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

Smart v. Dick [1837] NSWSupC 47

auction - sale of goods, warranty of quality - caveat emptor - Court of Requests - costs, legal

Supreme Court of New South Wales

Kinchela J., 15 June 1837

Source: Sydney Herald, 19 June 1837[ 1]

Thursday, June 15, 1837. - Before Mr. Justice Kinchela, and Messrs. R. Johnstone and R. How, Assessors.

Smart v. Dick. - The plaintiff in this case is Mr. Smart, the auctioneer; the defendant, Mr. Dick, the jeweller.  At a sale of goods at the house of  a Mr. Bennett, the defendant's wife bought a mattress, a bed, and a bedstead, for the sum of £22 10s.  The bedstead was described in the catalogue as a four-post mahogany bedstead, with iron rods and dimity curtains complete, and was knocked down for the sum of £10 5s.  The following day the defendant went to take the bedstead down when he found that the two posts at the foot only were mahogany; and upon taking off the curtains the cornice and tent of the bedstead were found to be very much broken, and the thread worn off the screws.  The defendant sent down a portion of the bedstead to Mr. Phillips, cabinet-maker, of George-street, who said that it could not be repaired, on which the defendant refused to take the remainder of the bedstead away, and left the portion he had removed in the garden.  The plaintiff then commenced his action against the defendant for the amount of the articles sold.  These facts having been proved, it was contended by the plaintiff, that as the defendant had an opportunity of inspecting the articles before he purchased them, he was bound by the bargain.  For the defence it was contended, that the curtains being on the bedstead it could not be seen, and that the plaintiff having described it as a bedstead ``complete," and the bedstead purchased not being according to the description, the defendant was not bound to take it.  His Honor put it to the Assessors to say whether the bedstead was equal to the description in the catalogue; for if the auctioneer had made a false report they were bound to return a verdict for the defendant.  Verdict for the defendant.

Counsel for the plaintiff, Mr. Windeyer; for the defendant; Mr. Foster.


Dowling A.C.J., and Burton and Kinchela JJ, 10 July 1837

Source: Sydney Herald, 13 July 1837[2 ]


Monday, July 10. - In Banco - Before the three Judges.

Smart v. Dick - This was an action brought to recover the value of a bedstead and bedding sold by the plaintiff to the defendant, but which the defendant refused to accept because it was not such a bedstead as was described in the catalogue.  At the trial Mr. Justice Kinchela directed the assessors that if they considered the bedstead was not equal to the description in the catalogue, they must find for the defendant, which they did.  The evidence shewed that after the auction the defendant took some men to remove the property, but, upon taking the bedstead down, it was found that some part of the top was damaged, and it was sent to a cabinet maker named Phillips, who said that it could not be repaired under £1 5s. upon which the defendant refused to take it; and the plaintiff refused to let the defendant have the bed without he would take the bedstead.  A new trial was now moved for on the ground that the defendant, having accepted a portion of the bedstead, the property vested in him, and the plaintiff was entitled to a verdict.  A very lengthy argument took place between Messrs. Foster and Windeyer, the result of which was, that the Court decided that a verdict should be entered for £9, being the value of the bedstead; the amount of the bedding he was not entitled to, as he had refused to give it up to the defendant.


Dowling A.C.J. and Burton J., 17 July 1837

Source: Sydney Herald, 20 July 1837


Smart v. Dicks. - This was an action brought to recover the sum of £19 5s., for goods sold at auction, which was resisted on the grounds that the goods were not of the description they were pretended to be; at the trial a verdict was returned for the defendant.  A motion was subsequently made for a new trial, when the judges, to prevent a new trial, ordered a verdict to be entered for the plaintiff for £9, which they considered he ought to have recovered.  Mr. Foster now moved that the plaintiff be debarred from obtaining costs, the verdict as entered being under £10.  Mr. Windeyer shewed cause, contending that this was not a matter that came within the meaning of the Court of Requests Act, as the original sum claimed was more than £10, and that the Court of Requests could not try a case where there was any thing beyond mere computation required, and could not assess damages in a case of this kind.  Mr. Foster replied, that the amount of the verdict was the sum that the Court must look upon as the sum the plaintiff had a right to claim, which he could have recovered in the Court of Requests.

The Court took time to consider the application.


Dowling A.C.J., and Burton and Kinchela JJ, 18 July 1837

Source: Sydney Herald, 20 July 1837


Smart v. Dick. - The Acting Chief Justice said that the Court felt themselves bound by the local ordinance.  The bedstead had been purchased for £10 5s., and the Judge of the Court of Requests had certified that had the case come into his Court he could not have tried it unless the plaintiff had given up five shillings.  The defence set up was that the bedstead was not according to contract, that in fact a fraud had been committed.  The clause in the Act expressly says, that costs shall not be awarded where the debt is recoverable in the the [sic] Court of Requests, and as the £10 5s. could not be recovered in that Court, the application to bar the plaintiff from getting costs from the defendant must be dismissed.



[1 ] See also Sydney Gazette, 17 June 1837; Dowling, Proceedings of the Supreme Court,  Vol. 140, State Records of New South Wales, 2/3325, p. 27.  The Gazette reported the judge as telling the assessors that he ``left it to them to say whether the bedstead, form the evidence adduced to the Court, was, or was not equal to the description in the printed catalogue; for it might be assumed that if the auctioneer had made a false report of the article in question, or if in their own minds they thought so, they would be bound to return a verdict for the defendant."

For a sale of goods case in which there was an express warranty of soundness of a horse that actually had a tumour, see Bell v. Doyle, Sydney Herald, 3 July 1837.

[2 ] See also Australian, 14 July 1837; Sydney Gazette, 11 July 1837.

Published by the Division of Law, Macquarie University