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

Daveney v. McDonald [1857] NSWSupCMB 4

contract, misrepresentation

Supreme Court of New South Wales, Moreton Bay

Milford J., 22 January 1857

Source: Moreton Bay Courier, 24 January 1857

(Before a special Jury of Four.)

DAVENEY v. McDONALD

This was an action on a promissory note for £168.13s.4d. for land purchased from the plaintiff by the defendant.

Plea-fraudulent representation on the part of the plaintiff.

Mr. Pring appeared for the plaintiff; and Mr. Faucett and Mr. Milford for the defendant.

Mr. Pring having opened the pleadings, Mr.Faucett, on whom devolved the burden of proof, went at considerable length into the circumstances attending the alleged purchase. He contended that the land mentioned in the agreement was not that pointed out to the defendant as for sale; that the land was described by the plaintiff as having a permanent waterhole, which was found not to be the case; and that it was through the misrepresentation thus given that the defendant was induced to sign the agreement.

John McDonald, the defendant, was sworn and examined: I keep the Queen's Arms Inn, Ipswich. I remember the 29th Sept., 1855. On that day Mr. Daveney came to my house, and asked me if I would buy some land which he had for sale at Bundamba Creek. I said I would, if it answered me. He described it as a good piece of land, and as clear of timber. He said there was a permanent waterhole on the ground. He produced a plan, but I said I did not understand anything about the plan, and that I would rather go and see the ground. We went to the land that day. When we reached the place, Mr. Daveney said, "You can see the land as well as I can," and he at the same time pointed it out to me. The land he pointed out was nearly clear of timber. He then showed me a waterhole on the land he described as his. On the afternoon of he same day I met Mr. Daveney at Mr. Macalister's office, when the agreement for the land was signed. The agreement was drawn out when I arrived at Mr. Macalister's office; I signed the paper without reading it. Mr. Daveney then suggested I might as well draw out the promissory notes. The first note was drawn out by Mr. Daveney, and the two others, I think, by Mr. Macalister. I then left the office. About fourteen days afterwards, my fencing stuff being ready, I went out to the ground with Mr. Vigors, who was to show the men my boundary line. He pointed to some ground as mine. I said, turning to Mr. Faircloth's fence, "This is the piece of ground I bought from Mr. Daveney." Mr. Vigors replied, "Why that's mine." I repeated that it was the piece I had bought, when he laughed, jumped on his hores, and rode away. I wrote to Mr. Daveney, informing him that he had misrepresented the ground to me. I never received an answer. I wrote a second time, when I found the first letter was not answered; I stated that I would stop payment of the promissory notes. He came to my house afterwards for payment of the notes; I told him I would not pay them, as he had made a misrepresentation of the land. He said, "Why don't you cut it up in small portions, and sell it?"

The defendant was cross-examined at great length by Mr. Pring. He prevaricated a little as the words used by Mr. Daveney in speaking of the permanent waterhole.

By Mr. Faucett: Mr. Daveney, when at my house, guaranteed that there was a permanent waterhole on the ground. I did not understand Mr. Pring when he asked me the question.

Three other witnesses were examined for the defence; but their evidence principally related to the quality of the land in question, which was descried as inferior.


This concluded the defendant's case.

Mr. Pring replied to the arguments set up for the defence. The plaintiff was charged in the plea with fraud and his character being at stake, great caution was necessary on the part of the jury. He contended that there was no evidence to support the plea of fraud. He alluded to the contradictory evidence given by the defendant as to the water-hole. There was a water-hole between Mr. Vigor's ground and that of Mr. Daveney's belonging to one as much as the other. There was a difference between saying "There is a water-hole," and "I'll guarantee you a waterhole." There was certainly some mistake about the cleared land; but there was no fraud. The plaintiff simply held out his hand, and said "There is the land." There had been great carelessness shown in the transaction by plaintiff and defendant; and the attorney ought not to have allowed the agreement to be signed without reading it over to them.

