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

Simmons v. Westmacott [1838] NSWSupC 27

sale of goods, rescission - sale of goods, sale by description - deceit - promissory note, failure of consideration - Berrima - agency

Supreme Court of New South Wales

Burton J., 20 March 1838

Source: Australian, 23 March 1838[ 1]

TUESDAY. - Before Mr. Justice Burton, and a Special Jury.

Simmons, and others. v. Westmacott - This was an action of assumpsit, brought to recover the sum of £202 10s., being the amount of a promissory note drawn by the defendant in favor of the plaintiffs, and which having been negociated by them, they were compelled by the refusal of the defendant to retire.  The defendant pleaded that he had received no consideration for the note in question.  The circumstances out of which this case (a very interesting one to the mercantile community) arose, are as follows.  In the month of August, 1836, William Cordeaux, Esq., J.P., of Leppington, was applied to by Mr Campbell Forbes, for the purchase of some sheep.  Mr Forbes had but recently arrived in the Colony with letters of recommendation to Mr Francis Mowatt, through whom the introduction to Mr Cordeaux was effected, and the bargain between the parties ultimately concluded.  Mr Forbes was advised by his friend to purchase a flock of young ewes, but he having only a moderate capital at his command, thought that by purchasing a flock of old ewes at a cheaper rate, his intention of raising a flock would be equally well answered.  A memorandum was accordingly drawn up between the parties, to the effect that, in consideration of a certain sum of money paid beforehand to Mr Cordeaux, the latter had sold to Mr Forbes a number of sheep on his run at Bundoonie near Berrima, at the rate of 20s. per head.  It was expressly stipulated that the sheep were to be the most objectionable of Mr Cordeaux's flocks, in consequence of the lowness of the price - and the quantity therefore selected for delivery to Mr Forbes, in pursuance of the bargain, were, in the language of Mr Cordeaux, such as he did not want to keep, or in plainer terms, that he wished to get rid of - and that expecting them to die soon, he was naturally very anxious to dispose of them.  It would appear that Mr Forbes very soon repented of his bargain, for without removing the sheep from Mr Cordeaux's run, he sold them to a Mr Wakeford, in the commencement of May, 1837, through the agency of Mr Mowatt, to whom the purchaser wrote upon the 10th day of that month, stating that he had seen the sheep upon the run, and that some of them were ``real crawlers."  Notwithstanding this unfavorable character of the sheep, Mr Wakeford, in six days afterwards, waited upon Mr. Thomas Stubbs, the assistant to Messrs Isaac Simmons & Co., Auctioneers and Commission Agents, with a view of disposing of the sheep through their means; and he described them as three hundred and eighty-five ewes in lamb, twenty-three rams, one hundred and fifty-hour wether lambs, one hundred and fifty-nine ewe lambs, and nine ram lambs, being seven hundred and thirty in the whole, one hundred only being aged, and the whole being in superb order.  The price he affixed upon them, was £1126 4s - adding, according to the memorandum which was taken down by Mr Stubbs from his own mouth at the time, that he had no objection to keep them for the purchaser for them upon those terms, he subsequently lowered his demand to £900.  On the 24th June, Captain Westmacott, the defendant, called at the auction mart of Messrs Isaac Simmons & Co., the plaintiffs, and enquired of Mr Stubbs, their assistant, whether he had any sheep to dispose of; in consequence of which enquiry, Mr Wakeford was introduced to Captain Westmacott upon the 28th of the same month, when in the presence of Mr Stubbs, the purchase of the sheep was concluded, under the before mentioned description at £900, ten per cent, (£90) being paid down in a check upon one of the banks at the moment, and bills at three, six, nine, and twelve months, (the two latter bearing interest,) being given by Captain Westmacott for the remainder.  The check and bills which were both made payable to Messrs Simmons & Co., were handed over to Mr Stubbs, and while he went out of the room to causer them to be entered in his principals' books, in the usual way of business, a memorandum expressive of the nature of the bargain was signed by both of the parties, to the effect that the purchase was to take effect when the sheep had been approved of by a competent judge to be sent to inspect them on the part of Captain Westmacott.  The memorandum, although drawn up (according to the expressed opinion of Mr Stubbs,) after the full and perfect completion of the sale, was nevertheless retained by Mr Stubbs on account of his employers, and the check and bills remained also with them until the 10th July, when the latter were given up to Mr Wakeford by Mr Stubbs, who stated that he had the same authority in all such matters as Messrs Simmons & Co. themselves.  Mr Stubbs accounted for the check not having been handed over to Mr Wakeford at the time of sale, by stating that his principals had a claim of £12 against that gentleman for a gun previously sold to him, and that he had not at that time made out the account for the commission of two and a half per cent, which Messrs Simmons & Co had charged for effecting the sale, and in consideration of which they guaranteed the payment  of the purchase money, by having the bills drawn in their favor - it being stated that Mr Wakeford refused to accept Captain Westmacott's bills, without the indorsement of Messrs Simmons & Co.  Upon the 18th July, being eight days after Mr Stubbs had paid over the bills to Mr Wakeford, Captain Westmacott called upon Mr Stubbs with a letter from his friend Mr Taaffe, who having inspected the sheep, had disapproved of them, as not being of the description represented to Captain Westmacott at the time of sale.  