[contract, breach of - damages, expectation - contract, termination for breach]

Archer v. Evans

Supreme Court of Van Diemen's Land

Pedder C.J., 6 October 1837

Source: Cornwall Chronicle, 14 October 1837

Mr. Stephen opened the case. This was an action brought by Mr. John Archer, against Mr. Wm. Evans, for breach of a special contract. The defendant had contracted with Government to supply bread to the establishments for the year; ending 31st March, 1837; he afterwards agreed with plaintiff to take from, and plaintiff to supply to him, 4,500 bushels of wheat, to enable him to supply his contract with bread; an agreement was mutually entered into that the wheat should be supplied in such quantities, and at such reasonable times as defendant might require; after the signing of this written agreement, a verbal one was agreed to, that the wheat should be supplied in quantities of 90 bushels per week; the payment to be made monthly; the contract price for the 4,500 bushels of wheat, was 10s. 8d. per bushel; defendant continued to take the wheat, according to agreement, until Sept. when the price having fallen to 4s. or 6s., and plaintiff having failed to supply the full quantity, according to the mutual verbal understanding, the defendant took advantage of that circumstance, and refused to complete his contract; and this action was brought to recover the amount of loss sustained by plaintiff thereby; for the difference between the contract price and that at which the wheat was subsequently sold.

Adolphus Frederick Rook, sworn. - I remember Mr. Evans entering into a written contract with Mr. Archer last year; plaintiff agreed to supply 4,500 bushels of wheat; no time was mentioned for the delivery of the wheat, before the papers were signed; there was an understanding between the parties, that Mr. Archer would not be able to deliver any for the first fortnight; he was afterwards to deliver 90 bushels per week, which Evans consented to; the quantity delivered was regulated by Evan’s order; it averaged 860 bushels per month; the wheat was delivered to Gullen, the miller, on account of Evans; the total quantity delivered to Evans up to the 9th Sept. was 1630 bushels; I remember, one day in Sept. he called at Mr. Archer’s store, and said, he wanted 600 bushels of wheat to send to the mill; I said, he should have given us longer notice as we could not supply it then, nor could the boat take it down, but that he should have it; he should not wait; he said he wanted it immediately; he enquired what quantity was remaining on the contract; I told him about 8,400 bushels; he said he wanted 3000 bushels to be delivered to the person who was with him; Evans was not then sober, and I did not pay much attention to what he said, as I did not think he was in a state to transact business; he was so intoxicated that I thought he did not know what he was about; I told him he had better see Mr. Archer; he had neither bags, carts, or anything to take it away; he wanted the 600 bushels then, and wished the remaining 3,600 bushels to be delivered to the order of his friend, who was with him - On my oath I did not “believe then, that he wished the 3,500 bushels to be delivered to his friend; I considered it as an idle joke; Evans told me always to deliver wheat to Gullen; I received instructions as to the quantities, sometimes from Evans, and sometimes from Gullen; I delivered in Oct., a bill of parcels to defendant; on 3lst March last, Mr. Archer had on hand, I think, 1,600 bushels unthrashed; there was a quantity thrashed; besides that he has been in the constant habit of purchasing wheat; Mr. A. was at any time able to supply the contract at the rate agreed upon.

Cross-examined by the Attorney General. - Henry Callow is the person who accompanied Evans to Mr. Archer’s; Callow was not drunk, Evans was; he said he required the 600 bushels to be sent that afternoon, by the usual boat; I replied, he ought to have given us further notice, as we were not prepared to do so at so short a notice; I did not state what quantity Mr. Archer had by him; I do not recollect saying, in answer to a question from Callow, that there was not more than 100 bushels in the store; I do not recollect making out a statement of the quantity coming to Evans, on account of the contract; Evans did tell me to deliver the remainder of the wheat to the order of Callow; I do not recollect that I told either E. or C. when the remainder could be delivered; I told them to see Mr. Archer; Callow said, if he could have the 600 bushels then, he should not lose a great deal by it, as he could get nearly what it cost him; this is Evans’ pass book; there are no entries made after 26th Aug. in it; the entries were made in our ledger at the time of delivery, and copied into the pass book when Evans required it; wheat at this time had fallen; I think it was 5 or 6s. per bushel; there was no person but myself present when Mr. Archer had the conversation about the quantity required weekly; when Mr. Archer told Evans he could not deliver any wheat for the first fortnight, Evans said - “that’ll do - that’ll do very well, I’ve got wheat by me, and could go on for a month.”

Re-examined. - The 600 bushels demanded, were to be sent by Gullen’s boat, and I said, that even if she had no other wheat on board, she could not receive it; when Evans made this demand of 600 bushels, he could not have realised the contract price, except by his contract with Government, and the usual quantity required for that contract, was 90 bushels per week; at this time wheat was about 5s. 6d.

