Skip to Content

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

Smart v. Solomons [1838] NSWSupC 63

sale of goods, sale by description - sale of goods, sale by sample - auctioneer, liability for fraud

Supreme Court of New South Wales

Burton J., 27 June 1838

Source: Sydney Gazette, 30 June 1838[ 1]

Smart v. Solomons and another.  This was an action for goods sold and delivered, damages laid at £42 12s. 0d.  The defendants pleaded the general issue.  The plaintiff's case was, that on the 30th of November last the defendants purchased at auction several casks of glass from the plaintiff.  At the time of the sale the plaintiff read the invoices purporting to be an account of what the casks contained, but at the same time expressly dissented from giving any guarantee that the contents of the casks agreed with the invoices, and there was one cask purchased by the defendants for which there was no invoice, and which they purchased at their own risk.  The goods were removed by the defendants, but, when the plaintiff applied for the money, they refused to pay.

The defence was, that the goods were sold by invoices, which were read at the time of the sale, and that the glass did not agree with the invoices.  The principal witness on this point was Mr. Joseph Wyatt, who stated that, about four years ago, Messrs. Marsden and Flower offered him thirty casks of glass, which they had received from England, and which were invoiced at £440.  Finding that the glass did not agree with the invoices, but was evidently made up for the purpose of obtaining the drawback in England, he offered £100 for the whole lot on a speculation.  Messrs. Marsden and Flower said they would send Mr. Wyatt's offer to England, which they did; and in answer were desired to sell the glass by auction for what it would fetch.  Mr. Wyatt attended the sale, and hearing Mr. Smart read the invoices did not agree with the contents of the casks, and he had better not guarantee them.  Mr. Smart afterwards read the invoices of other casks, but he could not say whether or not Mr. Smart said that he would not guarantee that the contents of the casks agreed with the invoices.  Mr. Wyatt said that the invoices did not bear the slightest connexion with the contents of the casks, but were merely made for the purpose of obtaining the drawback of seven pence per pound.  The invoices described dozens and sets of glasses of different descriptions, while the casks did not contain two glasses of one kind, but were filled with odd glasses of all descriptions, qualities, and colours.

In putting the case to the jury, his Honor said he could see no reason why auctioneers should not conduct their business on the same principles of honesty and fair dealing as guide other tradesmen.  It is important that auctioneers be made aware that, if they make themselves principals in transactions instead of mere agents, they are liable to the same defence that could be set up against the principal; and if there is fraud in the principal, it can be set up as a defence against the auctioneer.  If the invoices read at the sale were not read for the purpose of informing the purchasers of the contents of the casks, for what were they read?  The question for the jury was whether, at the time of the sale, a representation of the contents of the casks was made; and whether that representation was false if it was, the defendants were entitled to a verdict; if, on the other hand, they believed no representation was made, or that, if made, it was true, they must find for the plaintiff.  If the invoices were not intended to represent the contents of the casks, they could only be looked upon as waste paper, and it was no use reading them at all, and they were not accounts of the contents was evident, for the invoices described the casks as containing dozens and sets of glasses, while the casks contained nothing but odds and ends of all descriptions of glass, and in fact, the invoices were made up for the purpose of fraudulently obtaining a drawback which is allowed in England on the exportation of glass.  Under the circumstances which the glass was sold it was certainly the duty of an honest auctioneer to say that he knew nothing about the contents of the casks, but instead of that, Mr. Smart read the invoices saying at the end of each that the invoices amounted to different sums.  Now what was this for, but to certify to the quantity and quality of the contents of the cask.  The heads of the casks, it was true, were out, and the purchaser could dive into the casks, but that was only an imperfect mode of examining their contents.  There was one cask which was sold without an invoice, and for that the plaintiff was certainly entitled to a verdict, and the question with regard to the other was upon what representations they were sold.  Verdict for the plaintiff damages £11 10s. being the amount of the one cask.



[ 1]See also Sydney Herald, 2 July, 1838; Australian, 3 July 1838.  See also another case called Smart v. Solomons, in which a verdict by consent was gained by the plaintiff on the sale of sugar which was not according to sample: Sydney Herald, 4 July 1838; Australian, 6 July 1838; Sydney Gazette, 10 July 1838.

Published by the Division of Law, Macquarie University