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

Lee v. Holdsworth [1839] NSWSupC 22

contract, breach of - damages, expectation - sale of goods, non-acceptance - contract, writing - parol evidence rule

Supreme Court of New South Wales

Willis J., 4 March 1839

Source: Sydney Herald, 6 March 1839[1] 

Lee v. Holdsworth. -- This was an action for a breach of contract; damages laid at £500.  The declaration contained two special counts, which averred that on the 23rd of August, the defendant bought from the plaintiff all the sugar which might arrive in the ships Elizabeth and Despatch -- loaf sugar at elevenpence, and crushed sugar at tenpence per pound; and that all the sugar that arrived was one hundred and ninety-nine hundred weight of crushed sugar, which was tendered to the defendant, who refused it, whereby the plaintiff lost the large profits which he would otherwise have made.  The actual damaged claimed was £281 12s., being the difference between s[e]venpence per pound, at which the plaintiff afterwards sold the sugar, and tenpence per pound, which the defendant had agreed to give for it.

The agreement which was written by the plaintiff and signed by the defendant, was put in and proved.  Mr. Peck proved that in August, when the agreement was made, the price of loaf sugar was from 9d. to 14d. per pound, and that there was no crushed sugar in the market; but nobody would have bought crushed sugar, as it will not sell in this Colony, except to ginger beer brewers of confectioners.  On the day that the Despatch was coming in to the Heads, Mr. Lee called upon him and offered him ten tons of loaf sugar which he said was in the Despatch, but they could not agree about price, and Lee told him on the same afternoon, that he had sold the sugar to Holdsworth.  Subsequently, Mr. Peck bought the ten ton, of crushed sugar which arrived in the Elizabeth at 7d. per pound, and afterwards sold it to Mr. Dunsdon for 8d. per pound.  Mr. T. Walker proved that Mr. Lee sent through his house for ten tons of crushed sugar, which arrived in the Colony by the Elizabeth, and from the price, ought to have been good sugar.  Crushed sugar, he described as loaf sugar crushed in the docks for exportation, in order to avoid a continental duty which is levied on loaf sugar, in order to protect German sugar refiners.  If the plaintiff had ordered any loaf sugar when he order the crushed, he presumed it would have arrived. -- One of the Custom House clerks produced the manifests of the ships Despatch and Elizabeth, from which it appeared that the only sugar which arrived by the Elizabeth, was twenty five casks consigned to Messrs. Walker and Co., and that no sugar arrived in the Despatch. - Mr. Johnston, a clerk to the plaintiff's attorney, proved that he informed the defendant that the sugar was on board the Elizabeth, and that he said, it was no use sending it to him, as he agree for loaf sugar.

A nonsuit was moved for on the grounds that there was no proof of tender, and that the contract could only be treated as a whole, and that unless there [was some loaf sugar], the defendant was not bound to take the crushed, but His Honor overruled the object[io]ns.

The Attorney General addressed the Court for the defendant, contending that the plaintiff imposed upon him by pretending that he had ten tons of loaf sugar in the Despatch, which was then entering the Heads, and that it was that consideration alone which induced the defendant to agree to take a small quantity of crushed sugar -- an article that was entirely useless to him.  This fraud the learned gentleman contended was enough to vitiate the agreement.

