[contract, proof of terms]

Carter v. Hunt

Supreme Court of Van Diemen’s Land

Pedder C.J., 24 September 1840

Source: Launceston Advertiser, 15 October 1840[1]

            A decision of the Supreme Court at Hobart Town last week, in the case of Carter against Hunt, involves some points of essential import to our merchants and traders. The facts of the case, as they came out in evidence, appear to be as follows:- Hunt agreed to forward for the plaintiff an indent for goods to the value of about £5000, to a firm in London for execution, which upon arrival here, were to be handed over to the plaintiff, he paying the cost and twenty per cent. advance by an acceptance at six months. This in substance Mr. Hunt intimated by letter to Carter shortly after the order had been forwarded to England. It was proved that twelve or fifteen months allowed ample time for the goods to arrive in the Colony, and that the probable profit on the value and kind ordered would have been from £180 to £200. A verdict was given for the plaintiff. Damage £80.

            We are not sorry to see the principle of responsibility recognised in a court of law, although, in the present instance, it may press hard upon the merchant. The hurried and loose manner in which mercantile engagements have been entered into here cannot be sufficiently deprecated, as prejudicial alike to the real interests of both parties; nor a more systematic plan too soon adopted. The above decision seems calculated to lead to this, by compelling the merchant to protect himself as far as possible for the future, seeing he will be bound to fulfil his part of the contract, whether he take the necessary precaution of binding his customer or not. It is well known that indents are frequently received and transmitted to England for particular manufacturers, which are suitable only for the individuals who order them - machinery, for instance; and in the event of the removal, refusal, bad credit, insolvency, or death of the party, they remain in the hands of the merchant, who thereby often times is subjected to considerable inconvenience and pecuniary loss. Even in the case of the more usual kind of manufacturers, groceries, &c., there is a peculiarity in the assortment, when specially ordered, that renders it unsuitable, or not so valuable, to any other dealer as the one it was intended for. And the merchant is often obliged to sacrifice what ought to have been his profit, if he has to seek a market for such an order. The obvious remedy for all this (which is not suppositious, but has been of common occurrence,) seems to be very simple, and in the power of the merchant himself. We would suggest, that every dealer so ordering goods should give a guarantee binding him to take them upon arrival, on specified terms, and at the same time to lodge in the hands of the merchant a proportionate deposit of money; to be forfeited in case of refusal, &c. The shopkeeper would then be distinctly aware of his position; and these requirements would induce a wholesome exercise of cautiousness and judgment on his part, in ordering only those goods which he would prospectively require. We conceive the system of indenting, if properly regulated, the most advantageous to both merchant and trader; and we shall be happy if our inviting attention to it at this time tends in any measure to establish it on a more satisfactory basis, or contribute to its better working.

Pedder C.J. and Montagu J., in Banco, 13 and 17 November 1840

Source: Hobart Town Advertiser, 20 November 1840

            The Solicitor-General, for the plaintiff, appeared to shew cause against the rule nisi obtained in this case to set aside the verdict, and enter judgment as in case of non suit. Rule was obtained on the ground that the contract declared upon, was a contract for the sale of “ladies’ boots and shoes” while the contract proved was “for the importation of ladies’ boots and shoes from the house of Hoppy St. Paul’s Churchyard,” - the variance being considered when motion made, to be fatal.

