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

Levien v. Lord [1838] NSWSupC 32

contracts, privity - contracts, proof of - regatta

Supreme Court of New South Wales

Dowling C.J., 12 March 1838

Source: Sydney Gazette, 15 March 1838[ 1]

Before the Chief Justice, and a Common Jury.

Levein v. Lord and others. - This was an action to recover the sum of £25 from Mr. Francis Lord, Mr. E.J. Knapp, and Mr. T. D. Edwards, for a breakfast furnished, at a regatta, in 1836.  The two first defendants pleaded the general issue, Mr. Edwards suffered judgment to go by default.

Mr. Foster opened the pleadings, and M r. Stephen stated the case. -- The defendants acted as stewards of a regatta given in February, 1836, at which, by their desire, Mr. Levein furnished a breakfast.  The stewards obtained leave to erect a tent on the vacant ground near Dawes' Battery, in which the breakfast was laid, and to which the stewards granted admission by tickets that were sold at twelve and six-pence each, and if they did not collect all the money that was due, Mr. Levein was not answerable.

The following witnesses were then called --

Mr. William Cape - I recollect the regatta that took place in February, 1836; I attended as a visitor; I know Mr. Lord and Mr. Edwards; I did not see Mr. Lord there, nor do I recollect seeing Mr. Edwards; there was a breakfast in a tent near the battery; there were about fifty persons there, perhaps more; my daughter got a ticket from Mr. Nicholson, I don't know the exact amount she paid for it; there was an ample supply of everything that was requisite.

Cross-examined by Mr. Windeyer, for Mr. Knapp - There was wine, but I do not know who supplied it; Mr. Manning may supply Mr. Levein with his wine, but I know nothing of it.

No counsel appeared for Mr. F. Lord.

Mr. S. Stapleton, collector to the Commercial Journal - I was stationed at the door of the tent, with directions not to allow any person to enter without a ticket; Mr. Craig gave me directions; Mr. Knapp was there, and appeared to act as one of the stewards; I should not have known this if I had not been told; I saw Mr. Edwards there, he took a lively part in it; I took some money, which I gave to Mr. Craig.

Captain Nicholson - Mr. Knapp, Mr. Edwards, and Mr. Lord, I think, acted as stewards of the regatta; I cannot say whether I was a steward, if my name was put down, it was against my will, and I did not act; I was on board the ship starting the boats.

Cross-examined - I fired the gun, and watched the time; I am not sure whether Mr. E. Manning was a steward, he was there; I received no money from Mr. Knapp; I do not recollect receiving a £1 note in the presence of Mr. Dowse; Mr. Dowse might have received it; there were tents up, I think the large tent was supplied from the Dock Yard; I think I asked Mr. Knapp to assist; he took a very active part in putting up the tents; I think Mr. Craig was the original promoter of the regatta; Mr. Levein applied to me for payment, and I convinced him I was not a steward, although my name was down; I think he told me he should apply to Mr. Craig; he said a specific sum had been agreed for.

Mr. W. H. Dutton - I was at the regatta in February, 1836, as one of the guests; Messrs. Lord, Knapp, and Edwards acted as stewards, there night have been others; I bought a ticket from Mr. Nicholson, junior, who told me the stewards had given him some tickets to dispose of; I paid twelve shillings and six-pence; there was a very good breakfast; this is the ticket.

Cross-examined - I got the ticket in blank, and inserted my own name; I know Mr. Manning's signature, it is to the ticket; I was not a steward, nor did I do anything towards getting it up; I lost £48 by a former regatta, and abstained from this on principle.

Charles Millington - I was head waiter at the Pulteney in 1836; I was at the regatta breakfast; to the best of my recollection Messrs. Lord, Knapp, and Edwards acted as stewards; about eighty persons partook of it.

Cross-examined - I do not know who ordered the breakfast from Mr. Levein; he said some gentlemen had been speaking to him about it.

Mr. John Nicholson, junior - I disposed of some tickets which were given to me either by Mr. Manning or Mr. Edwards; I think I was clerk to Mr. Manning at the time; Mr. Knapp was one of the stewards, so were Mr. Edwards and Mr. Manning.

Cross-examined - I cannot say whether Mr. Manning or Mr. Edwards gave me the tickets; I paid the money I got for the tickets either to Mr. Manning or Mr. Edwards, I cannot say which.

Mr. A. Levy, publican - I was sent for by Mr. Levein to assist at the breakfast; Mr. Knapp took a very active part as one of the stewards; he requested Mr. Levein to be very particular as to who was admitted; there were no seats, and I suggested to Mr. Levein that if he sent up to the Barracks he could get forms; Mr. Knapp and Mr. Lord were present at the time; I recollect Mr. Knapp asking how Mr. Egan got into the tent, I told him he was brought in by Mr. Nicholson.

Mr. Willoughby Dowling - I know Mr. Knapp's hand-writing; the signatures to this ticket appear to be his hand; these signatures are Mr. F. Lord's Mr. Edwards's, and Mr. Manning's.

Cross-examined - The names of the parties to be admitted are not in Mr. Knapp's hand-writing.

This closed the plaintiff's case.

Mr. Windeyer submitted that the plaintiff must be non-suited on various grounds.  M r. Nicholson's evidence shewed that there had been a special contract entered into, which ought to have been proved in evidence, but had not been.  In the second place there was no proof of the value of the articles supplied, which it was necessary there should be; nor was there any proof that the defendants were in any way jointly liable, no proof of a joint contract.

Mr. Stephen contended that the stewards having fixed the price of admission at 12s. 6d. shewed the value, and that the parties having jointly acted as stewards, and signed their names jointly to the tickets as stewards, was good presumptive evidence that they had entered into a joint contract.

Mr. Foster followed on the same side, and after Mr. Windeyer had been heard in reply, His Honor said it was clear there was no evidence to prove that Knapp and Lord acted jointly with Edwards, and therefore the plaintiff must be non-suited.  The plaintiff was bound to shew that he had actually supplied the articles on the credit of the parties sued, and the circumstances in evidence were certainly not sufficient to prove that.  Non-suit entered.

Counsel for the plaintiff, Messrs. Stephen and Foster; for the defendant Knapp, Mr. Windeyer.

 

In banco, Dowling C.J., Burton and Willis JJ, 24 March 1838

Source: Sydney Herald, 26 March 1838[ 2]

 

Levien v. Lord and others. -- This was an action brought by the landlord of the Pulteney Hotel, to recover from Messrs Lord, Knapp, and Edwards, the value of a breakfast supplied at a regatta in February, 1838.  The Chief Justice at the trial held that the plaintiff must be non-suited as the declaration set forth that the defendants were jointly liable, whereas no proof of a joint contract had been given.  Mr. Stephen now appeared to move that the nonsuit be set aside as the Judge should have left the case to the jury, and directed them to find whether the articles had been supplied by the plaintiff to the defendants.  Mr. Foster followed Mr. Stephen.   The Court was of opinion the nonsuit must be supported; the plaintiff must either prove that there was a contract or else prove the value of the breakfast; the defendants might be liable to the plaintiff to a certain extent, but then the plaintiff was bound to prove the extent of that liability.

 

Notes

[ 1]See also Sydney Herald, 15 March 1838; Australian, 16 March 1838; Dowling, Proceedings of the Supreme Court, Vol. 147, State Records of New South Wales, 2/3332, p. 171.

[ 2]See also Australian, 27 March 1838; Sydney Gazette, 29 March 1838.

Published by the Division of Law, Macquarie University