By his Honor. - What quantity of wheat was undelivered to Evans from the commencement of the contract, up to the time of his demanding the 600 bushels, at the rate of 90 bushels per week?

Answer, 550 bushels due.

John Gullen. - In May, last year, I tool possession of Mr. Archer’s mill; about that time, I had some conversation with plaintiff and defendant, about Evans’ contract with Mr. Archer; Evans said he was to take his wheat from Archer, and that as I was to grind it, he hoped I would do him justice, and see that the wheat was good; when the boat came up, I used to go and ask him what quantities he would want; sometimes Mr. Archer could not send the exact quantities; the wheat was in the store; he used to tell me what quantity he would want, and if it was in Mr. A’s store, I obtained it, if not, I got it next time; Mr. Evans gave me instructions every trip; sometimes I got more, sometimes less than the quantity ordered by Evans; I got, altogether, the quantity, but not exactly at the time ordered; sometimes Evans had more or less as he had bags for it; he never told me the average quantity he wanted; I ground for him five months, and, therefore, have ascertained the average; He told me he wanted the wheat ground for the Government contract; part was to be 12 per cent, and part fine flour; there was some flour refused by Evans, from Archer, in Oct; I had received the wheat from Mr. Archer; there were 4 different lots refused by Evans, one in Sept., and three in Oct; I saw him on the subject, one time in Sept; he was in Mr. Archer’s store; he stopped me in the street, and asked how much my boat would hold; he said, I am going to demand 600 bushels for your mill, and to send the rest to Sydney; this was opposite Mr. Archer’s gate, in the street; my boat was then lying at the wharf, and was to start again that day; defendant knew that she could not have taken 600 bushels from Mr. Archer’s then, in bags, because I had 100 bushels already on board; Evans proposed to put it in loose; I could have taken it loose; I waited outside until he came out of Archer’s; he said, when he came out, he had not got a decisive answer, I had better keep the boat till next day; he then told me he had not got an answer; Mr. Archer delivered about 15 bags, 3 bushels each, on account of Evan’s 600 bushels, and told me I should have the rest next time; I never knew Evans before to send wheat down loose; I told Evans he had not bags enough for 600 bushels, and he proposed to send it loose, and said he would find bags before it was manufactured; I believe the price of wheat then was 6s. or 7s.; Evans knew that I took down 15 bags, and when it came up he would not take it, because Mr. Archer had not delivered it all at once; before the boat started, I told Evans I had but 15 bags; he said, “that is not what I want, I want the whole of it,” and refused to receive it; after these 15 bags, I received three other separate parcels of wheat from Mr. Archer; about a week after I received these bags, and took them to Evans, he said, “No, Mr. Archer has [???] his contract, and I will not receive any more;” all the lots were refused by Evans; when I took the fourth lot to him, he said, “when I want wheat, I’ll send my own bags;” I had no particular authority from E. to receive the last parcels of wheat from Archer.

Cross-examined. - On 20th Sept., when I saw Evans, Mosses Callow was with him; I had an old sail spread in the boat, to receive the wheat, and I detained the boat until next day, in expectation of receiving it; Evans had had a glass of grog, but knew what he was about; wheat was then 6 or 7s. and fell within a month; Evans once told me he would send the remainder of the wheat he had to receive, to his brother, in Sydney; I could easily have received the 600 bushels on board.

Re-examined. - Evans was not exactly sober; he said, he had to get some more from Mr. Archer, which he would send to his brother in Sydney.

Asst. Com. Gen. Wollar, sworn. - The defendant was contractor for bread last year; the contract was to continue from Lt April, that year, to 3lst of last March; the payments were to be made monthly; about 10,000 lbs of bread were required monthly; the quantity required did not vary much.

Jonathan Ives. - During the last year, I have bad dealings with defendant in wheat; in May, 1836, I sold some wheat to Evans, and took it to Mr. Archer’s on Evans’ account; some dispute arose about the weight, between myself and Mr. Archer; I brought it back to Evans, who said, that is not the cause of dispute - I know what it is - but it’s no sue my paying 10s. 5d. when I can get it for 7s. 6d.

Mr. Cape. - stated, that early in March, last year the price was 11s; in Aug. and Sept. it was 7 or 8s; at Christmas, and from thence to March, it averaged 6s.

The Attorney General was the defence - After recapitulating the evidence, said, that the plaintiff came here to claim his pound of flesh for his bond, and trusted the Jury would give it him.

His Honor summed up the evidence, and in conclusion, charged the Jury, on returning their verdict, to say specially whether they found that the plaintiff was bound by the verbal agreement to deliver 90 bushels per week, or whether the written contract only was the true one.

Verdict for the defendant. - The Jury stated, that they were of opinion, that the wheat ought to have been delivered at the rate of 90 bushels per week, which the plaintiff had not done.