[assumpsit – circulating library, failed attempt to establish – contract, damages]

Dowling v. Tegg

Supreme Court of Van Diemen’s Land

Pedder C.J., 4 January 1841

Source: Hobart Town Advertiser, 12 January 1841[1]

Jury, James Cox and Theodore Bartley, Esquires, A. Anderson and J. Cameron, Merchants.

            For plaintiff, the Attorney-General and Mr. Sydney Stephen; for defendant, the Solicitor-General.

            Mr. Stephen having read the pleadings, the Attorney-General stated the case to the jury. This was an action of assumpsit, in which Mr. Henry Dowling was plaintiff, and Mr. Samuel Augustus Tegg, of Hobart Town, defendant. In the early part of 1837, Mr. Dowling contemplated the establishment of a circulating library. Relying upon the correctness and integrity of Mr. Tegg, Mr. Dowling was induced to apply to him for a supply of books to commence the undertaking. For this purpose, he went to Hobart Town, and purchased about £250 worth of books from Mr. Tegg, and at the same time made arrangements with him to procure from London a quantity of books at the prices mentioned in Messrs. Tegg and Co’s catalogue. On his return home, Mr. Dowling discovered that he had omitted one very important consideration in his arrangements with Mr. Tegg, viz. that it would be necessary for him to procure not only the works contained in Mr. Tegg’s list, but also many other new works that might be published by other parties. Accordingly, he wrote to Mr. Tegg asking him upon what terms he would undertake to supply the library with whatever books might be required, not contained in his father’s catalogue. In reply, he received a letter from a Mr. Coleman, who then, managed Mr. Tegg’s affairs, offering certain terms, to which Mr. Dowling assented, and the bargain was thereupon closed. Mr. Tegg, however, afterwards found, that the terms upon which he had offered to procure the books would not pay him, and addressed a subsequent letter to Mr. Dowling, complaining that the terms offered had arisen from a miscalculation, having omitted to estimate the ten per cent which he would have to pay his agent for purchasing the books at home, but offering to procure them at a very considerable addition to the terms originally agreed upon Mr. Dowling, however, finally agreed to the new proposal, upon the express understanding that the books were to be supplied in a reasonable time. Mr. Dowling, in his letter accepting this second offer, particularly alludes to the necessity of promptitude, as the success of a circulating library depended entirely upon the supply of new books. Mr. Tegg replied that the order had been sent by the Derwent; and whilst in Launceston a short time afterwards, considered the assertion and added that as the Derwent was a fast sailing vessel no doubt the books would arrive in due course. Although the arrangement took place in 1837, up to the present period the books had not arrived, by which as the defendant alleged, the plaintiff had contained great loss, and had been deprived of divers gains and profits for which the damages were laid at £600. He was not instructed to say or insinuate that Mr. Tegg had received the books and disposed of them at a more profitable rate than his bargain with the plaintiff; but from whatever cause the delay might have sprung, it was not for his client to suffer through the indiscreet conduct of Mr. Tegg.

The Solicitor-General for the defence, contended that no contract had been entered into by Mr. Tegg, to deliver the books, as was set forth in the declaration, but merely to forward the order. There was nothing either in the written or parole evidence to justify the conclusion that such a contract had been entered into by the defendant.

His Honor summed up with great care, going through the whole of the correspondence, and commenting thereon. The jury expressed themselves satisfied before his Honor had concluded, and without retiring, gave a verdict for plaintiff. Damages, £130.

Source: The Cornwall Chronicle and Commercial and Agricultural Register,

6 January 1841

            This was an action of assumpsit, to recover damages for breach of contract. The damages were laid at £600.

            Mr. S. Stephen having opened the pleadings, the Attorney General stated the case to the jury. In 1837, Mr. Dowling established a circulating library, and gave an order to Mr. Tegg, of Hobart Town, to send to London for a considerable quantity of books, upon which he was to pay defendant 10 per cent, upon the sitting price. Defendant stated, that the order had in 1837 gone home in the Derwent, but up to the present time no books had been received by plaintiff, who was subsequently obliged to write home to his agent; and during the time which necessarily elapsed, the subscribers to the library fell off considerably, for which has he now sought compensation.

A number of letters having been read, proving the contract between the parties, the following witnesses are examined:-

Mr. James Word. - I knew Mr. Coleman, clerk at Mr. Tegg’s, in 1837; I understood he was Mr. Tegg’s managing man; he took a very active part in the business; he managed the shop and corresponded, and signed receipts formerly; I understood about fourteen months ago, that he had gone to Sydney [letters produced]; these are all in Mr. Coleman’s handwriting.

