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

Clendon v. Smith [1840] NSWSupC 32

sale of goods, sale by sample, New Zealand, pork exports, convict evidence

Supreme Court of New South Wales

Dowling C.J., 29 June 1840

Source: Sydney Herald, 8 July 1840[1]

TUESDAY, 9TH JULY. - Before the Chief Justice and a Special Jury.

            Clendon v. Smith - This was an action for goods sold and delivered.  The amount claimed was £378 7s. 2d., for seven tons sixteen hundred weight of pork.  In opening the case, Mr. A'Beckett informed the Jury that his client had delivered the goods, and all that he had received in return was merely £16 0s. 10d., which had been paid into Court.  The only witness called to prove the case was Edward Hill, clerk to R. Campbell, of Bligh-street, who saw defendant, on the 18th September, on board the Augustus Caesar, about some pork, and about the 24th of that month, sold him some; the defendant, offered £18 per ton for 25 casks on board that vessel, and there was seven tons sixteen hundred weight delivered to defendant.  Witness told defendant that some of the casks on board had been sold to other parties.

            Cross-examined. - Is a brother-in-law of the plaintiff, and there was nothing said at the time of the sale about the cask that had been opened on board the vessel being a sample cask.

            Mr. Foster, for the defence, called Mr. E. Raper, butcher, of Castlereagh-street, who had accompanied defendant on board the vessel to see the pork, when a cask was opened and shown to him by the preceding witness; the casks in which the pork was contained were oil casks; witness thought it was corn the defendant was about to purchase, but hearing pork mentioned, he asked the defendant what in the name of heaven induced him to buy so much pork, on which the defendant said it was good pork, and he had seen a very fair specimen of the New Zealand pork.  The case was subsequently opened and was good, the witness tasted it raw and it was not fishy - he saw some casks similar to those on board afterwards, at the defendants premises, and he was confident the cask was opened as a sample cask; about six weeks after another cask was opened at the defendant's premises, and the ends only were good, but in the centre it was very inferior, so bad that he did not deem it necessary to taste it, it was not corn fed, it was mere skin and lean, witness did not compare it to a cobbler's apron, but it was the flesh of lean starved pigs.

            Cross-examined - Could tell if pork was corn fed by looking at it; he cannot say but the pigs might have seen corn; there are fat and lean pigs in New Zealand, and they are generally regarded as being inferior to pigs of other places; the price asked was above £50 per ton, and no bargain was effected at that time; when the cooper was sent for to open the sample cask he was told to open one but it was not particularised; the witness went to defendant's premises on the day of the arbitration, and saw two casks and their contents strewed on two shutters; it was very lean and not marketable; the witness would not buy it nor eat it; Hill told Smith it was corn fed pork; when he heard the quantity named he was surprised, and asked defendant what he intended by purchasing so much pork, when the defendant told witness he had got a piece of pork from Mr. George Hill, which was New Zealand fed, and was as well tasted as any pork he had ever eat.

            Thomas Douglass livery stable keeper, was present at defendant's when two casks of very bad New Zealand pork was examined, they were large casks and held about half a ton each; they were unfairly packed, that at the end was good, but in the middle very bad.

            Cross-examined. - When the defendant applied to Mr. Hill about the Pork being bad, the defendant asked what had become of the sample cask, when Hill said it had been sent to Mr. Peckham's, of York-street; the witness was a friend of the defendant, and had been an arbitrator for him in the case; the first cask was nearly emptied, it was very bad in the centre, but at the ends was fair Pork, the second was opened in order to see if it opened in the same way as the first cask, and as it did so they guessed that the other end of it was served in the same manner.  The Pork was inferior, but it was sound.  The witness would not buy such Pork for his own use.

            Re-examined. - It was very thin lean pork, being little else than skin and bone, and would not do to sell in the shops of Sydney.

