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

Walford v. Mann [1841] NSWSupC 53

contract, breach of - sale of goods - damages, expectation - agency

Supreme Court of New South Wales

Burton J., June 1841

Source: Sydney Herald, 4 June 1841

Before Mr. JUSTICE BURTON and a Special


Mr. DARVALL opened the pleadings.

            Mr. BROADHURST, who appeared for the Solicitor-General, stated the case. It was an action on the case for the breach of a contract for the delivery of a certain quantity of Hyson Tea, in two months from May, 1839 and that was one of those cases in which the honour of the parties in this country was not always proof against abuse of the markets. At the time the contract was entered into tea was selling at about £5 a chest, but when the contract should have been completed tea was selling at about £15 a chest, and the plaintiff claimed as damages the difference between these two sums. The contract was in these terms:--

Sydney, 25th May, 1839.

Mr. JOSEPH WALFORD, - I have bought for your account, of Mr. S. F. Mann, by order of Messrs. Long and Co., 100 chests of Hyson skin tea with a fair proportion of half chests, at £5 15s. per chest, the tea to come by ship or ships from Hobart Town on or before two months from this date, and to be paid for on the delivery of the whole with his notes to your order at four and five months dates.

                                                I am, your obedient servant,


N. B. - The quality of the tea to be good, and the chests to be sound and in good condition.

Andrew Louis de Metz examined by Mr. DARVALL. - I knew the plaintiff and defendant two years ago; in May, 1839, I was employed to sell tea for the defendant, as a broker, the tea was to come from Hobart Town and was to cost £5 15s a chest. I concluded the sale with the plaintiff and this is the bought note signed by the plaintiff which I gave him on behalf of the defendant; I was acting for the defendant; I signed the note for the defendant; tea was about £6 a chest higher after the sale and it rose to £11 a chest; I went to defendant afterwards and he said he had given me authority to make the sale, he made some stipulation about the arrival of the ship with the tea.

            Cross-examined by Mr. FOSTER.

            The tea was to come from Hobart Town; the defendant said that he would not be bound if the tea did not arrive in two months.

            Re-examined. - The defendant never objected to anything else in the contract but the time of the arrival of the tea.

            To a JUROR. - I was paid my brokerage by the defendant; I had to summon him for this and other brokerage; he opposed the payment, but I got a decree against him in the Court of Requests.

            Robert Campbell examined by Mr. BROADHURST. - I was in the employment of the plaintiff on the 25th July, 1839, and applied to the defendant for one hundred chests of tea; the defendant said that the tea had not arrived which he intended for the plaintiff; I went again to the defendant, and he said that he would be a loser if he claimed the tea; Mr. De Metz came into the defendant's shop, and they were disputing about it; tea was then about £10 a chest; the defendant did not deny the contract.

            Cross-examined by Mr. WINDEYER. - The defendant said that the time was not up, and that the tea had not yet arrived.

            John Rich examined by Mr. DARVALL. - Tea on the 25th of July, 1839, was £7 15s.; it rose afterwards to upwards of £10.

            Cross-examined by Mr. FOSTER. - It must have been some months before tea fell to £15s., after July 1839.

            The plaintiff's case was then closed,

            Mr. FOSTER and Mr. WINDEYER submitted that the plaintiff had proved no binding contract on the defendant, who had from the first objected to the contract upon which the plaintiff had now declared, and that the contract which was proved was a qualified contract, depending upon a condition precedent; they cited Phil evid. 855.

            Mr. BROADHURST and Mr. DARVALL contended that the defendant's pleadings admitted that the tea had arrived, and that the contract declared upon and proved was properly set out and according to the written contract, which could not be varied by any parol or verbal agreement. 1 Mor. And Ry., 368.

            Mr. FOSTER, reply, argued, that the defendant's agent had had no authority to enter into the contract declared upon, and that that contract could be varied.

            Mr. JUSTICE BURTON held that there was no material variance, and cited page 16 of Roscoe's evidence, and that the question of authority was for the jury.

            Mr. FOSTER then addressed the jury, and relied upon their being satisfied that the defendant had been deceived by the broker in this case.

            Mr. JUSTICE BURTON charged the jury, and told them that if they believed the broker had had authority to enter into the contract, the defendant should be bound by it, and that then they had only to assess the damages by the prices of the tea at the times the contract was entered into and should have been completed.

            The jury retired for about ten minutes, and returned a verdict for the plaintiff - damages £300.

Published by the Division of Law, Macquarie University