[contract, breach of – Goulburn – sale of goods, non-delivery]

Bradley v. Shipley

Supreme Court of New South Wales

Willis J., 22 June 1840

Source: Australian, 27 June 1840

            TUESDAY - before Mr. Justice Willis, and Messrs. J.E. Manning and W. Dawes, assessors.

Bradley and another v. Shipley. - This was an action upon a special contract. The plaintiffs are proprietors of a large water-mill at Goulburn, and the defendant is a small farmer residing at Sutton Forest. On the 26th March, 1839, the defendant contracted to supply the plaintiff with four hundred bushels of wheat, upon payment of twelve shillings per bushel, the wheat to be delivered to the plaintiffs, at the farm of the defendant, in four months from that date, in quantities of one hundred bushels per month. The breach alleged, was, that the defendant had failed to perform his contract. To this, the defendant replied, that as to one hundred and ninety-two bushels of the four hundred, he had in fact supplied the plaintiff, and, for the residue, no notice of the willingness of the plaintiffs to receive the same had been given [??]. The question upon which issue was joined, was, whether notice had been given to the defendant, and whether he was always ready and willing to deliver the wheat according to his contract. It appeared from the evidence of a carrier, named Daniel Hancock, that he was employed by the plaintiffs in the latter end of March, 1839, to draw four hundred bushels of wheat to their mill at Goulburn, from the defendant’s farm, and that at various times, up to the end of May, he had received from the defendant’s overseer, about two hundred bushels in the smut, for the cleaning of which at the mill, a deduction in the quantity was to be allowed. That he afterwards, in the month of June and July, called at the defendant’s farm for wheat, but could get none, although he saw bags of wheat being carried off the premises by other persons. On the day after the ploughing match at Goulburn, which was on the 30th July, the witness Hancock went for the last time to ask for the wheat, and was told none was ready. The defendant was then absent at Sydney, but his overseer was present. The witness admitted in his cross-examination, that he was not empowered by the plaintiffs to pay for the wheat at the time he asked for it, but that he had carried to the defendant’s farm, money in checks from the plaintiffs, as payment for the two first loads he had taken. Another witness was called, on the part of the plaintiffs, to prove that about the end of July and August, 1839, wheat was worth at Goulburn from £1 to £1 2s. per bushel. On the part of the defendant, counsel applied for a nonsuit, on the ground that no notice had been given to the defendant of the plaintiff’s willingness to receive, and readiness to pay for the wheat in question, the implied terms of the contract being payment on delivery - and secondly, that the plaintiffs were bound to make their legal demand of the wheat, on the 26th July, after which, the contract was void. His honor considered both points raised, fatal to the case, and that there fore the defendant was entitled to a nonsuit. Nonsuit entered accordingly. Counsel for the plaintiffs, Mr. Broadhurst, for the defendant, Mr. Foster.