[contract, breach of – sale of goods – auction – new trial]

Lyons v. Munroe

Supreme Court of New South Wales

March 1841

Source: Sydney Herald, 13 March 1841

This was an action on the promises for the nonfulfilment of a contract alleged to have been entered into by the defendant having on the 23rd of June last, been the highest bidder for the following lots of goods, viz.—2 cases of curry powder at £6 per case, 6 bolts of country canvas at 22s. per bolt, 20 barrels of rum at 2s. 9d. per gallon, 20 bags of coffee at 9½d. per lb., 20 bags of ditto at 8½d. per lb., and 25 boxes of muscatel raisins at 8d. per lb. The total amount of these purchases being £737 17s. 7d. These goods had been severally sold in separate lots by the plaintiff at auction, and according to the conditions read at the sale, purchasers to the amount of £200 and upwards, were to pay for their purchases by approved bills at three and four months, also, that purchasers were to remove their goods from Campbell’s wharf on or before 27th June, or on their failing to do so, the auctioneer was to be at liberty to resell them at the risk of the first purchaser. It appeared that at the time of the sale, the auctioneer’s chief clerk, Mr. Purkiss, applied to the defendant to know whose indorsement he was to give, when he replied “cash if required,” on the following day, the 24th of June, a correspondence took place between the plaintiff and defendant, which was terminated by the defendant sending the plaintiff a laconic note, wishing him a good sale and a better mark, as he had declined taking his (the defendant’s) own bill at three months for the amount; in consequence of this intimation the goods were again put up to sale, and brought only £630 17s. 10d., from which the expenses of the resale amounting to £42 3s. being deducted left a balance of £149 2s. 9d., which the present action was brought to recover. It was proved, that these charges were those regularly made on a sale where the bills were guaranteed, which is the usual practice of auctioneers, excepting when a specific agreement is made to the contrary. Mr. Windeyer for the defence moved for a nonsuit on these grounds; first, that in one court the plaintiff had declared as for one entire contract, whereas it was laid down in the books, that every sale by auction was a separate contract; he submitted secondly, that if the court held that all the purchases made at the sale was only one contract, that the defendant was entitled to have it proved in the terms declared on. Another ground on which he claimed a nonsuit was, that the figures specifying the different quantities had not been filled in until after the sale, and no legal evidence had been given that the plaintiff had allowed defendant the time specified at the original sale for removing the goods, at the same time, he denied that his client had at all discharged the plaintiff from the original conditions of sale, promulgated at the time when the defendant purchased, as all that defendant’s note imported was, that plaintiff was welcome to go on re-selling according to the terms of the original sale.

            Mr. Foster, in reply, contended that all the purchases made by the defendant were, in effect, but one purchase, as he was entitled by his purchases to a certain amount of credit, and that by giving such credit, all the purchases by the defendant at that sale were linked together, and made part and parcel of the same transaction; he also cited a case to shew that the defendant was not entitled to a nonsuit on the first ground, as the plaintiff was no bound to set out the quantity, and that as the canvas and curry powder had sold for more at the sale than when originally sold, so that the defendant had gained rather than lost, in as far as these articles were concerned; and he contended that his client was discharged by the defendant having informed the plaintiff that he was determined not to complete the sale.

Mr. Broadhurst followed on the same side, and contended that the daily practice of merchants and auctioneers went to prove, that, although a number of different lots had been purchased, yet the whole was but one sale, of which the aggregate price, by the conditions of sale, was to be paid by bills at three and four months; and also that the defendant, by not inserting this plea in his pleadings, had shut himself from taking any advantage that might have been derived from it, had it been admissible.

            In putting the case to the assessors, his Honour remarked that the plaintiff was merely acting, in this case, for his employer’s interest, and that no blame was attributable to him; the whole question for them to try was, whether the defendant, by his note to the plaintiff, dated 24th June, had or had not declined completing the sale, and if so, then he was liable for the consequences. The assessors found a verdict for the plaintiff, damages £133. The Court then adjourned till Friday.

Dowling C.J., 17 June 1841

Source: Sydney Herald, 18 June 1841[1]

SUPREME COURT – Thursday.