            Against the rule the Solicitor-General now contended - lst, that the declaration was sufficient in law; and, secondly, that the variance was one of mere form which the plaintiff ought to have been allowed to amend at the trial. Lord Chief Justice Dallas had laid down the rule, that it was sufficient to set out such parts of a contract as would shew the nature thereof, and that the omission of minute details was immaterial. In Handford and Palmer 2d Bing, The court had ruled that it was sufficient to set out those points only which showed what was the substantial contract. In this case the substantial contract was for boots and shoes. The words to be imported from the house of Hoppy, “ being only descriptive, and as immaterial to the legal effect of the contract itself, as the description of “lasting boots, to lace at the sides with laces,” or any other of the minute directions of the order. Mr. Justice Vaughan had ruled, and his opinion was confirmed by that of Mr. Justice Gibbs, that where the statements in the contract, and the allegations in the declaration were both satisfied by the same proof, the declaration was sufficient. In this case the plaintiff had proved more than the declaration as a omne major continet in se minus, had proved all he went for. The contract was substantially well stated; and the only legal argument he had heard against it was, that had the contract been set out as proved, the defendant might have pleaded that Hoppy’s house has failed, and therefore that the completion of the order by that house was impossible. The learned advocate did not concur in this, for if Mr. Hunt chose to enter into an unconditional contract, he must take the consequences. In Chitty, 568, it was laid down that if a party, making a contract fail, or neglect to protect himself against contingencies, the law would not protect him from the consequences of his own folly. In this case, however, even supposing such a plea had been filed, it could not have been supported, as it was the evidence; that Mr. Swan had received an investment of boots and shoes from Hoppy’s house at the very time when the order which was the subject of this action ought to have been executed, if sent home in proper course by the defendant. It had also been contended that the defendant had been misled by the declaration. This could not be. He had been shewn the contract, and asked to admit it, but refused - and he knew that Mr. Carter, junior had been sent for from Port Phillip, to prove this very contract. It was twelve months since this action was commenced; and after all this delay, rendered necessary by the conduct of the defendant, he now turns round on a point of special pleading, and complains of being taken by surprise, by a variance which is immaterial to the merits of the case. Such a course was as totally at variance with the principles of justice and modern practice, as it was with common sense. He would conclude his remarks on this head with the general rule, that it was not necessary to insert in the declaration a description of what was not essential to the form of action, as non-essentials need not be averred. The second point he had to contend for was that if the omission in the declaration was a variance essential, it was such a one as ought to have been allowed to be amended on the trial, under Lord Tenterden’s Act. The statutes 3 and 4 William iv; 23 and 24, and the Supreme Court of this colony. In support of which position the learned advocate cited the authorities of Chief Justice Dallas, Lord Abinger, Barons Parke, Alderson, Vaughan, and Gibbs, the Law Commissioners, &c. &c., all of whom concurred in the point, that under the new rules which confined the plaintiff to one count, the greatest fiberality should be exercised by the Judges, with respect to amendments under the statutes above cited. In the case of Whitwell v. Sheer the declaration had been twice amended before trial, the last time for the insertion of a particular promise, which on the trial turned out to be a variance, which not withstanding an affidavit was put in that the defendant went to trial with the intention solely of contesting this promise, was allowed to be amended by the presiding judge, and the amendment confirmed by the judges in banco. After citing nearly twenty other cases, one as recent as April, 1838, the learned solicitor-general concluded by observing, on the authority of Lord Abinger, that what the variance does not really affect the matter in dispute, or is not calculated to mislead the opposite party, an amendment ought to be allowed. In the present case what good could arise from these proceedings? If their honors at one o’clock were to decide upon setting aside the verdict, before half past one a new writ of summons would be issued. It was a mere matter of form that was complained of, and the defendant was not in a position to make any good defence to an action on the merits of the case. If all this delay, inconvenience, and expense were to be entailed upon suitors, on such grounds, it was perfectly useless for the British Parliament to make remedial laws, or the Local Council to pass acts extending those laws to this colony.

            Mr. Stephen, for the defendant, wished to be allowed time to reply, as so many cases, many of them very recent had been cited, that he felt he could not do justice without having time to examine those cases.

            The Solicitor General objected to any further delay. His client had already been kept out of his money for 12 months, and as he (the Solicitor General) had been on a former occasion compelled to go on with a case in which he had relied upon the assistance of the Attorney General, although requesting delay on account of that officers absence, he trusted Mr. Stephen might be compelled to proceed now.

