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

Woolley v. Bryant [1837] NSWSupC 28

penal bonds - contract, breach of - damages, expectation

Supreme Court of New South Wales

Dowling A.C.J., and Burton and Kinchela JJ, 4 March 1837

Source: Sydney Herald, 6 March 1837[ 1]

Woolley v. Bryant. - This was an action of assumpsit brought to recover the sum of 100l.  The defendant had agreed to supply the plaintiff with a certain quantity of iron by a certain day, or forfeit the sum of £100.  The defendant did not fulfil the agreement, and the present action was brought.  At the trial, the plaintiff did not put in any proof of special damage, but merely proved that the agreement had been broken.  The Attorney-General afterwards obtained a rule to shew cause why a new assessment of damages should not take place.  Mr. Foster contended that the agreement having been broken, the penalty mentioned in the bond was forfeited.  The court decided that the plaintiff should have shewn that he had incurred special damages, and ordered a new assessment of damages.

 

Dowling A.C.J., 5 June 1837

Source: Sydney Herald, 8 June 1837[2 ]

 

Woolley v. Bryant - This was an undefended action for breach of contract; damages laid at £100.

The defendant entered into an agreement to import a certain quantity of iron by a given day, or forfeit £100.  The contract not being fulfilled, an action was brought last term, when a verdict was returned for the full amount of the penalty, but on a motion for a new trial, the Judges, in Banco, decided that the plaintiff must prove the actual damage he had sustained.  Witnesses having been called to prove the prices of iron at different periods, the Assessors returned a verdict for the plaintiff; damages £76 5s,

Counsel for the plaintiff, Mr. Foster; for the defendant, the Attorney-General.

 

Dowling A.C.J., 5 June 1837

Source: Sydney Gazette, 8 June 1837

 

Woolley v. Bryant. - This was an action of breach of contract for the non-delivery of a quantity of iron as per agreement, to recover the amount of £100: this case was brought before the Court last term and a new trial granted.

Thomas Ryder, Esq., examined by Mr. Foster - I am a merchant; twelve months I should consider a reasonable time for a merchant to execute an order; I should consider him bound to transmit them by the first vessel; I consider this agreement binding on both sides; 15 months is the usual time expressed in agreements.

Cross-examined - An order similar to this could be executed in much less time than 2 months; at Liverpool it could be done in a week; I consider that let the goods be what price they may in the market, I consider the agent bound to purchase the goods immediately; the price of iron rose on account of the rail roads and improvements; it rose considerable in this colony, from £12 to £25; it was with within eighteen months; I would undertake that my agent at Liverpool would complete that order in three days; it would defeat the object of the order; if it had arrived within the time specified in the contract, Mr. Woolley was bound to keep it.

Mr. Robert Rogers, examined by Mr. Foster - I am an attesting witness to this agreement; I saw Mr. Bryant sign it.

Cross-examined by the Attorney General - This is the only argument I have seen; I believe Mr. Woolley gave Mr. Bryant one, but I did not see it given.

Mr. Iredale examined - I have been in the iron business for several years in this Colony; in December 1835, Iron was £7 15s., in in October £6 10s., in Feb. £8 5s.; Sweedish iron could have been sold her in Dec. 1836 and January 1837, for £30 per ton; it could be purchased in London in December 1835, for £13m which would have realized a profit of £17 per ton.

Cross-examined by the Attorney General - I consider there would be no difficulty in getting this order executed; allowing 18 months I think an agent would exercise his own judgment.  My instruction to my agent is to purchase immediately if iron is on the rise, if falling, to wait the result of the market for a short time; I have had iron lying at the Docks for two and three months; the average time is about three months, it will not be above a month if the vessel has her cargo ready; the invoice ought to be dated when the iron is bought; the general time for the invoice to be dated is the day of purchase.  In December last we sold Sweedish iron at £30 per ton; the price of Sweedish and English iron has been stationary from June to August.

Re-examined by Mr. Foster - The Thomas Harrison sailed in June 1835, she made a good passage; I think she arrived about October; if my agent had such an order I should have expected it to be executed the next day; I consider this a very bad engagement for any merchant; it would not pay him; I have men supplying Messrs. Woolley and Co. with iron at £30 per ton.

Mr. Rogers, recalled - The Thomas Harrisson sailed within 3 days after the agreement; I entered the letter in the letter book myself.

Verdict for plaintiff, damages £76 5s.

Counsel for plaintiff, Mr. Foster; for the defence, the Attorney General.

 

Notes

[ 1] See also Sydney Gazette, 7 March 1837.  For earlier proceedings, see Sydney Gazette, 21 February 1837; Dowling, Proceedings of the Supreme Court, Vol. 133, State Records of New South Wales, 2/3317, p. 14.

[2 ] See also Australian, 9 June 1837; Dowling, Proceedings of the Supreme Court, Vol. 135, State Records of New South Wales, 2/3319, p. 162.

Published by the Division of Law, Macquarie University