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

Stephen v Lyons [1835] NSWSupC 54

Supreme Court of New South Wales

Dowling J., 6 July 1835

Source: Sydney Herald, 13 July 1835[ 1]

Monday, July 6. - Before Mr. Justice Dowling and Messrs. Foster and Kinghorne, Assessors.

Stephen v. Lyons. - This was an action on the case brought by the plaintiff against the defendant, an auctioneer of Sydney, to recover a compensation in damages for having negligently permitted certain property entrusted to him for public sale, to be sold considerably under its value.  The damages were laid at £200.  The defendant pleaded the general issue, not guilty.

It appeared that the plaintiff who was on intimate terms with the defendant, had applied to him for a loan of £150, who readily gave him his promissory note for that sum, at six months, and bearing no interest.  Plaintiff executed a bill of sale to defendant of certain property, thereby authorising him to dispose of the same by auction, in order to liquidate the debt out of the proceeds, should the said promissory note not be retired in due time.  Plaintiff subsequently removed to Hunter's River, where he resided when this note became due; but not being prepared to meet it, he addressed a communication to the defendant to that effect, and also requesting the defendant to forbear selling the property placed in his hands, for a fortnight longer, in order to prevent any sacrifice of the property, and to afford him an opportunity of effecting an arrangement for the payment of defendant's claim.  Defendant complied with the proposal, and retired the bill himself.  Several weeks passed and defendant not hearing from the plaintiff, took several occasions to call on his (plaintiff's) relatives in Sydney, evincing an anxiety to meet the convenience of the plaintiff, and expressing his readiness to take the acceptance either of his brother, Mr. Francis Stephen, or of Mr. Dutton, his son-in-law.  Not succeeding in bringing plaintiff or his relatives to any arrangement for the settlement of the claim, defendant advertised the property for sale, and it was sold accordingly.

The principal witness on which the plaintiff rested his case, was a clerk named Banks, in the employ of the defendant at the time of the sale; but he having left the Colony, his evidence was taken de bene esse, which was now read to the Court; he stated that he was in November last a clerk to defendant; that he heard defendant say to plaintiff that he thought the things would realize £400 or £500, and that plaintiff ordered catalogues to be printed; that Dr. Hosking and Mr. Black subsequently called for catalogues, but witness informed them that none would be printed; that there were only ten persons present upstairs; the sale lasted above three hours; that he told Mr. Elder, at the time he thought it scandalous the manner in which the things were sacrificed; two ornamental tables were bought by Mr. Lyons for 16s.; that he was present at a conversation between Mr. C. H. Chambers and defendant about a piano; defendant said he was instructed to take one hundred guineas for it, Mr. Chambers asked if he did not think £80 enough.

Mr. Francis Stephen, examined. - I remember the day on which the sale of plaintiff's property took place; on the day previous thereto, defendant requested me to attend the sale, which I promised to do, but was prevented by other business; I asked defendant when the sale would take place, that I might attend to affix prices, and to buy some articles which I wanted; he told me he had been requested to print catalogues, and that he would do so and send me one, as also a list of the articles to Mr. Row, the printer, for that purpose.  I subsequently made enquiries of Mr. Row, respecting the catalogues, but he informed me that he had not received any instructions respecting them, and it was his opinion that the sale would not take place; as the sale was to take place on the following morning, I felt surprised that there were no catalogues, and expressed myself so to defendant, who said he thought they were useless as the sale had been advertised.  Defendant seemed anxious that I should attend the sale in order to prevent any sacrifice, and I made an appointment to attend, but being a witness in a case before the Court that day, I could not go.  Defendant came to the Court in his gig and urged me to go with him, which I did, and looked at some articles, giving instructions to defendant and his clerk, to buy certain articles on which I fixed prices, and to purchase others at what they would fetch; I told defendant I did not wish the sale to go on that day, as I did not think they would sell to advantage; defendant was of a different opinion, as he thought it likely there would be a good attendance; he thought that postponing the sale would be detrimental to the proprietor: I told him he was the best judge, but hoped he would not allow the article to be sacrificed; I recollect a piano forte which was among the articles for sale; I should think that in this Colony it was worth about £60; I would have given fifty guineas for it; it was an article I did not like to put a value on, as it might go beyond my means; I remember my brother's library, I am acquainted with the value of that kind of books, and should not scruple to give £70 or £80 for them; books fetch different prices under different circumstances, those were in very good condition; the tables were not in good nor in bad condition; they had been in use some years; (two painted tables were here produced,) I have been in the habit of seeing them for the last ten years; they are not in as good order as when I last saw them; they seem to have been affected by damp; I know the dessert set which was sold in the sale room at 41s., it consisted for forty one pieces; they wee worth a great deal more than five guineas, and I would not have allowed them to go at that price had I been present; the tables are in good repair, they were worth four or five guineas a pair, but were sold at 16s., the rosewood alone was worth more.