[Sittings after Term. – New Trial Motions.]

Before the Chief Justice, Mr. Justice burton, and Mr. Justice Stephen.

SAMUEL LYONS V. DAVID MUNROE.

This was an action of assumpsit for the breach of an agreement for the sale of some goods by the plaintiff to the defendant, at auction. The trial took place before the Chief Justice.

            It appeared that on the 23rd of June last, the plaintiff put up for sale the cargo of the brig Louisa, said to be lying at Campbell’s Wharf. The sale was according to certain written conditions in the sale book, entered as the conditions of sale of the cargo of the brig Louisa, and was made in lots. The defendant gave his name at the sale as Captain Munroe; and as he bid for the several lots sold to him, the plaintiff’s clerk wrote down the defendant’s name in the sale book. The terms of sale were – under £50, cash; over £50, bills at different dates, subject to the plaintiff’s approval. All the goods sold did not come from the brig Louisa, and the defendant bought other goods at the same sale upon different terms. The good purchased were to remain at the wharf till the 27th, at the purchaser’s risk, unless previously removed. It did not appear upon whose account the sale was made.

            The plaintiff, on the 24th, wrote to the defendant, saying that he would act according to the conditions of sale, and would sell the goods at the defendant’s risk. The defendant, on the 25th, wrote to the plaintiff, offering his own notes for the amount of his purchase, and in case they were not accepted wishing the plaintiff a good re-sale; the plaintiff would not accept those terms, and on the 26th re-sold the goods; the goods were bought by the defendant for £737 17s. 5d.; at the re-sale they were sold for £588 14s. 10d.; the action was brought to recover the difference; the plaintiff abandoned his claim for the amount of the second sale, and the assessors found a verdict for the plaintiff – Damages £133.

            Mr. Windeyer, for the defendant, now moved to enter a nonsuit on several grounds; first, because the sale having taken place in several lots, and each lot having been sold separately, the contract ought to have been declared on severally, instead of jointly in one count. 2 Taun. 38, 4, Bar. and Adol. 77, 1 Stark, 426. Secondly, that there were other sales besides those of the cargo of the brig Louisa, all of which were declared on, as if they were the same contract, though purchased under different conditions of sale. Thirdly, that the weight and the total price of the goods were entered in the sale-book after the entry of the defendant’s name, in violation of the statute of frauds. Fourthly, that the re-sale, did not take place according to the conditions of sale.

            Mr. Foster and Mr. Broadhurst for the plaintiff, contended, that the defendant’s letter was a waiver of the conditions of sale, and that the plaintiff was therefore entitled to re-sell the goods as he had re-sold them; that the cases cited by the counsel for the defendant, only applied under the Stamp Act in England; that the description of the goods was alleged under a videlicet, and though there was evidence of two separate purchases by the defendant, yet no damages were given for the second purchase; that under the plea of non assumpsit, the defendant merely put in issue his promise to perform the contract alleged in the declaration; that by the terms of sale the wholesale of the different lots was knit together; that the objections were mere matters of form, and that justice had been done. 1 Chit. Plea. 345, 8 Car. and Payne, 78. Ros. on Evid. 48.

            Mr. Windeyer in reply, argued, that the plea of the statute of frauds, put in issue the bargain set out in the declaration; that the cases cited were not decided upon the Stamp Act; that a special contract had been declared on specially, and should be proved, while upon the proof there was plainly a variance, for that according to the contract, by objecting to one lot, the defendant could not repudiate the whole sale.

            The Chief Justice delivered the judgment of the Court, overruling the other objections, but deciding in favour of the defendant, on the ground, that there was a variance in the contract stated, and in that proved with respect to the articles which did not belong to the cargo of the Louisa; these two contracts were distinct, and they should not have been declared on together; the plaintiff at the trial might have amended, but as he had not pursued that course, and as the objection was quite beside the justice of the case, although in law the defendant was entitled to have the plaintiff nonsuited; the Court would grant the plaintiff a new trial with liberty to amend his pleading upon payment of costs.

Notes