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

Smart v. Samuel (1843) NSW Sel Cas (Dowling) 48; [1843] NSWSupC 20

squatters runs, sale of, contract law, readiness and willingness

Supreme Court of New South Wales

Dowling C.J., Burton and Stephen JJ, November 1843

Source: Dowling, Notes for Select Cases, S.R.N.S.W. 2/3466, p. 46

Where the principal question for the jury was whether a party was ready and willing to deliver cattle in a reasonable time; held that the opinion of the jury will not be disturbed if there was evidence properly received and fairly left to the jury to support the plaintiff's case.*

This was an action of special assumpsit for not accepting "within a reasonable time", certain cattle and a station on which the cattle bought by the defendant of the plaintiff were running with averment of special damages. Pleas. 1st, that the plaintiff was not ready and willing "in a reasonable time" to deliver the cattle and the station. 2nd, that the defendant had no notice of the plaintiff's readiness and willingness to deliver, and 3rd, that the defendant was ready and willing in a reasonable time to accept delivery and offered to do so but the plaintiff was not ready and willing to deliver. Issue on these pleas.

At the trial before Stephen J. and a special jury on the 24th of August last, it appeared in evidence that the defendant, a butcher of Sydney, by a memorandum in writing signed by him, on the 15th of March 1842 bought all the plaintiff's horned cattle at £5 per head, consisting of a mixed herd, then running at Cudgee, Broulee and Maneroo with certain brands; the price payable by bills at six, and 12 months from the date of the purchase. The memorandum specified the different sexes, ages and numbers of each. In all there were 443 head of cattle, and it was understood that all calves under five months old were to be given in. Then followed an undertaking by the defendant as follows: "I will take delivery of the stock by my agent at Cudgee as brought into the stock yard by Mr Kenyon or any other person acting for Mr Smart". The right of station was to be his. He then stipulated as follows: "If, on the receipt of the cattle, my agent finds the bullocks not in a state for immediate slaughter, Mr Smart is to have them driven to Mr Kenyon's at Maneroo to remain there three months without any expense. After which I am to pay him usual terms &c". Another stipulation was: - "In case of there not being 140 head fit for slaughter within nine months from this date Mr Smart is to renew half the amount of the 12 months bills". Lastly there was a stipulation for a reference to arbitration in case of any dispute.

On the 31 March 1842 the defendant wrote to the plaintiff in these terms:

Dear Sir,

In terms of our agreement of the 15 instant, I beg to inform you that I have sent Mr George Mountain as my agent to receive the cattle purchased of you running near Broulee and should he make occasion to leave he will depute another person to act for me during his absence.

In April 1842 Mountain and a man named Evans went up to Cudgee being furnished with horses provided by the defendant, delivered a letter from the plaintiff to Kenyon, his agent, for the purpose of receiving the cattle and the station.

The substantial question in the cause raised upon the issues, was whether the plaintiff was ready within a reasonable time to deliver the cattle and the station in terms of the contract. Much of the contest arose upon the construction of the terms used by the defendants "I will take delivery of the stock by my agent at Cudgee as brought into the stockyard". The defendant contended that the whole of the cattle must be first brought into the stockyard, before he was bound to take delivery, and the plaintiff claimed that they were to be taken as they could be brought in from the run in parcels from time to time, within a reasonable time. On this issue, the case turned principally upon what took place at the station between Kenyon, the plaintiff's agent and Mountain, the defendant's agent, their testimony being directly at variance.

After Kenyon had been examined and cross-examined it was moved by the defendant's counsel that his evidence should be struck out of the Judge's notes, on the alleged ground that he had an interest in the matter of the suit. It appeared that he had originally the management of the cattle for the plaintiff and was to have one third the profits upon sales for his remuneration. He had since become insolvent, and swore that he had no interest whatever in the matter of the suit. For the plaintiff it was objected that assuming Kenyon had any interest, the objection to this qualification ought to have been made on the voir dire, but at all events immediately on discovering his supposed interest, and before the close of his cross examination, and not after he was treated as a competent witness, with the chance of his stating something favourable to the defendant's case. The learned Judge declined striking the evidence out of his notes, but reserved any question which might be raised to his competency for further consideration.