Cross-examined. - I take the Australian Newspaper, and have done so since its establishment; I saw the advertisement on the day of sale, or the day following; I did not know whose property it was; it is not my practice to look over the advertisements; I am not aware that defendant ever wrote to Mr. Sydney Stephen, to enable him to make out Catalogues before the day of sale; my brother was not in town four or five days previous to the sale, and I believe not until after the sale; the articles which I directed defendant to purchase for me were bought; I did not fix a price on any that were not bought for me; I fixed a price on a side-board, but do not recollect the amount.  I bought a service inferior to the dessert service then sold, at auction for five guineas, which I had been told I had bought under value; I have known books fetch more than their value, and less; I have a high opinion of the defendant's integrity; I have no doubt he would have been glad, had my brother paid the money advanced; I remember his saying to me if I would give him my bill or a negotiable bill, he would take it, but cannot say for what time, I think he said he would take Mr. Dutton's, and he made this offer before the goods were in his possession for sale; I cannot state of my own knowledge, but it is my firm impression that defendant advanced this £150 to my brother solely for the purpose of doing him a kindness, and not with the view of reaping any benefit therefrom; I was in the sale room at half-past eleven o'Clock; there seemed to be but a few persons then present to attend the sale; if I had purchased the goods, I would have paid defendant's debt; I know defendant inspected and treated as to the goods, at my brother's residence, but I am not acquainted with the terms of the bill of sale.

Re-examined. - It is usual to publish Catalogues, and it is beneficial to the proprietor; in such cases, ladies would be more likely to know of such sales, and they are frequently the chief purchasers of such property; at this sale there were no ladies, and few of what you may call gentlemen; (dessert service produced) this is the service which belonged to my brother, the plaintiff.

By an Assessor. - I never communicated to defendant that I would give fifty guineas for the piano.

Colonel Wilson. - I was at the sale in question, (dessert service again introduced,) each of the articles in this service is a piece; I think there were a dozen plates and sixteen or eighteen dishes; I purchased them for 41s., the set was put up in a lump; I do not know the value of them in London, but I thought them cheap; I have been told by plaintiff that they cost thirty guineas.

Cross examined. - I don't know whether the pattern is new or old, for I am a bad judge of these things, but I consider them cheap, and thought at the time they were worth £5.  I understood from defendant he could not get two guineas for them, and he said he intended to keep such articles for Mr. Stephen, as he could not get their value for them; the dessert service was the only thing in my opinion that went cheap; it appeared to me that he did not intend bargains to be had.

Re-examined. - I was there at the fag end of the sale; I went up stairs where there were eight or ten persons; there are few auctions without a sprinkling of the Jews.

Mr. Surgeon Hosking. - I remember seeing this advertisement, (advertisement of sale produced.)  I called for a catalogue, but there was none, and the clerk said there was not sufficient property to render catalogues necessary; had there been, I most likely should have attended, as Mrs. Hosking wished to buy some things, and would have marked them off in the catalogue.

Mr. Sydney Stephen. - As I knew my brother had a number of valuable things, I went to bid for some, but I had but little time to spare being engaged in Court; while I was in the auction room they seemed to me to be going very low; I said so to the clerk, who said he thought so too, and I hinted that the better plan would be to postpone the sale; I spoke of it to defendant who said they were fetching fair prices.  I was there about ten minutes, and there were about eight or ten persons present; there seemed to be only one bona fide purchaser (Mr. Levien).  I saw Mr. Paul there, who seemed to be there to sell things of his own.

Cross-examined - I do not remember defendant saying there was no occasion for catalogues.

Re-examined. - I am no judge of the value of the dessert service; I am acquainted with the library; it was one for a drawing room, being well bound, some few, elegantly, and likely to fetch a good price; I cannot form any idea of their value one way or the other; I should say they were worth £150 at least, many of the books were worth 18s. a volume; I remember my father's library being sold; I don't think they brought such prices, but there were not in such good condition as those of my brother, they had been much tossed about backwards and forwards to the West Indies, and to this Country, there was a considerable number of novels and light works of that nature which are not likely to bring high prices; I remember the piano, it was left in my house when my brother went to England; my children were not allowed to touch it and seldom went into the room where it was; my eldest daughter is now ten years old, she had not began to play then, but has commenced since, and I bought a piano for her about two years ago; I don't recollect any conversation about a catalogue, but I told the defendant he had better not mention the name of the proprietor; I bought a sugar basin at the sale for eight shillings; this article I bought for my brother while I was in Bristol for eighteen shillings; I knew the piano since 1819; it was then nearly new.

