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

Green v Hanson [1835] NSWSupC 84

contract, breach of - sale of goods, non-delivery - damages, expectation - privity - contract, illegality - agency - tobacco - tax

Supreme Court of New South Wales

Dowling J., 15 October 1835

Source: Sydney Herald, 19 October 1835[ 1]

Thursday. - Before Mr. Justice Dowling, and Assessors.

Green v. Hanson. - This was an action brought by the plaintiff, a retail dealer against the defendant, landlord of the ``Rum Puncheon," King's Wharf, for a breach of contract in the sale of a quantity of cigars.  The declaration contained three counts; the first and second averring the payment of a sum of £20. which were however abandoned, as no proof of actual payment had been put in.  The case proceeded on a third count which averred that  a certain promissory note for the sum of £20, had been given as a consideration for a quantity of cigars, on which it was subsequently discovered no duty had been paid, in consequence of which they were seized by the Customs, whereby plaintiff was damnified; being deprived of the profits which would have been derived therefrom, had the articles been of a marketable nature.  The defendant pleaded the general issue.  Mr. Foster, on the part of the plaintiff, briefly stated the case to the Court.  It appeared that a person named Smith, who acts as a broker or general agent, had called on the plaintiff for the purpose of treating with him for the articles in question, and a bargain was finally concluded at the rate of 10s. per box; a promissory note at three months for £20 was given in payment for the cigars, the tobacco being 2s. 6½d. per lb. cash; a few days subsequently to the transaction, a robbery was discovered to have been committed in the Bonded Stores adjoining the premises of the defendant, and a quantity of tobacco taken therefrom; and the circumstance of defendant's having recently sold some having come to the knowledge of the Officers of the Customs, he was waited upon by Mr. Jeffrey, to whom he at once acknowledged having disposed of a quantity of tobacco and cigars which had been smuggled, being anxious to avoid the suspicion of being identified with the robbery which had been recently committed in the neighbourhood.  On this admission, the Officers proceeded to the premises of the plaintiff and made a seizure of the articles, which defendant had so sold to the plaintiff.  It was contended, therefore, on the part of the plaintiff, that having been induced by defendant through his agent to purchase an unsaleable article, plaintiff was entitled to recover, not only what he had paid, but what he expected to sell it for in the regular course of trade.  The plaintiff was still liable for the bill which was now overdue.  Witnesses were then called.

John Acott Smith. - I am a broker; I know the defendant Hanson; I was employed by him to sell some cigars and tobacco; I know the plaintiff, who is a general dealer; I sold him forty boxes of cigars and ninety-six pounds of tobacco on account of defendant; the price of the cigars was £20, for which I received his bill at three months, which I handed over to the defendant; the price obtained, which was a good price, included the duty.

Cross-examined by Mr. Wentworth. - I believe the duty is 2s. per lb., the same as other tobacco; Mr. Hanson gave these cigars and tobacco to me to sell again; on finding a customer I made him an offer; he asked 11s. per box; I offered him 9s. and he consented to take it; my profit was 1s. per box; I had been to plaintiff and ascertained that he would give 10s.; when I found a purchaser, I offered defendant 9s. which he took; he knew that I sold them to Green; the usual commission on a broker is under £50, five per cent, above that sum 2½ per cent., and large amounts 1 per cent.; a conversation took place between the plaintiff and myself as to their being smuggled; he said perhaps they were smuggled, but he did not care if they were; I never sold him anything before but five bags of sugar; Chinsurah cigars are not considered the best article of trade.

Re-examined. - I do say that he made the observation about their being smuggled; I never gave a different account; Mr. F. Stephen asked me if I had told they had been smuggled; I told him that I did not know it; I sold them for a respectable man; one would think that he would expect to get them cheaper if he thought they had been smuggled; Mr. Green's son was present on the occasion.