Mr. John Thomas Wilson swore that on the day the agreement bore date he saw Lee, who said that he had sold Holdsworth ten tons of loaf sugar, which was on board the Despatch then at the Heads, and that Holdworth had promised to give him an answer in an hour.  In the course of the day Lee called again, and he accompanied Lee and Holdsworth into Mr. Holdsworth's counting-house, where he heard Mr. Holdsworth say he would take ten tons of sugar at elevenpence per pound.  Lee then said that it might not all be on board the Despatch, but that part of it might be on board the Elizabeth, upon which Holdsworth made some objection, and said that if much of it was on board the Elizabeth he should not be able to clear himself, as his speculation depended upon his having the sugar at once; he afterwards consented to take it on those terms, when Lee said he believed there was a little crushed sugar, which Holdsworth objected to take, until Lee assured him that there was only one ton of it, which could remain at his stores and he would sell it on Lee's account to the ginger-beer brewers, as they would be more likely to come to him.  Mr. Wilson then went away, leaving Mr. Lee drawing up the agreement.  Mr. Wicks, clerk to Mr. Holdsworth, proved hearing Mr. Lee say, previous to the arrival of the Elizabeth, ``about crushed sugar you had better let me have a cask of it, or as there is so little of it perhaps you had better let me have it all."

Mr. Foster, in reply, contended that there was nothing to upset the written contract; no man entering into an agreement would be safe if it could be set aside upon the mere assertion of man's after dinner friend or clerk.  The contract was to have all the sugar that might arrive, and if it could be proved that Mr. Lee had received any sugar which he had not delivered to the plaintiff he would admit it would be a good defence.  It was quite clear, he contended, that Mr. Lee expected ten tons of sugar by the Despatch, although he might not be able to prove it, as a party sending direct to a friend in England for goods would not be able to prove it unless he sent home a commission.

His Honor left it to the Assessors to say whether the agreement was fair and without fraud.  Verdict for the defendant.

Counsel for the plaintiff, Messrs. Foster and Windeyer; for the defendant, the Attorney General and Mr. a'Beckett.


Dowling C.J. and Willis J., 26 March 1839

Source: Sydney Herald, 29 March 1839[2] 


Lee v. Holdsworth. -- This was an action for a breach of agreement tried before Judge Willis and Assessors, when a verdict was returned for the defendant.  Messrs. Foster and Windeyer now moved for a new trial, on the ground that the Judge should have directed the Assessors that the evidence of Mr. Wilson could not have been taken to upset the contract, and that even if the plaintiff did make a false representation it would not be sufficient to show fraud, unless it could be proved that the plaintiff at the time knew it was a false representation.  After hearing the arguments of Messrs Foster and Windeyer, and the Attorney-General, the Chief Justice said he would take time to consider the case.


Dowling C.J. and Willis J., 4 April 1839

Source: Sydney Herald, 5 April 1839[3] 


Lee v. Holdsworth. -- This was an action to recover compensation for a breach of agreement, tried before Mr Justice Willis.  The agreement was for the purchase of loaf and crushed sugar that might arrive in the ships Despatch and Elizabeth; no loaf sugar arrived, and the defendant refused to accept the crushed sugar.  For the defence it was proved that the inducement to the bargain was the loaf sugar, and a witness proved that before the contract was made the plaintiff assured the defendant that there would not be more than one ton of crushed sugar out of the ten tons.  His Honor left it to the jury to say first whether the agreement was fair and without fraud, secondly, whether the contract, if fair, had been broken, and thirdly, if it had been broken what damages should be given.   A new trial was subsequently moved for, on the ground that the verdict was contrary to evidence, and that the learned Judge should have directed the jury that the evidence of the witness for the defence could not be taken to contradict the written contract.  After hearing very lengthy arguments, the Chief Justice took time to consider the case.

His Honor delivered judgment this morning.  With respect to the first point he was of opinion that the evidence was sufficient to sustain the verdict, the credibility of that evidence being of course for the assessors to judge of.  With respect to the second point, he could not collect from the notes of the learned Judge who tried the cause that the evidence was taken for the purpose of varying or contradicting the contents of the written contract, but merely to show under what circumstances the defendant was induced to make the agreement, for which purpose it was clearly admissible. -- New trial refused.



[1] See also Sydney Gazette, 7 March 1839; Australian, 9 March 1839.

[2] See also Sydney Gazette, 30 March 1839; Australian, 30 March 1839.

[3] See also Sydney Gazette, 6 April 1839.

Published by the Division of Law, Macquarie University