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

Mitchell v. Tooth [1837] NSWSupC 13

sale of goods, fitness for purpose, sale of goods, sale by description - Tooth, the brewer - arbitration, when award binding

Supreme Court of New South Wales

Dowling A.C.J., 16 March 1837

Source: Sydney Herald, 20 March 1837[ 1]

The plaintiff in this case was Mr. Houston Mitchell, of Maitland, and the defendant, Mr. Tooth the brewer.  This was an action of assumpsit, brought to recover the sum of £216 18s. 3d., under the following circumstances:- Mr. Humphreys, of Maitland, was employed by Mr. Tooth to purchase barley for him, and he signed an agreement with the plaintiff for the purchase of a stack of barley, from which he had taken three samples, to be delivered on board the steamer by the plaintiff, at 5s. 7d. per bushel.  When the barley arrived in Sydney, Mr. Tooth found that it was not of a proper description for malting, and refused to take it.  It was then, by the consent of both parties, referred to the arbitration of Messrs. T. Barker and Alexander Clark, who decided that Mr. Tooth must keep the barley; and it was to enforce the award that the present action was brought.  The defence was that the barley was not fit for malting, and therefore was not the description required by Mr. Tooth - Verdict for the plaintiff, damages £216 18s 3d.

Counsel for the plaintiff, Messrs. Foster and Windeyer; for the defendant, the Attorney-General and Mr. Kerr.


[1 ] See also Sydney Gazette, 21 March 1837, which contains more details of the evidence, but less of the law.  Dowling, Proceedings of the Supreme Court, Vol. 130, State Records of New South Wales, 2/3314, p. 112 gives more detail again, including (at p. 156) the judge's criteria for whether the arbitrator's award was binding:

``Honest & fair, & made upon a full hearing.

``Parties voluntarily chuse their own tribunal. -

``If the parties tht [thought] the arbitrators were not making a just decision

``Either might revoke the authority. -

``If a decision fairly came to & both sides fairly heard

``they should be bound"

On the costs, see Sydney Herald, 30 March 1837; Sydney Gazette, 30 March 1837.

Published by the Division of Law, Macquarie University