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

Solomon v. Simmons [1840] NSWSupC 70

land, conveyancing

Supreme Court of New South Wales

Dowling C.J., 28 October 1840

Source: Sydney Herald, 30 October 1840 [1]

Before the Chief Justice and a Special Jury.

            SOLOMON AND ANOTHER v. SIMMONS AND OTHERS. - This was an action of special assumpsit brought to recover the sum of £113 15s., which had been paid as the deposit of £25 per cent. on the purchase of some land sold by auction, also to recover the sum of £100 which the plaintiffs had paid the defendants as part of the remaining unpaid portion of the purchase money.  The plaintiffs in this case were Messrs. V. & E. Solomons, of George-street, and the defendants Messrs. Isaac Simmons, John Terry Hughes, and John Hoskings, who in the year 1837, carried on the business of Auctioneers in Sydney, under the firm of Simmons & Co.

            The circumstances of this case as they came before the Court, were as follows:- A young man named John Piper, a native of Van Dieman's Land, a minor, who had been out on a whaling voyage, came to Sydney in the early part of the year 1837, and discovered that there was a small plot of ground belonging to him at the corner of Kent and Erskine-streets, Sydney, and being desirous to sell it, he applied to the defendants to sell the same for him by auction on the following terms, viz., the purchaser to pay £25 per cent. cash on the fall of the hammer, and the residue to bear interest at £10 per cent. until the sellers produced a fair and marketable title within a reasonable time after the sale when it was to be paid to the defendants.  The land in question was accordingly put up for sale by public auction, by the defendants, on the 22nd May, and knocked down to the plaintiffs for the sum of £455.  On the following day the plaintiffs paid £113 15s. as the per centage to Mr. Stubbs, then in the employ of Simmons & Co., and took his receipt for the same, getting inserted on it the terms of sale as already stated, only the words "procure a good title" were inserted, instead of "produce, &c."  Being anxious to procure possession of the purchase, the plaintiffs applied some time after to the defendants on the subject, and were informed that no grant had as yet been obtained for the ground they had purchased, but they were given to understand that they could obtain immediate possession if they would pay £100 more of the purchase money, this £100 they accordingly paid on the 7th of June, 1837, and immediately obtained possession of their purchase, which they continued to occupy until about the end of November, when an action of ejectment was brought against them by one Green, a boat builder, to whose family Piper was related, and to whom he had sold the premises for £400, after they had been sold by Simmons & Co. to the plaintiffs.  It also appeared that Piper had between the time of the two sales obtained a deed of grant for the ground in question from the Court of Claims, and in order to enable Green to make good his right to the purchase, Piper had conveyed to him the same deed of grant, and immediately left the Colony.  On the plaintiffs being ejected from the property, they applied to Simmons & Co. to refund the £213 15s. which had been paid as already stated, but they refused to do so, alledging that they had not complied with the terms of sale by making out their own conveyance, that the £100 had been given to Piper as the plaintiffs had desired, and therefore the defendants' were not liable to refund it, also that the defendants were always ready to produce a good title, but the plaintiffs refused to accept the same.  The plaintiffs made out their case by producing the receipts, while the defendants put forward Green as a witness, who swore that he had not purchased the property from Piper, until after he had heard the plaintiff's attorney, Messrs. Carr and Rogers, refuse to complete their bargain.  From his cross-examination it appeared that while Piper, the minor was here, Green had been for some special purpose appointed to act as his guardian, and that during the six months he remained in the Colony, he (Green) built two boats for him, and charged him £25 for each, also that he had lent him money to a considerable amount.  That when the property was conveyed to Green, Piper owed a considerable amount to Green's father-in-law, and that he was not always to be seen on that account.  It also appeared that but little of the proceeds of the property ever came into Piper's hands, the greater portion being required to clear off Green's claims.  The Chief Justice in putting the case to the Jury, instructed them to construe the words produce and procure as being synonomous, and left it to them to credit either the evidence of Green or that of the attorney from the plaintiffs.  He also instructed them if they found for the plaintiffs to give them such interest in the name of damages as they should find them entitled to.  The Jury without leaving the box returned a verdict £313 15s., being the amount claimed with £100 as interest.  His Honor certified for a Special Jury.

            Counsel for the Plaintiffs, Messrs. Foster, Windeyer, and a'Beckett; Attorneys, Messrs. Carr and Rogers.  For the Defendants, Messrs. Darvall and Broadhurst; Attorney, Mr. Norton.


[1]              See also Australian, 31 October 1840.

Published by the Division of Law, Macquarie University