Peter Green. - I am the son of the plaintiff; I am not in partnership with my father; I remember the last witness offering some cigars and tobacco for sale; my father offered 10s. per box for the cigars, to be paid by bill; the tobacco 2s. 6½d. per lb. cash; 10s., was a full price, they were not of the best quality; I was present during the time the negociation was going on, and I never heard anything about smuggling; nor did I know who the party was to whom they belonged; some time afterwards the premises were searched, the cigars were then in the shop; we stated to the Officers that we bought the cigars from a person named Smith; they were suffered to remain for a few days, when one of the Custom House Officers seized them, the duty not having been paid; I saw defendant in the Police Office on the following day, when he informed me that the cigars and tobacco were his; he had bought them from an Officer of a ship, which luckily for him was in the harbour; some charge had been made against defendant relative to the  tobacco, but I did not know the nature of it; I asked him if he had the bill; he at first said he had, when I told him not to put it in circulation as the articles he sold had been seized, and would not be paid when due; he then said the bill was not in his hands, and we would be obliged to pay it; the number of boxes seized were thirty-three; seven boxes having been sold at prices varying from 12s. to 14s. per box; those retailed were fourteen for a shilling.

Mr. Thomas Jeffery. - I am landing-waiter at the Customs; I remember searching the premises of the plaintiff in June last, I seized thirty-three boxes, they were what are called Chinsurah's, I took them to the Custom-house; they have never yet been claimed, it is now too late to put in a claim to them; I know Mr. Hanson; he was aware that the seizure had been made; I called upon him in consequence of the seizure, for some explanation relating to the cigars; he said that as a robbery had been committed on the bonded stores, he would not suffer his name to be mixed up with robbers, and had better tell at once how he obtained them; he said he had purchased the cigars from an officer of the ship ``Resource," and the tobacco from some sailors of the ``Lord Amherat;" he went in the boat with me to point out the man, but they were on shore at the time.

Cross-examined. - I think 10s. or 12s. a fair price duty paid.  This was the case for the plaintiff.

Mr. Wentworth contended, on, on the part of the defendant, that it was clear by the evidence adduced, that the defendant had been no party in the transaction with the plaintiff; the articles having been sold by him to Smith, by whom they had been sold to plaintiff; it was evident, therefore, that if the plaintiff had any right of action at all, it should have been against Smith and not the defendant; but it had been shewn that he was cognizant of the cigars having been smuggled, and therefore opposed himself to all risks attending the purchase; it had also been shewn that plaintiff had not been damnified by the transaction, but on the contrary, had disposed of seven boxes of cigars for which he had never paid.  It was contended, therefore, on these grounds that a verdict should be entered for the defendant.  Mr. Foster replied, when His Honor put the case to the Assessors.  It had been contended, on the part of the defendant, that the action had not been properly brought, the defendant being no party to the transaction; but he was of opinion as then advised, that the action had been well brought as against the defendant, inasmuch as he had adopted the act of the agent, Smith, in receiving the note in ratification of the transaction, and had admitted that he had that note in his possession; a material point for their consideration, was, whether they were satisfied that the plaintiff had had a knowledge of their being smuggled at the time of purchase; if they were of that opinion, the plaintiff was not entitled to a verdict, because he had made himself a party to an illegal act, and could not claim the interference of the law against his co-partner for an alleged grievance arising out of his own wrong.  It was to be assumed however, that a party would not engage in a transaction of that nature, without receiving some advantage; yet it had, been shewn that the prices given by the plaintiff, was a fair price which included the duty; although the note in question had not been paid, it did not prevent the plaintiff from bringing his action; he had given a valuable consideration, and was liable hereafter to be proceeded against by the holder of that note; taking these circumstances into consideration it was their province to determine such verdict as the justice of the case demanded.  The Assessors returned a verdict for the plaintiff, damages £18 3s.

 

Notes

[1 ] See also Australian, 20 October 1835; Sydney Gazette, 17 October 1835.

Published by the Division of Law, Macquarie University