According to Kenyon's evidence when Mountain came to receive the cattle, he told the latter he was to receive them as they came into the stock yard but Mountain insisted that he was to have the whole at once, and have the brands given up. Kenyon said it would take 6 weeks to collect them, and that he, Mountain, was bound to receive them as they were brought into the yard and brand them then. Mountain then proposed that it would be better to wait until Spring to deliver them.

It was objected by the defendant's counsel that this part of Kenyon's evidence was inadmissible in as much as it was an attempt first to vary the written contract, as to the time of delivery and, secondly, to bind the plaintiff by Mountain's evidence (he being only an agent to receive the cattle) and not to postpone the delivery of them to a future time. The learned Judge said what Mountain said as he would not receive evidence to vary the written contract, but he would receive it on the issue whether as the defendant's agent for receiving the cattle, there was not a readiness on the plaintiff's part to deliver and an unwillingness on the defendant's part to receive the cattle in a reasonable time. Kenyon swore that at that time there were 180 heads of cattle in a 200 acre paddock adjoining the stock yard and he could have brought in 100 more in a couple of hours, but Mountain refused to take any unless he got all and the witness gave up the brand.

Kenyon then came to Sydney part of the way in Mountain's company and told the defendant that Mountain would not receive the cattle as they were brought in, and that they could not agree. The defendant said he dared to say that there were faults on both sides, and told witness he had sent a letter to him by Mountain, for him, the witness to act for him . This letter had not been delivered by Mountain to Kenyon. The defendant then said he would go up himself in Spring and that the principals had better be there themselves. There was other evidence to shew that the plaintiffs had made preparations for collecting and delivering the cattle before the arrival of Mountain and had collected 187 in a paddock adjoining the stockyard, and when Mountain went away two hundred more might have been got in, in a few days. The plaintiff sought by way of damages for the defendant's breach of contract, the difference between the price agreed to be paid for the cattle and the price at which they were afterwards sold by auction. It was proved that in September 1842, a sale of 437 cattle took place by auction in Sydney having been previously advertized together with the station at Broulee, the numbers, sexes and description of the cattle corresponding with those mentioned in the contract and netted £1285 which was handed to the plaintiff who now sought to recover £703, being the difference between that sum and the contract price agreed to be paid by the defendant.

On the part of the defendant, Mountain was called, who stated that he saw but 50 head of cattle in the paddock, and perhaps 100 more in the flats, that the weather was very bad and wet, that when he told Kenyon he had come to receive the cattle the latter told him it was impossible to get them in then, and he could not stop for purpose of getting them in; that he (Mountain) told him he would stop six months if necessary to get the cattle in, but Kenyon said he would not stop three months, and that he (Mountain) offered to take the station and take what were then got in. He swore that he never saw more than 200 head altogether, either in the paddocks or about the flats. No objection appeared to have been made that the cattle were not brought into the stockyard. The widow of the overseer at Cudgee was called to prove that she heard Kenyon say that he should lose 100 head of the cattle, if the station were given up, and that he would not see himself and his family wronged - for that he should have had 100 head if the cattle were not sold by the plaintiff. On cross examination she said Mountain had said that if he could not get fat cattle there he would lose no further time, and could get some at Coghill's on his way down. It was proved that Mountain, on his way to Cudgee, had been looking at some fat cattle at Mr Coghill's. This evidence went to shew that the agents of both the plaintiff and the defendant were unwilling that either of their principals should perform the contract, the one person interested moves to secure himself a share of the cattle and the other to save himself the trouble of waiting, when he could get fat cattle for his master nearer home. The man Evans who went up with Mountain was not called and could not be found.

The learned Judge in stating the case for the jury observed that both parties admitted that the contract was to deliver "within a reasonable time". In cases of this description the meaning of reasonable time must depend upon circumstances, for the law did not define it, it depended upon the subject matter of the contract. The state of the weather, and other contingencies over which parties had no control, must be taken into consideration. A flood, a drought or accidents might interfere with an immediate performance of such a contract. The party contracting must certainly use due diligence and do all in his power to perform it. The issue in the first and third pleas were nearly identical, for they both turned upon the point of readiness on the part of the plaintiff to deliver and of the defendant to receive within the terms of the contract. The defendant contracted to take delivery of the cattle "as brought into the stock yard" by the plaintiff's agent. As a matter of legal construction he thought the plaintiff was not, under this contract, bound to deliver the whole at once consisting of 443 head of cattle, into the stock yard. He thought the defendant was bound to accept as they were delivered at the stock yard and for this purpose a delivery in the paddock close to the stock yard ordinarily would have been sufficient. The case did not turn upon whether the paddock was to be considered the stock yard for no objection had been made as to the particular place of delivery, but whether there was a readiness to deliver the cattle at Cudgee within a reasonable time. Upon this issue His Honor contrasted the evidence on both sides, and left the jury to draw their own inference as to which side most weight was to be attached.

