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

Lee v. Green [1838] NSWSupC 17

sale of goods, merchantable quality - sale of goods, rescission

Supreme Court of New South Wales

Burton J., 1 March 1838

Source: Sydney Herald, 5 March, 1838[ 1]

Lee v. Green. - This was an action for goods sold and delivered.  The plaintiff is a broker residing in Bligh-street, and the defendant a publican.

It appeared that in the early part of last year, the plaintiff sold the defendant a cask of cordial gin, which gave him very great satisfaction.  In the month of September he called at the defendant's house, and told him that he had another cask of the same kind of gin, equal, if not superior, which he would sell him at one shilling less than the other was sold at.  Green asked for a sample, Lee said he had none with him, but if he did not like the gin he could send it back.  Two or three days afterwards, the gin was sent to Green's, and received by Mrs Green, by whose order it was put into the cellar.  In a few days afterwards, Mr. Green tapped the gin, which he found to be a very inferior article; in a few days he wrote to Lee sending him a sample of the gin, and telling him it was not according to bargain.  Lee told the man that he had two more casks in the bonded store of which he would send a sample to Mr. Green on the following Monday, and as he did not do so, Green went the gin back to Lee's stores, but the storeman refused to take it, and it was returned to Green's where it now is.  Green refused to pay for the gin, and Lee brought his action for sixty-six gallons at fourteen shillings per gallon.  The delivery of the gin having been proved, Mr. Windeyer took a technical objection which was over-ruled, and then called Charles Wilson, an assigned servant to Mr. Green, who described the first gin as being very superior, and the second as tasting like vitriol.  Mr. Sandwell considered it too bad to be named, and that it had been adulterated but not with water. Mr. M'Dermott said that he considered the gin unsaleable; he recollected that about eight or nine months ago, the plaintiff offered him some gin, which, from the peculiarity of the taste he believed to be the same; he declined buying it, because it was unmerchantable.  His Honor told the Assessors that if they believed the gin was not merchantable, the only question for them to determine was whether it was returned by Green within a reasonable time, if it was, the defendant was entitled to their verdict, but if they considered that Green kept it too long he must pay for it.  Verdict for the defendant.

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

 

Notes

[ 1]See also Sydney Gazette, 6 March 1838.

Published by the Division of Law, Macquarie University