[ non-performance of agreement - wheat   ]

Crossley v. Harris

Court of Civil Jurisdiction

  Bent J.A., 25 October 1813

Source: Court of Civil Jurisdiction Proceedings, 1788-1814, State Records N.S.W, 5/1109-390.

George Crossley of Sydney             Plaintiff

John Harris of Sydney                      Defendant

Writ of ₤100.0.0.   Sterling for non performance of a certain agreement dated 12 June 1813, made and entered into between the said John & the said George for the payment of a certain sum of money and for goods sold & delivered by plaintiff to defendant at his request.

The defendant appears in person_& denies a course of action_.

Richard Hughes   sworn & examined for the Plaintiff says, I am subscribing writing to the due & produced [?] I saw John Harris put his mark to it; it was had over to him before he put his mark to it either by Mr Crossley or myself .   I rather think it was by me.   The defendant was quite sober & seemed to understand it perfectly_.   It was executed at Pliss [?] house.   I write one or two letters to defendant by Pliss desire, calling on him to fulfil his agreement_.   Houseseller   upon Mr Crossley after demand was made, I heard him say the wheat was stale while he was in gaol _.   Mr Crossley said that he knew it was not true.

The agreement is put in & read_.

Richard Hughes cross-examined

For the deft says:                                   This agreement was entered into at Mr Crossley's house in the evening I saw no grog [?] drunk at the time. I did not perceive that Harris had drunk any thing that day.   He was in debt at the time to Mr Crossley .   That has been paid by Mr Harris I believe_.   I think the agreement was read by myself .   After the reading & before the signing Harris went out by himself and came in again.   He was to finish all the wheat he did not want for his own use, & if he sold any to any other person he was to forfeit 100 pounds.

Not any wheat has been delivered to Mr Crossley pursuant to this agreement.  

Patrick McMahon sworn and examined for the Plaintiff says, about the time that the third defendant was put in gaol at the suit of one Fond, & he was under arrest , I was present at a conversation which took place between the Plaintiff and Defendant   at the plaintiff's house_.   He was taken them by his own desire to see if Crossley would discharge this execution. He asked Mr Crossley to advance the money should he be arrested _ Crossley said he would pay for it as he received it_but would not advance any.   This was some time in June.   He was in custody two or three weeks_I read over to Harris the agreement_ he said he would send the wheat if Mr Crossley would advance the money.

John Dougan    sworn examined for the plaintiff says/ I was employed by Harris in the month of July last to thrash out wheat for him_ I threshed out for him 89 bushels & one half with Samuel Winter.   That was the whole he possessed at the time_: Winter and I had fourteen   bushels of this wheat_ Mr Hobby had three or five_.   I believe the rest was delivered to [?] cook his wife's son_. I heard Harris frequently say he had entered into an agreement to let Mr Crossley have 100 bushels of wheat.

Questioned by the defendant says:

I heard Harris had found some wheat seed & his land _Harris had a large family_he has a wife with four or five children_.

Benjamin Cook sworn and examined for the Plaintiff says/ I brought down to the best of my opinion 45 bushels of wheat from Harris to Sydney_to his wife's house.   I do not know what has been done with it_I brought it down at different times_it was a good bit before the races. I never heard Harris say how the wheat was disposed of.

John Mitchell sworn & examined the Plaintiff says, I was present some days ago at a conversation between the Plaintiff and defendant_.   Defendant said he had not supplied Mr Crossley with wheat as he had agreed to _ and that he hoped Mr Crossley would be as easy with him as he could_.   He agreed to give Mr Crossley ₤50_ It was his own offer_I drew up a confession to that effect but he walked off without signing it.   I recollect Mr Crossley telling him; if he would go and bring 100 bushels of wheat in the market , he would pay him seven shillings a bushel for it_.

Questioned For the Defendant

Says:                                         When Harris came in he   addressed Mr Crossley _.   He said he came to see what could be done _ it was a hard case_under this penalty that he laboured under_that he should have to pay if he was sued for.   That he had certainly entered into the agreement Mr Crossley told him that money he had been paying for wheat, which was more than he agreed to let him have it for_Mr Crossley said he supposed this was the reason of his not letting him have the wheat_Harris said will let us half it_. The confession was drawn up_.   & he appeared to sign_but he afterwards walked off.

The plaintiff closes his case_.

The defendant's statement is read _.

Samuel Witney sworn and examined for the deft says/ I assisted Dougan to thrush defendants wheat.   There were 89 ½ bushels threshed out by us.   We received nine bushels of this   threshing _ Harris sowed an indescribable quantity that season.   I lent him thirteen bushels of wheat myself to seed his land _.   He paid me back five bushels: He sowed ten acres with wheat afterwards _ I suppose at that time it won't take two bushels an acre_.   While Harris is in gaol his government man was taken up on a charge of felony.   His woman left the place at the same time_.   His farm was left without any person to take care of it _but this was before we threshed out the wheat. I believe the wheat given to Mr Hobby was on account of   Paul Lutherborough whose wheat was burnt by accident .   I subscribed three   bushels myself. We all subscribed_.   I do not consider that out of the 89 bushels, Harris could have fifty for his own use. Harris lives in Sydney & did when Cooke brought down the wheat.

The witness withdraws

The defendant closes his case

The Court after mature deliberation gives Judgement for defendant that this suit be dismissed

The Court has adjourned until the Morrow of ten Clock

  and

By the Court

Ellis Bent

Judge Adv