[ convicts , assigned servants lent out – work and labour – stonemasonry]

Walsh v. Prout

Supreme Court of New South Wales

Dowling C.J., 16 February 1842

Source: Sydney Herald, 17 February 1842

This was an action for work and labour, as a stonemason. Mr. Foster and Mr. Broadhurst appeared for the plaintiff, and Mr. Windeyer for the defendant, who pleaded a set off for materials found by the defendant for the carrying on of the labour . The circumstances of the case were these : - the defendant had agreed to pay the plaintiff at the rate of a pound a perch for building the walls of a bridge; the plaintiff was to find masons, quarrymen, and lime; to do the work according to the plans and specifications ; to be paid weekly to the amount of work done; and Mr. Prout was to remove the stone from the quarry to the work. – The set off of the defendant consisted of the labour of the assigned servants of Mr. Prout's , who had, for nine or ten months, assisted the plaintiff in the execution of the work. The contract as above and the execution of the job having been proved on the part of the plaintiff , the defendant called various of his assigned servants to show that they had at different times, and at different periods, assisted in the work, which according to the contract, the plaintiff alone should have performed. It was also endeavoured to be shown that, during the whole performance of the work, as many as two men of the defendant's had constantly been thus engaged , and for that labour the defendant charged £125, which constituted the set off pleaded.

            Mr. FOSTER contended, that the labour of these men had nothing to do with the contract, which had been declared on an proved, and that that labour was performed for another purpose, and upon altogether a different arrangement from any that had been explained by the other side, this he would prove, which would be a full answer to the defendant's attempt at a set off.

            A man named Dillon proved an arrangement to have taken place between   the defendant, that as the defendant's men could not bring the stone fast enough from the quarry, for the plaintiff's men to work it up at the bridge, the plaintiff's men were to assist the defendant's in carrying the stone from the quarry on condition of those of the defendant, in return, assisting the plaintiff in building the bridge.

            Mr. FOSTER then addressed the jury for the defendant, and said that the evidence of Dillon had placed the truth of the matter beyond dispute, and that it was clear the finding of men by the defendant for assisting in building the bridge, was for the accommodation of the defendant himself. If there had been any contract to provide men for which Mr. Prout was to charge, there would, in all probability, have been an agreement in writing; and the defence looked very like a shuffling attempt to slip out of a just claim. The learned gentleman therefore confidently relied upon the Jury to return a verdict for the plaintiff to the amount of his claim.

            His Honor summed up, and the Jury returned a verdict for the plaintiff, to the amount of £85 9s. 11d.

            Attorney for the plaintiff, O'Reilly; for the defendant, Norton.                

[ motion for new trial - work and labour – building – bridges – set-off ]

Walsh v. Prout

Supreme Court of New South Wales

Dowling CJ, Burton and Stephens JJ, 16 April 1842

Source: The Sydney Herald, 19 April 1842

            This was a motion for a new trial. The plaintiffs, in the sittings after last term, had brought an action for work and labour, and materials for the same, supplied in building a bridge for the defendant. The work was done on an agreement that the plaintiff should build the walls of a bridge, at the rate of a pound sterling per statute perch. Walsh was to find masons, quarrymen, and labourers, as well as lime, and to be paid weekly for the work done in the interval. The defendant was to remove the stone from the quarry to the bridge. The defendant had pleaded a set-off for work and labour, and for materials.

            The labour mentioned in the defendant's plea, was furnished by Mr. Prout to assist the plaintiff's men in executing the work; whereas, according to the written contract, there were only to be employed in carrying the stone from the quarry back to the work. The plaintiff offered evidence at the trial to show that the labour was supplied by the defendant under these circumstances, that as the defendant's men could not bring the stone fast enough from the quarry to keep the plaintiff's men at work, it was agreed that the plaintiff's men should assist the men of the defendant in bringing the stone from the quarry, on condition of the latter, in turn, assisting the plaintiff's men in the performance of the work. This evidence being admitted, the plaintiff had a verdict.

            Mr. WINDEYER, for the defendant, now moved for a new trial, on the ground that the above evidence, varying in terms of the written agreement, should not have been admitted on the trial.

            Mr. POSTER and Mr. BROADHURST opposed the motion.

            New trial refused.

            The Court, after taking another new trial motion of little interest, adjourned at five o'clock .