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

Sheehan v. Stubbs [1842] NSWSupC 56

auction - contract, misrepresentation - contract, rescission - false advertising - Wollongong - money had and received

Supreme Court of New South Wales

Burton J., 25 January 1842

Source: Sydney Herald, 27 January 1842

            This was an action for money had and received.

            The Solicitor - General and Mr. Foster appeared for the plaintiff; and Mr. Windeyer for the defendant.

The Solicitor-General stated, that Mr. Stubbs, the auctioneer, had been employed to sell some cottages at Wollongong , and had advertised them in the newspapers as being a very desirable property. The present plaintiff was one of the attendants at the sale, but the property was knocked down to some fictitious bidder. At the conclusion of the sale Mr. Stubbs told the plaintiff that he had missed an excellent bargain, and recommended him not to lose the opportunity of purchasing the property of the party to whom it had been knocked down at the sale. The plaintiff did so, paying ready money for his purchase. Upon subsequently visiting Wollongong , in order to inspect his purchase, he found he had been grossly deceived, the property falling far short of realising the descriptions given of it in Mr. Stubbs' advertisement. The result was the present action, which had been brought by the plaintiff, in order to recover back his purchase money.

Daniel Linehan examined by Mr. Foster. - Was a clerk to the defendant at the time of the sale of the cottages at Wollongong . Made the entries in the sale book. Was not present at the sale, but the cottages were sold after the sale to the plaintiff by private contract for £350. They were described as four brick-built cottages, containing two rooms, with 49 feet frontage to Crown-street, by a depth of 60 feet, finished in a substantial manner, with panel doors, and good-sized windows in front room, &c.

Cross-examined by Mr. Windeyer. - Witness could not say whether the plaintiff had ever said he had been to Wollongong to see the property. The purchase money was £310, and was all paid in bank notes; Mr. Musgrave appeared to be the party for whom Mr. Stubbs sold; was not present when application was made to his Honor by Stubbs to have Musgrave made the defendant; the advertisements were usually written by Richard Stubbs.

Mr. Robinson was examined by the Solicitor-General. - Stated he was a surveyor, and had been employed by the plaintiff, Mr. Sheehan, to go down to Wollongong , in order to inspect the cottages, and had found them very different from the description. Instead of being well built, they were very badly built, and the frontage, instead of being 49 feet, was only 48 feet 7 inches; the shingles and the mortar were very bad, a specimen of the latter (which the witness stated more resembled mud,) being produced in court; there were no privies, fences, hearth stones, sills to the windows, or brick arches to the windows; all of which should be found in houses described as in the advertisement. The panelling was so bad, that witness might have driven his fist through it.

Cross-examined by Mr. Windeyer. - Witness measured the frontage of the brick work, not of the foundation; it did not appear to extend beyond the brick work.

Evangelist Bloomfield examined by Mr. Foster. - Was a builder; had seen the houses in question; they did not seem to be well built; the shingling and flooring were bad; they certainly were not completed in a workmanlike manner, as described in the advertisement.

Cross-examined by Mr. Windeyer. - Considered that neither the brickwork, the flooring, nor the shingling, were done in a workmanlike manner.

Mr.Chambers examined by the Solicitor-General. - Had called on Mr. Stubbs before the commencement of the action, to inform him that he, witness, had been instructed to bring an action for the plaintiff, against him, Mr. Stubbs, to recover back the purchase money, on the ground of misrepresentation of the property. Mr. Stubbs answered that he had the money in his hands, and would pay it over to any one the court should require him to pay it to. This was the plaintiff's case.

Mr. Windeyer submitted for the defendant, that the plaintiff must be nonsuited, the action had been brought against an agent, the plaintiff well knowing the defendant was an agent, and the principal (Mr. Musgrave) being disclosed.

His Honor ruled, that the money not having been paid over by Stubbs, an action was maintainable against him for its recovery; the plaintiff having rescinded the contract.

Mr. Windeyer then contended, that the alleged misdescription spoken of by the witness, Mr. Robinson, was merely a misdescription in the opinion of a Sydney surveyor, who at the time he was inspecting the cottages in question, was thinking of houses in Sydney of a very different kind. The account given of the cottages the assessors would find substantially correct as applied to cottages of two rooms at Wollongong . No one would expect that such habitations as these should be as finely finished as much larger and more expensive houses. He (the learned gentleman) would call witnesses who would show that the houses were reasonable well finished for houses of that size, and that, in fact, considered as very small houses. There was no misdescription at all.

Robert Osborne examined by the Solicitor General. - Knew the property in question; had measured it front and back, and found it according to the advertisement; thought the property remarkably well finished for such houses as these were.

Cross-examined by the Solicitor General. - Witness had sold the land on which the cottages stood to Musgrave. Had been present at the sale of the cottages; did not believe Musgrave had bidden at the sale; when witness saw the house, the roofing and plastering were not finished; witness would not swear there were any doors and windows in the cottages when he gave the description. Had built the school house at Wollongong , which was afterwards, on the ground of its being badly built, condemned, and partly pulled down.

John Longmore was called, and about to be examined by Mr. Windeyer, when Mr. Foster objected that this witness could not be heard without a release; as having been the builder of the house, he would be liable to an action at the suit of Musgrave, if this latter person were proceeded against by Mr. Stubbs.

Mr. Justice Burton thought the witness might be examined, and he then stated, in answer to Mr. Windeyer's questions, that he, as builder, knew the cottages in question, and thought they were as well built as any other cottages of the same size at Wollongong .

Cross-examined by Mr. Foster. - Had himself built the cottages. Would not swear they had been finished three months.

By the Judge. - Witness's contract for building the whole of the four houses was £212.

Robert Hughes gave evidence similar to the last witness, stating that he thought the materials of which the cottages were made, were very good.

This was the defendant's case.

The Solicitor-General replied. His Honor summed up the evidence, and the Assessors returned a verdict for £310.

Published by the Division of Law, Macquarie University