; in consequence of which representation plaintiff suffered great loss and damage in his business; as to the first count gentlemen, you must discharge it altogether from your consideration; there has been no evidence put before you, to shew a combination or conspiracy by the defendants, to injure the plaintiff as set forth in the declaration.  The second count charges both defendants with a commission of the offence against the plaintiff; the evidence has confined the acts solely to Mr. Parbury, and I am bound to tell you that partners were not liable for torts or wrongs, committed by one or the other individually; although the law held them to be jointly liable in civil contracts.  The case exists solely on the second count, which alleged that the defendant had jointly endeavoured to injure the plaintiff generally in his business as a common carter by soliciting his neighbours not to employ him; applying this allegation to the evidence, how did they find it sustained? the whole force of the evidence which had been adduced, went to shew that the sole object of the defendants was to prevent his carting goods to their premises; that evidence does not go to sustain the general averment; if the defendant therefore did not seek to injure the plaintiff in his businest generally as a common carter, but only went the length of restraining him from taking goods for themselves, for which they had to pay, the plaintiff could not sustain the action; the evidence goes to shew that it was a matter of indifference, whether the charges of cart hire were paid in the first instance of not by the defendants, as it would finally fall on them; if paid by them, there would be an abatement made in the price of the goods; there could be no question then, as to their right to exercise their discretion as to who they should employ; if you are satisfied Gentlemen that their sole object was to prevent the plaintiff being employed in transactions in which they were parties, and not with a view to injure him in his general business, the plaintiff is not entitled to your verdict; if on the contrary, you are of opinion that their object was to injure him generally, which I will tell you, there is no evidence to support, you will say so by your verdict.  The Jury retired a few minutes and returned a verdict for the defendants.

At the conclusion of the proceedings, Mr. Wentworth applied to His Honor to certify, that the case was a proper case for a Special Jury.  His Honor answered in the affirmative, when Mr. S. Stephen rose and said, that the case ought in justice to have been tried by a Common Jury.  His Honor's reply to this observation we did not catch distinctly, but we believe that it was to the effect, that the case ought not to have been seen in Court at all.[ 2]

 

Notes

[1 ] See also Australian, 12 June 1835; Sydney Gazette, 9 June 1835.

[2 ] This was not recorded by the other newspapers.

Published by the Division of Law, Macquarie University