Fotheringham v. Cooper. - This was an action brought to recover the sum of £150 for work and labour done, under the following circumstances: - Messrs. Cooper, Holt, and Co., were owners of the ship General Bourke, which in the year 1834 stood in need of some repairs previous to her being sent upon a whaling voyage; a survey was held upon her, when plaintiff (who happened to be present), offered to make her tight and sea-worthy for the sum of £150; defendant, at the advice of Captain Church (who seemed to possess considerable experience in maritime affairs), accepted plaintiff's tender, and the vessel was hauled up on the Patent Slip.  the necessary repairs, as plaintiff alleged, were then completed.  But when she was taken off the slip, and hauled into the stream, she leaked considerably - that circumstance, nevertheless, did not prevent her gong on he proposed voyage, it being supposed that the leak would close up on the passage; she however continued to leak the whole time of being out, and in consequence defendant refused to pay the sum agreed upon, the work not having been done agreeably to the contract.  Previous to her going to sea she was surveyed by a company connected with an Insurance Office, who did not charge any extra premium for the trip.  But it was shewn in evidence that during the time she was out it was necessary to pump her twice a-day.  When she returned in 1835, some more repairs were done to her, and she is now upon another trip to the whaling ground.  The chief point in dispute appeared to be the technical meaning attached to the terms make her ``tight and sea worthy;" some of witnesses being of opinion she was made so according to the usual acceptation, whilst one witness in particular contended that to be tight she ought to have been like a bottle.  When pltff's. case had been gone through, Mr. Foster submitted tot he Court on the part of defendants, that there was no case to go to the Jury, as plaintiff had failed in showing that he had completed his contract, he having been employed for a specific purpose, viz. to make the vessel tight and sea-worthy.  It was not the plaintiff's labour they required, but the vessel to be put into good repair.  He then quoted a case from Barnwell and Cresswell, wherein a party had undertaken to do a certain work, but it was shewn that the work was not complete; and after some further argument he submitted that plaintiff ought to be nonsuited.  Mr. Justice Burton thought there was a sufficient case to go to the Jury, but gave leave to Mr. F. to move to enter a non-suit.  The latter then proceeded with his case.

His Honor in putting the case to the Jury remarked to them, that although it had been alledged that she leaked before proceeding to sea, yet no extra insurance was charged for her.  It appeared also that she had been five or six days on the slip, and eight or ten men were employed upon her.  If then she was not sea-worthy, it would be for them to say how much plaintiff was entitled for the work he had done.  The Jury having retired for a short time, returned with a verdict for plaintiff, damages £180, being the amount of the contract with interest for two years.

Mr. Foster then observed, that the particulars of demand only went for £150.

His Honor replied, that he thought the verdict must stand.

Dowling A.C.J., Burton and Kinchela JJ, 13 July 1836

Source: Sydney Gazette, 19 July 1836

WEDNESDAY, JULY 13.

Before the three Judges sitting in Banco.

Fotheringham v. Cooper - This was a motion grounded upon an action of assumpsit, brought to recover the sum of £150 for work and labor done.  A verdict had been given for the plaintiff for the amount claimed, together with £30 as interest.  A rule nisi for a new trial had subsequently been obtained, and was now argued.  When Counsel had concluded, His Honor, the Acting Chief Justice, said that he was of opinion that the verdict ought not to be disturbed.  As respected the contract, such convenants ought at all times to be liberally construed.  If defendant had made his stand before the vessel had left the harbour, then plaintiff must have either stood or fallen in the terms of his contract, but as he did not do that, but allowed the vessel to proceed to sea, he must therefore take the consequences.  As to the question whether the plaintiff was also entitled to interest, the learned judge, who tried the case, had told the jury that, if they considered plaintiff had been wrongfully kept out of his money, they might allow extra damages by way of compensation.  In this case when the plaintiff had made his demand, he was told, no; he must wait until they had heard from England, in order that they might ascertain whether any extra insurance would be charged.  The question then was, was he wrongfully kept out of his money?  He (the Chief Justice) thought plaintiff, in common justice, was entitled to go to trial.

The other Judges concurring in the opinion of their learned colleague, the rule nisi for a new trial was dismissed.