Upon the point of identity between the cattle which were the subject of the contract, and those sold by the auctioneer, although the evidence was somewhat loose, yet there was enough to go then from which they might draw the conclusion of identity by referring to the auctioneers advertizement containing the name of the station, and the number and description corresponding generally with those specified in the contract. His Honor thought the plaintiff entitled to the verdict if the jury were of opinion that his agent was ready and willing to deliver within a reasonable time, and that the defendant's agent refused unless he got the whole at the time he demanded the cattle. The jury found for the plaintiff. Damages awarded of £703.

During last term it was moved that a nonsuit be entered, or that a verdict be entered for the defendant, or that a new trial be granted, or that the damages be reduced on a variety of grounds. The principals were, that the verdict was against evidence, that it was against the weight of evidence, that parol evidence was improperly received to vary the written contract between the parties, that Kenyon was an interested witness and ought not to have been admitted and that there was misdirection.

Dowling C.J. (on behalf of the Court). We have fully considered this case, and are of opinion that the verdict ought not to be disturbed. If there was any evidence properly received and fairly left to the jury to support the plaintiff's case, it is clear on all authority and practice that the verdict ought not to be disturbed. Here there was evidence on both sides. There was evidence in support of the plaintiff's case if the jury believed it, quite independently of Kenyon's, and it was their exclusive province to determine upon the weight and effect of it and they having pronounced their opinion it would be contrary to all rule to meddle with their finding unless for manifest error or perverseness. The first two grounds taken must therefore fail.

It having been reported to us by the learned Judge who tried the cause that he received no parol evidence to vary the written contract, we are bound by that report, unless it be made manifest that the evidence received had the effect of varying the written contract or had an improper effect upon the minds of the jury. The issue was whether the plaintiff was ready to deliver and the defendant to accept the cattle in a reasonable time. This was a matter of evidence to be determined by the conduct and actings of the authorized agents of both parties.

The witness, Kenyon, was the authorized agent to deliver, and Mountain the authorized agent to receive the cattle. The defendant's agent, finding that he could not get the cattle in the mode and manner in which he construed the contract, proposed to the plaintiff's agent to postpone the delivery of the cattle to the following Spring. Such a proposal was surely evidence to go the jury upon the issue as to the readiness of the defendant to accept, by his agent, the cattle in a reasonable time. In that way only was the evidence received , and not to vary the written contract and we think it was admissible for the purpose for which it was received and not open to the objection now made to its reception.

The next point in controversy was whether Kenyon, the plaintiff's agent was disqualified from giving evidence on the ground of interest. The witness himself disclaimed all interest in the cattle. It was true he admitted that he had originally charge of the cattle to be remunerated for his care in the management of them and to be paid for his trouble by one third of the proceeds of sales. He had no interest in the cattle themselves. His remuneration must therefore be regarded in the light of a commission for agency in the case only of the cattle. He had since become insolvent without assets and there was no proof that at the time of the contract in question he had any interest in the cattle in specie, and he swore that he was in no way interested in the result of the suit. The loose conversation spoken of the widow of the overseer was open to explanation. She might have been vexed with the plaintiff parting with the cattle under the contract which would probably have had the effect of diminishing his remuneration as agent in charge, but that would not disqualify him as a witness on the ground of interest. Whatever interest, however he had, if any in account with the plaintiff on this transaction it would vest in his trustees. Assuming however that he had any interest, a question arose as to the proper reason for taking the objection.