            Mr. Justice Montagu said that if all the authorities cited by the Solicitor General were put in the fire, he was convinced within 20 minutes after granting this rule that he had done grievous wrong in allowing it. The pernicious consequences resulting from special pleading were an outrage to common decency. They had compelled learned Judges to direct Juries to find verdicts against evidence, against justice, and against common sense. If the merits of the case have been before the Jury, the present question seems a simple one as to the construction of the 19th section of the Supreme Court Act. What is the use of further argument? Can the defendant’s Counsel go further? Where is his affidavit of inquiry? His Honor would never grant a rule again without an affidavit that the substantial merits have not been tried. His decisions would not be bound by this, or that authority, but depend on his own common sense. In this instance he had felt bound at the time to grant the rule in form, but the shortest possible time which enabled him to refer to the Supreme Court Act, convinced him of his error. It was high time something should be done to put an end to so mischievous a system. Where was the evil of amendments, provided the merits of the case came before the Court. As to the pleadings they were so much waste paper, and ought to be so considered if they did not express the merits of the case. He thought it impossible to allow further time, as it was only another form of application to prevent the payment of money for two or three weeks longer, which ought to have been paid before. When a Counsel applies for a rule, it is his duty to be prepared to support it. The duty of a Counsel considered in something more than taking a fee, holding a brief, and making a motion. His Honor was not disposed to be harsh or uncourteous. He wishes at all time to extend every courtesy to gentlemen at that bar; but when he saw that courtesy to the advocate would be injustice to the suitor, he would rather be uncourteous that unjust.

Mr. Stephen would not accept of courtesy on such terms.

Mr. Justice Montagu would nevertheless finish what he had to say. He did not believe that one atom of good could result from delay. He did not believe Mr. Stephen could carry the case farther. He did not believe that the substantial merits of the case had not been before the Court, and he would not consent to any further delay.

Mr. Stephen then replied, contending that, altho’ the statutes cited gave a power to the judge or judges at nisi prius to make amendments subject to the future review of the Court, it gave no power to the judges in banco to order amendments not made at the trial. If the Court would direct the defendant to make an affidavit that he would be damnified by the amendment, the case would be very different.

The Chief Justice reminded Mr. Stephen that liberty to amend was applied for by the Solicitor General at the trial, when the point was reserved, he (the Chief Justice) stating that although he would not take upon himself to allow the amendment, the plaintiff in the future argument should stand in the same position as if the amendment had been then made.

Mr. Justice Montagu granted the rule expressly on that understanding. This was another formal, special pleading objection.

Mr. Stephen then argued at considerable length on the cases cited, but every point was met as soon as raised by some short sententious remark from Mr. Montagu, and at length Mr. Stephen told his Honor that in arguing a case before him with his reluctance to allow anything like special pleading, he had not the same chance that he would have of pleading the same case in England. The learned advocate cited no cases in opposition to those brought forward by the Solicitor General, but merely contended for their inapplicability to the present one; and begged the Court not to go further than the judges in England had gone.

Mr. Justice Montagu said that his hatred to special pleading did not bind him to many of its advantages; but he would never concur in its abominations.

The Chief Justice had come to court fully believing that the amendment was not one which could be allowed; but after what he had heard his opinion was considerably shaken and he must therefore trespass on the Solicitor General till Tuesday for giving his decision in order that he might look through the cases.

The Court then rose.

Source: Tasmanian, 27 November 1840

            The Court gave judgment in this case, and discharged the rule without costs. The observations of their Honors will be found in the article headed “Special Pleading”.

* * *

            Special Pleadings - its blessings, and advantages, as again explained by Mr. Justice Montagu

            We make not the slightest hesitation in taking the following extract from the Hobart Town Advertiser, because the more generally it is known, that the Judges of Van Diemen’s Land are sensible of the iniquities of the practice of the law, and that they have determined not to be made participators in legalized imposition, the more probably is it, that justice will be done, in every way, through their medium, to the community.

