[auctioneer – sale of goods]

Hebblewhite v. Delany

Supreme Court of New South Wales

Stephen J., 25 February 1841

Source: Sydney Herald, 2 March 1841

SUPREME COURT. – CIVIL SIDE.

As the following case is of considerable importance to the mercantile interest, as well as to the auctioneers and their customers, we give the following outline of the case, as being more ample than that given by our contemporaries.

            Thursday, February 25th, - Before His Honour Mr. Justice Stephens with Captains Moffitt and Moore, Assessors.

            Hebblewhite and another v. delany. – This was an act on brought by the plaintiffs to recover £98 17s. 5d. the deficiency, on the resale of some soda purchased by the defendant in the month of January, 1840, under the following circumstances:- It appeared that the defendant bid 5d. per lb for 49 casks of soda, which was more than the market price, and obtained an order for the delivery of the same at Botts’s Wharf; but called a day or two after on the plaintiffs and alleged the soda was not there. Upon this the plaintiffs sent down one of their clerks to the Wharf and found the soda still there. Notice was then given, that if the same was not removed within one week, according to the conditions of sale, the same would be re-sold at the risk of the defendant. In accordance with such notice it was se-sold, and the sum of £81 13s. 6d. less, was realized by the same, which, with the expenses of commission of re-sale amounted to the sum now claimed by the plaintiffs. The defence set up was, that defendant had sent several times for the soda but could hear nothing of it, nor find any one to deliver the same : but that he was always ready and willing to have the same if the plaintiffs had the soda to deliver. Proof of the soda having been on the Wharf at the time of sale, and the deficiency of re-sale having been adduced on the part of the plaintiffs. The Assessors found a verdict for the plaintiffs in the amount claimed, £98 17s. 5d.

            Counsel for the plaintiffs, Messrs. Foster and Hustler; attorney, Mr. E. D. O’Reilly. Counsel for the defendant, Mr. Windeyer; attorney, Mr. G. L. Poignand.

Stephen J., March 1841

Source: Sydney Herald, 8 March 1841

New Trials. – Hebblewhite and another v. Delany. – This was an application for a new trial. It appeared that a verdict had been returned for the plaintiff subject to the decision of the following point which had been reserved at the time of trial, viz. – Whether the contract set out by the declaration, which by the statute must necessarily be in writing, had been made out by the evidence brought forward. Judge Stephen read over the whole evidence in the case from his notes, and stated the manner in which he had put the case to the jury. After counsel for and against the application, the Court ordered a nonsuit to be entered. The rest of the day was employed in hearing motions of course and arguments on demurrers.