Mr. Charles Christian Dutton. - I offered Mr. Stephen for one of the book cases £70, I did not attend the sale.

Cross examined. - I knew the circumstances under which Mr. Lyons sold the property, but not when I offered the £70.

By an assessor. - I was constantly in the habit of seeing the books, but I did not see the advertisement; defendant stated that if I would give my bill for the amount due, he would give up the bill of sale; I did not communicate this offer to Mr. Stephen; defendant offered to take my bill at three not six months; the binding of the books in England would have cost at least three shillings per volume: I saw the paintings on the tables five or six months ago, they were not then in their present state, they were elegant paintings though not worth a shilling now.

William Barns - I saw the painted tables now produced, at the defendant's sale room; they then looked well and fresh.

Cross-examined - I am something of a Judge of paintings; oil paintings on canvass look very well when varnished over, but I cannot tell whether these are in water colors or in oil.

John Benham - I am a pianoforte maker, and have repaired the piano in question two or three months ago; it was a very good one worth £68; an old instrument that stands the climate, is as valuable as a new one, because a new one cannot be depended upon.

Cross-examined. - I have had some pianos for sale; Mr. Minton sold one for me, and I sold one myself, for which I got £60 easily, I expected £85; the one which belonged to Mr. Stephen is as good as new.

This was the case for the plaintiff.

On behalf of the defendant, the Solicitor General addressed the Court - the learned gentleman observed, that several witnesses had been put into the box for the purpose of shewing that many of the articles sold, were disposed of at a rate considerably below their value; in fact, that they had been sacrificed through the culpable negligence of the defendant, and that many persons who would have been purchasers, had not attended the sale, in consequence of his negligence in not causing catalogues to be printed and circulated; but none of the witnesses so put forward had succeeded in proving that the sale had been conducted in any other than the usual manner, but tended to shew that the defendant did use his best exertions in order to obtain the best biddings he could; it was clear that by the terms of the bill of sale; the defendant was empowered to sell the goods within a certain time to secure the advance made upon them, and that, in point of fact, the property was vested solely in him by virtue of the said bill of sale; it was clear had they been destroyed in the interim, he, the defendant must have been at the loss.  It had been shewn in the evidence for the plaintiff that defendant did not wish to retain the goods as a security; the second count in the declaration set forth that defendant was an auctioneer, but nothing on the face of the bill of sale, shewed that he had received the goods in that capacity, and having had them on mortgage for a valuable consideration, he might have employed another auctioneer to sell them, whose duty it would have been to sell them to the highest bidder; the learned gentleman cited a case where it had been held that an auctioneer is bound to sell goods at the highest bidding where no price had been fixed; and contended on that ground, that plaintiff should be nonsuited.

His Honor thought it best under all the circumstances of the case, that it should go to the Assessors.

Solicitor General - I trust your Honor will make a note of my objection.

His Honor - Certainly, I have done so, indeed I go along with you, but am unwilling to stop the case at this stage.

Mr. C. H. Chambers - I saw the piano-forte at Mr. Lyons, and asked him the price; he said it would be cheap at £100; I told him I thought it might be worth about £30; I am a judge of piano-fortes; I am not a regular performer, I am a very irregular one.  (A laugh.)

Mr. John Purke's - I am a clerk in Mr. Lyons, and I made out the catalogue, which was completed except the plate, of which we had no particulars; Mr. Sydney Stephen was applied to for particulars, Mr. John Stephen being out of the way at the time; this is the reason it was not printed, the sale was advertised fourteen days before the 27th February; there were thirty five purchasers; the conditions of the sale were under £30 cash, above that amount approved bills at 3 months.

Cross-examined - I do not know that the chest of plate at Mr. Lyons belonged to Mr. William Henry Moore, (manuscript of the catalogue produced) I had a copy of this; Mr. Stephen sent plated goods, and I think there were some silver; I did not look at the goods; I never saw the bill.

Samuel Hill - I took a note to Sydney Stephen for a catalogue of plate which I gave to Mr. O'Reilly's clerk, when I called again, Mr. Stephen was not at home.

Mr. John Paul - I am an auctioneer, and remember attending this sale as a purchaser; I bought a piano-forte at £33; it was no bargain; I should not have bid more; there was a numerous and respectable attendance; I consider defendant did his duty as an auctioneer; books sometimes sell very badly.