Cross-examined by Solicitor General. - In 1836 and 7 I was in the habit of going to Mr. Tegg’s shop nearly every day; those letters are in Coleman’s handwriting.

Mr. W. Cozens. - I am a druggist and book-seller; know the parties to the action; knew Coleman part of 1837 and the whole if 1838; I knew him first as corresponding for Mr. Tegg, and then I knew him in Hobart Town; I knew him as principal superintendent of Mr. Tegg’s business (letters put in); I have not the slightest doubt they are his hand writing; I have dealt with Mr. Tegg to the amount of several hundred pounds; the first order I gave to Mr. Tegg in person; I subsequently received almost all the correspondence through Mr. Coleman.

Cross-examined. - I have had extensive dealings with Mr. Tegg to March 1840; I had no reason to complain of his manner of doing business; I never told him to execute an order on London for me.

Mr. T. Brown. - I am a stationer; I was with Mr. Dowling in 1837; 27th February of that year I received a letter from Mr. D., which I copied into a book, and put the original into the post-office; it was directed to Mr. Tegg, or in his absence Mr. Coleman; I find the copy of that letter in the book before me; on the 2nd March, same year, I did the same; that letter was directed to Mr. Tegg only; on 6th April, same year, I also copied a letter addressed to Mr. T.; also on the 9th from a letter given me by Mr. Dowling; it is addressed to Mr. Tegg; I gave that as well as that of the 6th, after copying them to Mr. McKee.

Cross-examined . - With regard to the two first letters I believe them to be correct; they were signed by Mr. Dowling; I put them in the post myself; I recollect giving the letter of the 9th to Mr. McKee.

Mr. Samuel McKee. - In 1837 I was in Mr. Dowling’s employ; I joined the 3rd April; I remember a letter containing a list of books given to me by Mr. Dowling; I gave it Mr. Brown, and he copied it, gave it to me again, and I returned it to Mr. D., he folded it, and I put it into the post; the order was to have gone home in the Derwent; Mr. Tegg was in Launceston in Sept. 1837; Mr. Dowling asked Mr. Tegg if he had sent the order for the books; he said yes, by the Derwent, she was a quick sailer, and the books would arrive in due course, and that there would be also some other books from 1837 to 1839 I posted all the letters; the letter dated 7th Feb, 1839, I copied and put into the post, with this of the 21st I also did the same; they are both addressed to S. A. Tegg.

Cross-examined. - I can’t say I read the letter which contained the order for goods, but I believe I did; I know of no other order for goods copied by Mr. Brown, and posted by myself, than this to Mr. Tegg, during the time I have been with Mr. Dowling; I saw Mr. T. the Sept. after that letter was written; he was frequently at Mr. Dowling’s; I have heard more than once conversation between them.

The letters and answers were then put in and read; one of the 15th April 1837, from defendant to plaintiff, set forth that the order for the books had been sent home in the Derwent.

            Mr. Brown, re-called. - Mr. Dowling established a Circulating Library in 1837, and I have had charge of it up to the present time. The list of books read were suggested by me from my knowledge of popular works, and from enquiries made; I frequently alluded to these works with a view of obtaining subscriptions; the subscribers we had fell off to a mere nothing about 12 or 15 months after; we have increased very considerably the last 12 months, because we have been able to supply the library with new works; we waited 16 or 18 months for Mr. Tegg’s order and Mr. Dowling wrote home to his agent; I calculate the loss sustained to be from £200 to £250; in 1837 there were upwards of 100 subscribers, and in 18 months they fell off to about 30; the amount of subscribers at present are between 80 and 100, the non-subscribers are more than equal; the value of the books expected to arrive was about £100.

Mr. W. Cozens thought the estimate of Brown rather low.

This closed the plaintiff’s case.

For the defence, the Solicitor General contended, that no further agreement had been entered into on the part of Mr. Tegg, than to send home the list of books which he had done, but he did not engage to deliver them, and ridiculed the idea of the loss said to be sustained by the books not being received.

No witness being called for the defence, his Honor summed up, leaving the question of contract or no contract, and the amount of loss, if any, in the hands of the jury, the jury without retiring returned a verdict for the plaintiff - Damage £130.

The Attorney General and Mr. S. Stephen, with Messrs. Gleadow and Henty for plaintiff, the Solicitor General and Mr. Burke for defendant.