            Our motive in giving these notices, &c. insertion is to show (even by an extract from another Journal) in the several Colonies, with which we exchange information, that in Van Diemen’s Land, the Judges have determined not to support any system likely to procure “verdicts contrary to justice and common sense.” Let them now we implore them, look to the fees of Court to the impositions in the shape of Law charges, to the trickery of pleaders by which the man who seeks only simple justice, is made to look even upon success through such a channel, as certain and irreparable ruin:-

In giving judgment in the case of Carter and Hunt, Mr. Justice Montagu said. -

“A good deal of alarm appeared to have been created by the observations which had fallen from him in reference to this case; but he really could not see why any such could exist. The simple question before the Court was, had substantial justice been done between the parties. He believed it had; he believed also that in this, as in a great majority of cases, the parties came before the Court to try a particular quarrel, although when there they find by the pleadings they are called upon to try something altogether different. Here it was evident the defendant knew full well what was to be tried, and produced his witnesses to prove the loss sustained by the plaintiff was not so great as was alleged. It was also clear, that under any forms of pleadings he had no other defence - there was an unconditional and absolute contract, and unless he could shew that he had fulfilled it, no defence in the world would avail him. Hoppy’s house might have failed which his Honor knew not - the goods must have been lost at sea. Which he knew not - not properly shipped, which he knew not - not duly ordered, through the negligence of a clerk, which he knew not - or the shoes might have arrived in a damaged state, of which he was perfectly ignorant; but in either of these cases, the defendant could not excuse the violation of his contract. He had thought proper to make an unconditional contract, in the fulfilment of which, no doubt for very good and sufficient reasons, he had failed; but if people will enter into such engagements they must take the consequences. Seeing therefore that if the contract had been set out in the declaration so as to meet the proof adduced at the trial, the defendant could not have had any other possible defence than that which he had made, what harm would result from allowing the variance to be amended. It was possible that a case might occur, and no doubt in a long course of practice would occur, where a Judge might exercise this discretionary power under an erroneous view of a case; but should such an evil arise, how easy was the remedy? A new trial could be had on shewing that either party had been damnified by a wrong judgment. The object and benefit of the pleadings, is to determine the issue which the Jury has to try; and will any man attempt to say, that one case in one thousand could arise where two people went through all the stages of a law suit without thoroughly knowing what it was they were quarrelling about. The evil of the system is the producing, on mere technicalities, verdicts contrary to justice and common sense. His Honor had at first thought the Court was wrong in granting this rule - he thought so still - but he nevertheless was glad to rule had issued, as it had the effect of bringing before the Court the real state of the law on the subject of variances. The Court was much obliged to the Solicitor-General for the laborious research he had evinced in laying this case so clearly before them. It had satisfied his (Mr. Justice Montagu’s) mind of what it was not fully satisfied before, that the Judges at home took the same view of amending variances that he did. He never entertained a doubt that such was the intention of the Legislature, but he was never before so clearly satisfied that the English Judges had so fully acted up to it. This case, by enabling the Judges to reflect upon the law with respect to variances, has produced a good result. In future, whenever it appears that justice may be done by altering the pleadings to any extent, the Court may allow the amendment, and so prevent parties from being damnified by the technicalities of special pleading, or the trickery of pleaders - His Honor did not use the term offensively. Before the statutes that had been cited were passed, it was the duty of pleaders to strive for the victory on the pleadings themselves. Those acts, however, put an end to this system, if judges do their duty. The Colonial Act goes even further than the English ones, and ought to do so. The evils of the system being greater in this Colony than in England, it was necessary to afford a more stringent remedy. It is not too much to suppose, that in the great majority of cases, the Judge will be right in the exercise of the discretionary power with which he is invested; but there is another good effect which will be produced. The existence of such a power in the Judge, will make pleaders cautious, and teach them not to bring in a lot of evidence to support a fictitious case, perhaps quite distinct from the real cause of quarrel between the suitors. The object of pleading was to set out the matters of fact, and the more simply and comprehensively that can be done, the better.”

The Chief Justice was also of opinion that the defendant could not have been injured by the alteration of the pleadings, and the verdict must stand.