Cross-examined - I can call no article to memory but the piano; it was a little harsh when I bought it, and I had it repaired, for which I paid fifty shillings; it never was a good one; and I would be very glad to get £45 for it.

Mr. Ellard - I have been called by both parties to see this piano; I consider its value to be about £35; I have tuned it for the last two years; I never stated it to be worth £80.

Mr. John Gurner - I attended the sale as a bidder; I am in the habit of bidding for books, and I consider the books in question were fairly submitted for sale.  I bid for a few on that ocaasion; I did not know Banks well enough to say I would not believe him on his oath.

Mr. John Black, Cashier of the Bank of New South Wales examined - I know nothing of the sale in question; I never asked for a catalogue; I have not attended a sale for some years.

Robert Elder - I am clerk to the defendant; the goods were properly submitted at the sale; the residue of the goods were returned to Mr. Stephen's order; I don't recollect defendant stating the value of the dessert, but I consider their value to be about a shilling each; I don't know whether they are China or not; defendant put up the service three times; the first time he bought it in for £1 10s; the second time for £1 17s.; and the third time it was bought by Colonel Wilson for £2 1s.; Banks never told me that he thought it was a scandalous shame the manner in which the goods were sold; if he has sworn that he did say so to me, he has sworn false.

Mr. Want - I requested Mr. Rodd and the plaintiff to defer the examination of Banks for a day, as Mr. Unwin had sprained his ancle and was unable to attend, it was refused, and the reason was, that it was understood defendant wished Banks to leave the Country; defendant also was unable to attend, being at a sale.

William Pamington - I recollect Banks leaving the Colony; he owed me some money; defendant sent word to me that Banks was about to leave the Country, and where I might be able to find him, in order to arrest him for my debt; I did so, and obtained payment, Mr. John Stephen paid me.

Mr. Wentworth objected to this evidence as irrelevant.

The Solicitor General observed, that his object in adducing it was to shew that so far from wishing to get Banks out of the country, his client had done his best to detain him.

Mr. Wentworth addressed the Assessors, in calling upon whom to award to the plaintiff compensation for the loss sustained by the gross negligence of the defendant, he animadverted in strong terms on his conduct, in giving information to Pamington of the intended departure of Banks from the Colony; it was evident that such step had been taken in order to have the advantage of any descrepancy which might appear between his evidence as taken then, and any evidence which he might be subsequently called upon to give in Court had he remained.  After a powerful address of considerable length, he concluded by observing that he could not but regret that a case like the present had come into Court at all, considering the high character of the defendant as an auctioneer; but it was clear, that in this instance plaintiff had been injured and subjected to a sacrifice of his property, by a most unaccountable and gross negligence on the part of the defendant, which entitled him to a verdict at their hands.

His Honor, in putting the case to the Assessors, observed that a great deal had been adduced in evidence and otherwise that had been, to say the least of it, immaterial to the issue; the question for their consideration was, not as to the prices which the articles had fetched, but whether, in conducting the sale thereof, defendant, in his capacity as an auctioneer, had been guilty of negligence, as averred in the declaration; it was for them to determine, from the testimony adduced before them, whether the defendant, through his negligence, mismanagement, or want of proper diligence, had suffered the property of the plaintiff to be sold below a fair value; and whether the failure to publish catalogues of the several articles, which had been relied on, as evidence of want of diligence on the part of the defendant, had really had the effect of preventing the attendance of purchasers, who would otherwise have attended, to the great injury of the plaintiff.  If they should be of opinion that defendant had not used proper diligence, and that, by an omission of his duty as an auctioneer, he had damnified the plaintiff, it would be for them to determinate to what reasonable amount of damages he was entitled.  If, on the other hand, they were of opinion that he had used reasonable diligence in disposing of the property intrusted to him for sale, although it would appear to have been sold below its value, he would be entitled to their verdict.  The assessors found a verdict for the defendant.

Counsel for the plaintiff, Messrs. Wentworth and Foster; Attorney, Mr. Rodd.  For the defendant, the Solicitor General and Mr. Therry; Attorney Mr. Unwin.

 

Notes

[1 ] See also Sydney Gazette, 9 July 1835.  Its report was preceded by a critical statement about the counsel arguing the case, particularly Wentworth.  Wentworth and Foster acted for the plaintiff (Rodd as solicitor), and the Solicitor General (Plunkett) and Therry for the defendant (Unwin as solicitor).

Published by the Division of Law, Macquarie University