Phillip Doyne Vigors: Know the parties in this case. Mr. Daveny and myself divided a certain part of the Booval estate between us - from 28 upwards. I had the first choice, and selected 28 and 29, Mr. Daveney chose 30 & 31, and I afterwards chose 32, Mr. Daveney taking the one numbered 32. In the month of November 1855 I was on the land with Macdonald. He and I had some conversation about the fencing of our land, and a man named James Cooper was there as fencer. Macdonald said he wanted me to go and show him exactly were the pegs stood, in order that fencing might be commenced. I agreed to go, and he called on me one afternoon, saying that Cooper would meet us on the ground. We rode together from the town, and I went first to the corner of No. 28, close to Faircloth's fence. I rode along the northern boundary of 28 and 29 until I came to the third government peg between 29 and 30. I showed Macdonald the peg, and said, "This is where your land commences," and we then went down to the creek along the line dividing Nos. 29 and 30. When we got to the creek I showed the peg and the marked tree at the bottom. I do not remember that any conversation took place. We went back again to the north boundary, and rode along the top of Macdonald's land till we came to the peg dividing 31 and 32. There I dismounted, and told Macdonald that his land went 6 chains further, but that I could not find the peg. I paced 130 yards, and looked for the peg, but could not see it. This was the division between allotments 32 and 33, and I told Macdonald that his land ran down towards the creek from that point, Cooper was with us at the time. I think it was then that Macdonald made an observation, the only one I remember; it was "Then I take in that lump of swamp oaks; by Jove! I thought I had escaped them." The oaks are in the upper corner of the allotment 32. We then entered into conversation about fencing the land, the price and so on, I said that I was willing to pay what was agreed upon, if reasonable. I then rode away by myself, leaving Macdonald there. When we were at the peg between 29 and 30 Macdonald did not turn round to me, point to the allotments 28 and 29, and say "That's the land which was sold to me," I have no recollection of it. I have some slight recollection that when we were at the peg between 32 and 33, that he said "I thought the other land was mine, meaning, I supposed , 28 and 29. Some time after this, I met Macdonald in the street at Ipswich, and asked him whether he had made the arrangements about fencing, and I recollect his saying, that he had not, as Mr. Daveney had shown him the wrong land. He said he had written to Mr. Daveney to ask him to come to some arrangement about it, and that, if I went on with the fencing he would make it all right. At one time he said something about my land being better than Mr. Daveney's and that he should like to have it, or something of that sort. There was a water hole near the peg between the allotments 28 and 30. I had often seen it, and I never saw it dry during the eighteen months that I knew it. The line between 29 and 30 could run through the centre of the water hole.

Cross-examined by Mr. Faucett: 28 and 29 were better allotment than the others; I preferred them. There's no water-hole on 31, only part of one on 30. I never saw, to my recollection, a government peg at the water-hole, bit I can say that the water-hole is between the two. The allotments are now fenced by me, and the fencing divides the water-hole.

Charles Beevor Daveney: I am the plaintiff in this action, I was at the defendant's house in September 1855, and he expressed his regret at not having purchased a 100 acres of the Booval estate which I had offered him for a £1000. I said I still had a portion of it left, on the Bundamba Creek, and produced a map of it. I pointed out to Macdonald my three allotments, 30, 31, and 32; the price was discussed, and I named £500 for it. He said he had not got the money, and I said that I would make the terms easy. I said I was willing to take it in three equal divisions at 5, 10, and 15 months. He said he would take it, and that he would go out with me to a fenced allotment of Faircloth's, and from there he could judge of the lay of the land, as I could not attempt to show him the boundaries. Subsequently we went to the land, and I took him to the spot mentioned - the corner post of Faircloth's 15 acres, I pointed towards the creek, and I said to Macdonald "There is the land; now you know as much of it as I do." We stayed a few minutes. and then we went down to the water-hole. I had previously told him at his house that there was a water-hole on the land, which might easily be made a good one. There was water in the hole when we went down to it. We then went homewards. I don't remember that anything else took place on the ground. We afterwards went to Macalister's office, where an agreement was drawn up. I received two letters from Macdonald, I don't know whether I replied to the first letter, but I replied to the second through my solicitor.

Cross-examined: Mr. Macdonald agreed to give me £500 for three allotments in the first place, before he had seen it. I did not give him any description of the land at the inn, but he told me that he had been shooting up the creek, and knew the country well. I think I told him that it would not cost him much for fencing, as he had Mr. Vigors on both sides of him. The quantity of the land was stated to be 40 acres. I believe I have given this same statement of the affair before. When we went out to see the land I took him to the corner post of Faircloth's land. I never said a word, at any time, about the land being clear or about its being lightly timbered, either on the land or at the inn.

After some slight cross-examination of this witness on the part of the Jury, Mr. Pring announced that the case for the plaintiff had closed.

Mr. Faucett proceeded to reply. He contended that the evidence adduced in upholding the pleas of the defendant, had not been contradicted in one single item by the evidence of the plaintiff and his witnesses. The learned counsel commented at some length, and very forcibly, upon the discrepancies which had been noticeable in the evidence of the plaintiff, - upon the demeanour of the two parties in the box, - and the various points which had arisen during the conduct of the plaintiff's case.

His Honor lucidly summed up the evidence on either side, and the jury retired to consider their verdict.

After an absence of nearly an hour, the jury returned a verdict for the defendant.

This was the only cause on the list, and the business of the assizes was therefore completed. The court rose at seven o'clock.

Published by the Division of Law, Macquarie University