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

Rodd v. Raper [1847] NSWSupC 49

assumpsit, breach of contract, fraudulent misrepresentation

Supreme Court of New South Wales

Stephen C.J., Dickinson and Therry JJ, 26 October 1847

Source: Sydney Morning Herald, 27 October 1847, in Supreme Court Collection, Vol. 2, p. 19

Before the full COURT.


This was an action of assumpsit; amongst other counts in the declaration there was a special count, setting out a contract alleging that the defendant bought of the plaintiff a certain number of cattle at 45s. per head, but when offered for delivery he refused to take them. To this the defendant pleaded, amongst other please, a plea of fraud, to the effect that he was induced to buy the cattle upon being fraudulently informed that they were fat, and of the plaintiff's breed; upon this issue was joined. At the trial in August last, it appeared that the plaintiff employed Mr. Mort, as his agent, in Sydney, to dispose of these cattle, writing to him that they would average in weight about 600 lbs. each; this letter was shown to the defendant, and shortly after they were sold to him at 45s. per head; and as the sale note described, "they were bought with all faults, and as they were." When they arrived near Sydney , and upon the defendant seeing them, he refused to take them. Mr. Mort upon giving due notice, resold them by public auction at 35s. 6d. per head; and this action was brought to recover the difference in amount between the first and second sale, together with the expenses incurred in consequence of the latter. His Honor Mr. Justice Dickinson in directing the Jury, told them, that before they could find for the defendant on the plea of fraud, they must be satisfied that a misrepresentation was made both as to the breed, and as to the fatness . The Jury, however, found for the plaintiff on the other issues, and on the plea of fraud found the following facts, viz. --- that a misrepresentation had been made as to their fatness, but not as to their breed; that they were not fat cattle, and that the fatness was the inducement to enter into the contract, upon this issue it was also agreed, that the Jury should find a verdict for the plaintiff, with liberty reserved to the Court to enter it for the defendant, if the Court should be of opinion that legally the plea of fraud had been made out. The Court was now moved accordingly, --- and in addition to the motion, pointed to the special facts, it was attempted by notice to move, on other grounds, for a new trial; but the Court seemed inclined, at any rate in the first instance, to confine the defendant to show that the plea of fraud had been proved.

Messrs. FISHER and BROADHURST, for the defendant, contended that, supposing the plea of fraud had not been satisfactorily made out, then as the Jury have found on that issue for the plaintiff, and, moreover, on the same issue, certain facts --- which might be for the purpose of the argument, admitted to amount to a variance; and being a variance, the Judge who tried the cause, not having amended the record, the Court was therefore invited, notwithstanding that the Jury had found a verdict for the plaintiff on the issue, to give judgment according to the very right and justice of the case, being empowered thereto in the like case, by the 38th section of the 5 Victoria, No. 9. For the very right and justice of the case was with the defendant --- he had been induced to buy cattle upon a fraudulent misrepresentation, that they were fat, --- and the Jury found they were not fat; and this fraud would relieve him of his contract. The following cases were cited:- Guest v. Elwes, 5 A. and E., 118; Mash v. Denham, 1 Moo. And Rob., 442; Schneider v. Heath, 3 Q.B.; and Fuller v. Wi,lson, 3 Campb., 505.

Messrs. MICHIE and LOWE appeared in support of the verdict on the issue on the plea of fraud; and by whom it was contended that the state of facts found by the Jury would not alone warrant the Court now to set aside that verdict; for even the very wide and extended meaning endeavoured to be given to the words of the statute, viz., the very right and equity of the case, would not assist the defendant: for the Court to do what is now asked of them to do, the Court must presume that which is not found, viz., --- that the plaintiff was guilty of fraud in making the representation. A test to discover whether the Court could thus equitably interfere upon the very facts found, would be to turn these facts into a technical form in the shape of a plea; and being thus put into a plea, it would be asked whether such a plea would be good upon demurrer; it was submitted that such a plea would be no answer to the action. Again, another argument was used, viz., whether supposing by striking out in the plea of fraud, the words "false and fraudulently," would the plea be good also on demurrer. The following cases were cited:- Foster v. Charles, 7 Bing. 105; Hales v. Milward, 8 Taunt; Fling v. Tobin, M. and Malk. 367; Fuller v. Wilson, 3 Q.B., 58; Collins v. Evans, 13 L.J., 2. B. 180; Omerod v. Huth, 14 L.J.; and Barley v. Water, 15 L.J., 2 B., 369.

Mr. FISHER was heard in reply, and upon Messrs. Michie and Lowe being called upon to argue the point, whether the Court should not entertain also the motion for a new trial, some argument ensued, and eventually

His Honor the CHIEF JUSTICE, in delivering judgment, said, that he and Mr. Justice THERRY agreed, that in justice to the Jury, that the case ought to be sent down again to a Jury; and whichever way the Court decided, the decision was open to some difficulties. The Jury, in the way in which they had found the facts, had not found enough for the Court to have jurisdiction in the matter, they had omitted to find one most material and essential fact, viz., --- whether the contract was entered into through a false and fraudulent misrepresentation made by the plaintiff. His Honor further intimated, that he was of opinion that the plea of fraud would be no answer to the action, unless it could be shown by evidence that the representation as to the fatness, was false to the knowledge of the plaintiff, on the authority of a case reported in 8 Car. and P. 532. The case would therefore be sent down for a new trial, without hearing the motion for a new trial.

His Honor Mr. Justice DICKINSON agreed with the rest of the Court, that the Court could not now, upon the finding of the facts, give judgment according to the very right and justice of the case for the reason above assigned; and that that finding ought to be treated as a nullity; but still it was open to the defendant to move for a new trial in the ordinary way, and in the way proposed, on the ground of misdirection; and provided that the Court should be of opinion that there had been a misdirection, then of course a new trial would be granted; and under these circumstances only ought the case to be sent back to a jury.

Published by the Division of Law, Macquarie University