            Charles Galley a Butcher in the employment of defendant recollected sixteen casks of Pork coming to his master's in October last; one of the casks was opened, and at the top it was very fair, but in the middle it was horrid stuff, and also was horrid bad at the bottom.  The defendant was from home when the Pork arrived, and when he returned the witness show'd him in what state the Pork was, when he told him not to sell another ounce, and Mr. Edward Hill on being sent for acknowledged it was not according to sample, and offered to give the defendant a couple of casks in addition, which Mr. Smith refused.  Every care was taken of the residue, it being re-pickled by the witness, in whose care it was.

            Cross-examined. - The Pork had been about eight days on the premises before it was inspected.  About seventy pounds weight had been sold at six pence, seven pence, and eight pence per pound.  Witness on seeing the inferior nature of the Pork in the first cask he opened, took out the whole and had it repickled.  The Cook tried to boil it, but could not stop in the kitchen as it had such a stink, it was thrown out and the dogs would not eat it.  Witness had been eight years in Smith's employ, had a ticket-of-leave, and had been sent here for horse stealing.

            Re-examined. - The re-pickling was likely to preserve the Pork, and only one cask had been sold.

            Henry Denton, general dealer in provisions, and was a judge of Pork, was present when the first cask was opened, it was fair for a tier or two, and afterwards it was nothing but rubbish and he would not eat it.

            Cross-examined. - Only one cask was examined, it was very bad, it was a large cask, about the size of a wine cask; the three layers might weigh about 40, 50 or 60 lbs.  It was bad at the bottom; witness has passed off New Zealand Pork as having been fed in this Colony.  Witness never had such rubbish in his hand, and thought that there was no difference between good New Zealand Pork, and that of this Colony.  Witness had bought some Pork just before, and had not paid so much for it, as Smith had, although it was better, he thought Smith's Pork had never seen corn.

            H. Peckham, of York-street, had purchased about four tons of very fair Pork, from the plaintiff, it was of the average description, and the plaintiff subsequently offered to sell witness about eight tons, which had been previously sold to Smith, but witness did not buy it; he got it warranted, and it was fair but lean, he had been called as an arbitrator to view the state of the Pork at Smith's, and thought it was marketable, he had been offered three casks in to take the eight tons from Smith, and would not have objected to it on the point of quality, but his purchase was sufficient at the time for his demand; what he had purchased he thought cost him about £44 per ton, and he had sold it at from five pence to seven pence per pound.

            William Hitchcliffe had been super-cargo of the Augustus Ceasar, and had been offered the whole cargo of Pork at three pence farthing per pound, but would not buy it as he thought it was inferior.  He knew that plaintiff, and a person named Devien had chartered the Hoki-anga, to go round the coast in New Zealand, and buy up the Pork.  At some of the harbours there was maize growing, but the Pork which came up in the Augustus Caesar, had not been fed by Captain Clindon, but was given to him as the freight of the vessel, he knew from the plaintiff, that the Pork, had been got from quarters where Captain Clindon had no stations for rearing pigs.

            Cross-examined. - The plaintiff might have land, but he had no stations where the maize was got from he felt confident it was not corn fed Pork, and because the vessel had been out upwards of three months, collecting about thirty-five tons, he thought she might have been at different ports for it.  The defendant had spoken to him about the Pork before he bought it, but the witness could not recollect what was its import.

            The first witness Edward Hill was recalled, who deposed that the Pork had had been purchased by the defendant, without reference to the sample or warranty.

            George Wyer was in company with Hill, when the defendant offered to take the Pork at £48 per ton, but Mr. Hill wanted £50 per ton, and he understood that the bargain was ultimately completed at £48 per ton.

            In putting the case to the Jury, His Honor left it to them to determine whether the Pork had been sold by sample; whether the Pork that had been delivered corresponded with that sample.  Also as to whether the goods had been sold by warranty, and whether the Pork corresponded in quality with that warranted.  And in case there had been neither sample nor warranty, still they were to presume that this commodity was marketable.  The Jury retired for about five minutes, and returned a verdict for the defendant.  His Honor certified for a special Jury and three counsel.


[1]             See also Australian, 9 July 1840.


Published by the Division of Law, Macquarie University