Mr Stubbs upon that occasion accompanied Captain Westmacott to Mr Norton, his attorney, where in the course of a conversation which took place between the parties, Mr Stubbs acknowledged that it was a pity he had given up the bills, adding that he had done so principally in consequence of Mr Wakeford having told him that the sheep would be found all right.  He also gave up the memorandum which till then had been in his possession, and appeared disposed to assist Captain Westmacott to his utmost, in order to release him from the transaction.  On the same day, Mr Stubbs, on behalf of his principals, wrote to Mr Wakeford, furnishing him with an extract of Mr Taaffe's letter; and acquainting him that in consequence of that gentleman's letter, Captain Westmacott had rescinded the bargain, requested him to call at the office of Messrs Simmons & Co on the following morning, and return the bills.  To the letter of Mr Stubbs, Mr Wakeford sent a most laconic reply, merely saying that he did not feel himself called upon to comply with the last part of the communication.  The first of the four bills becoming due, Messrs Simmons & Co had to retire it upon presentation, the defendant having declined doing so, and the present action was therefore brought to recover the amount from Captain Westmacott - it being contended that the question of non-consideration did not affect the plaintiffs, they not being in the situation of vendors in the transaction, but that they had merely acted as agents for the purpose of brining the parties together, who themselves perfected the bargain.  It was upon this point that the question mainly turned; for as to the fact of the sheep being of a most inferior description to that which Mr Wakeford had given to Mr Stubbs, and which had been Captain Westmacott's inducement to purchase them, Mr Cordeaux himself fully established, by stating that they were the culls of all his flocks, and the oldest and most objectionable he had; and that they were anything but in ``superb order."  In fact Mr C. admitted that although they had been sold no less than three or four times, no one considered them worth taking away, and they still stuck to him, much against his inclination.  A question being put to Mr Cordeaux as to the precise meaning of the word ``aged" as regards sheep, Mr C. said that he considered a sheep to come under that denomination when it was six years old.  He was aware, however, that there was a difference of opinion upon this subject, some flock-masters considering full-mouthed sheep to be ``aged," while others did not hold them to be such while they had a tooth in their heads.  Mr Foster, on the part of the plaintiffs, contended that they had acted as mere agents in the transaction, and that Captain Westmacott had been debited in the books of Messrs Simmons & Co. for the amount of the sale - that credit had been carried to his account for the check and bills he had given - and that a full settlement of account in the transaction had been given him, representing Messrs Simmons & Co. as the sellers.  Mr Justice Burton, in charging the Jury, told them that an agent might act in such a way as to make himself a principal, and that the question as to whether the present plaintiffs had done so, was the whole gist of the case.  There were other modes of guaranteeing payment from a purchaser, than by having bills drawn in the agent's own name, which, in the present case, were not even handed over at the time they were drawn, and the amount of the check was more than ample to discharge the commission due to them upon the sale, and the charge of £12 for the gun.  Then the plaintiffs might have repudiated Captain Westmacott when he came to them with Mr Taaffe's letter; instead of doing which, they had written to demand back the bills, and entered their communication in their own letter book.  His Honor thought, that if the jury believed the evidence in this respect, the plaintiffs had, in point of law, made themselves principals in the transaction; and the defendant was, therefore, enabled to set up the same line of defence of non-consideration, or of failure of consideration, as he would be entitled to do against the person for whom they acted.  The learned Judge dissented from what Mr Foster had advanced respecting the defendant having his remedy against Mr Wakeford - the plaintiffs had their remedy against him for having misled them.  Although they contended that the memorandum was not given until after the full and perfect completion of the sale, still they had it in their possession, and they might just as well have waited for the approval of the sheep before they gave up the bills as not.  If the defendant had a right to rescind his contract, and upon that point there would, perhaps, be but little doubt, then the only question was, had he rescinded it in a reasonable time?  Where no express time was mentioned, the law presumed that a contract must be rescinded within a reasonable time.  Now, between the time of purchase and notice of rescinding, there was a lapse of three weeks, and the sheep being in the neighbourhoad [sic] of Berrima, about ninety miles from Sydney, between which places a mail ran three times a week, it did appear some little delay had been made.  But although the defendant might have inspected the sheep sooner, he was not exactly bound to do so.  The question was, whether there had been any unnecessary and vexatious delay on the part of the defendant?  It had not been alleged that the plaintiffs, or Mr Wakeford, had been at all damnified by it.  The Jury after about three minutes' consideration, returned a verdict for the defendant.  The learned Judge certified for a Special Jury and two Counsel.  Counsel for the defendant, the Attorney-General, and Mr Windeyer - Attorney, Mr Norton.  For the plaintiffs, Messrs Foster and Broadhurst - Attorney, Messrs Carr and Rogers.



[ 1]See also Sydney Herald, 22 March, 1838; Sydney Gazette, 22 March 1838.

Published by the Division of Law, Macquarie University