This witness was not examined on the voir dire. He was sworn in the cause without objection. He was examined in chief; he underwent a long cross examination in the course of which the supposed interest was discovered and nearly at the close of his cross examination after the supposed interest was discovered it was objected that his evidence must be struck out of the Judges' notes. The question is whether the objection was out of time. There are no doubt divers authorities on this point. It has been held that where it is discovered incidentally in the course of a cause in which the witness is interested, his evidence will be struck out, although no objection has been made to him on the voir dire, see Howell v. Lock (1809) [Howell v. Lock (1809) 2 Camp. 14, 170 E.R. 1065] and Perigal v. Nicholson (1810) [Perigal v. Nicholson (1810) Wight. 63, 145 E.R. 1175]. It seems however that a party who is cognizant of the interest of the witness at the time when he is called, is bound to make his objection in the first instance, according to the general principle, for otherwise he might obtain an unfair advantage, by having it in his power to establish or to destroy the evidence, just as was most beneficial to himself. Where a witness, having been examined, had left the box, but on being recalled, answered a question put by the Court, from which it appeared that he was interested, it was held that his competency could not then be disputed, see Beeching v. Gower (1816) [ Beeching v. Gower (1816) Holt. 313, 171 E.R. 253]. And where a witness had been examined and cross-examined or interrogated without objection it was held that the objection to competency could not be taken at the trial. In Hartshorne v. Watson (1839) [Hartshorne v. Watson (1839) 5 Bing. N.C. 477, 132 E.R. 1183] it was held that where a witness is prima facie interested the objection to his competency should be taken if, at all, on the voir dire; and in Fellingham v. Sparrow (1840) where a witness had been called and after he had been dismissed by the party calling him, it was discovered from private information that the witness was incompetent from interest, and the party for whom he appeared recalled him merely to inquire as to the existence of his interest, the objection to the incompetence would not be allowed to prevail.

In the present case, it appears no doubt that the objection was made before the witness left the box, but it is certified to us by the learned Judge that after the supposed interest was discovered, the counsel still went on with his cross-examination, instead of making his objection at once. Now certainly the principle to be collected from the cases is that the objection must be taken immediately on the discovery of the interest of the witness and not to allow the party to wait and continue his cross-examination, before the chance of being able to make use of him as a good witness and not to rescue the objection in pelto upon its turning out that nothing favourable to his case can be extracted. It is not however necessary to pronounce any distinct opinion that the objection was out of time, because it has been holden that where a witness has been improperly received, yet if the Court sees clearly that there was sufficient to warrant the verdict without his testimony a new trial will not be granted, see Horford v. Wilson (1807) [Horford v. Wilson (1807) 1 Taunt. 12, 127 E.R. 733], Edwards v. Evans (1803) [Edwards v. Evans (1803) 3 East. 451, 102 E.R. 670].

Now in this case there was the evidence of two other witnesses independently of Kenyon's testimony, that the plaintiff was ready and willing to deliver the cattle according to the terms of the contract, and that some of the cattle had been collected by Mountain who refused to take them, unless he had the whole body at once, and proposed that the delivery should take place in the Spring. The evidence therefore of Mountain himself went to shew that he was not ready and willing, and did not offer to take them in the terms of the contract within a reasonable time, that is, as they were delivered at the stockyard. The objection on the ground of misdirection went to some observation made upon the testimony of the overseer's wife. This can be no ground for a new trial, when the jury had the whole of the evidence laid before them, to draw their own conclusions. The evidence of that woman really did not bear upon the issue on the pleadings, but merely went to shew that Kenyon had some interest in the cattle although it might also have supported Mountain's story, by furnishing a notice for Kenyon's reluctance to deliver. The observations already made shew that even if Kenyon's evidence was rejected, there was enough other proof to sustain the verdict, if the jury believed it.

Then lastly it was objected that the learned Judge improperly told the jury that there was evidence to go then that the cattle sold by the auctioneer were the same cattle as those sold by the plaintiff to the defendant. We think however that there was sufficient evidence to draw the conclusion which the jury have formed. The identity of the cattle was not issue; but what damage had the plaintiff sustained by breach of the defendant's contract, and the evidence of the auctioneer was produced to shew what was the market value, by auction, of similar cattle. It was proved that cattle of the same description, running on the same station, had been advertized for sale, and sold by the auctioneer at the insistence of the plaintiff. This was sufficient evidence from which the jury might reasonably draw the conclusion that they were the same identical cattle, even if the precise identity of the cattle was material upon a question of damages sustained by the plaintiff by the breach of contract.

One of the alternatives of the motion was to reduce the amount of the verdict, but upon the proof before the jury, we cannot say that there was any excess in their calculation of the damages.

On the whole we see no grounds for disturbing the verdict.

Published by the Division of Law, Macquarie University