Skip to Content

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

Wilkie v. Peberdy (1844) NSW Sel Cas (Dowling) 85; [1844] NSWSupC 15

contract, consideration

Supreme Court of New South Wales

Dowling C.J., Burton and Stephen JJ, 15 April 1844

Source: Dowling, Select Cases New Series , Vol. 2, S.R.N.S.W. 2/3468, p. 23

Where a defendant agrees to pay the plaintiff a sum if the plaintiff gives a third party possession of a dwelling house, there is prima facie consideration of the promise to pay.*

Special assumpsit. The declaration stated that at the time of the promise declared upon, the plaintiff was in the possession of a certain dwelling house, which he had then lately repaired and improved at his own cost, and one J. Schofield, being desirous of entering into possession thereof, which the plaintiff was willing to allow, on being indemnified for what he had laid out for improvement; thereupon on 28 June 1841 in consideration that the plaintiff at the request of the defendant would give up possession so Schofield on the 1st July ensuing, the defendant promised to pay the plaintiff within one year from the 1st July the sum of £75. Averment of performance of plaintiff's part by letting Schofield into possession, with notice thereof to defendant and breach by the defendant in not paying the money within the time agreed.

Pleas. 1st, non assumpsit and issue thereon. 2nd, that there was no consideration for the promise by the defendant, for the plaintiff was legally bound at the time of the promise to give up possession to Schofield on the day mentioned, he being entitled as landlord to enter into possession, and that plaintiff had not any right in law to withhold possession until he was indemnified for improvements, and which improvements were not made by the plaintiff at the request either of the defendant or of Schofield, concluding with a verification.

Demurrer that the general statement of "no consideration" for the promise declared upon is insufficient and should set forth specially the facts and circumstances from which such conclusion could be drawn, so as to enable the plaintiff to traverse the supposed facts from which the defendant drew the conclusion; it being quite consistent with the plea that the plaintiff had a complete legal right to be indemnified for the repairs although he might not have any legal right to retain possession of the house until payment was made for them.

This demurrer was argued last term and it was contended for the defendant that the plea was quite good enough for the declaration, which being general, was sufficiently answered by a general denial of the consideration.

Dowling C.J. We have looked into the points upon which the case turns, whether the possession of the house as stated is sufficient prima facie consideration to support the promise declared upon and secondly, whether, if it be so, the plea is sufficiently explicit to put the plaintiff to take issue.

We are of opinion that the possession by the plaintiff of the house at the time of the promise must, until the contrary is shewn, be taken to be a lawful possession, and as the consideration for the promise is an act to be done by the plaintiff at the request of the defendant, though a stranger, the declaration is well enough. The cases Jones v. Jones (1840) [ Jones v. Jones (1840) 6 M. & W. 84, 151 E.R. 331 ] and Butcher v. Steuart (1842) [ Butcher v. Steuart (1842) 9 M. & W. 405, 152 E.R. 171 ] are authorities in principle to this point. Looking at the declaration in that light, we think the plea has not gone far enough, in merely denying the consideration for the promise. Consideration or no consideration is a question of law arising from the facts stated; and we think it was incumbent on the defendant to shew in his plea, how and under what circumstances there was no consideration. He has merely raised an issue of law instead of fact, and does not enable the plaintiff to take issue on the facts on which the supposed law arises.

It may be that the defendant is a stranger and unacquainted with the rights of the plaintiff, as between him and the landlord, but as he has undertaken to deny consideration and assents to know that the plaintiff was legally bound to give up possession to the landlord without being reimbursed for repairs, he ought to shew how he was so bound. It is consistent with the plea, that the plaintiff had a complete legal right to be indemnified, although he might be bound to give up possession to the landlord. The plea admits that the plaintiff was in possession at the time of the promise and that he gave it up; and there is no distinct negation of all possible legal or equitable rights which the plaintiff might have to receive the money. If the defendant had shewn that the plaintiff was a trespasser his plea might be well enough, and put the plaintiff to deny the fact. The statement that the plaintiff was in fact in possession at the time of the promise makes out a prima facie case, and the plaintiff was not bound to shew any title other than that of possession. This is not like the case of Brealey v. Andrew (1837) [ Brealey v. Andrew (1837) 7 Ad. &E. 108, 112 E.R. 411 ] cited for the defendant where the Court was called upon to presume a consideration not stated in the declaration.

Here there is a prima facie consideration stated which is not sufficiently traversed by the plea, and we think the demurrer must be allowed, but the defendant may have leave to amend on payment of costs.

Published by the Division of Law, Macquarie University