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Decisions of the Superior Courts of New South Wales, 1788-1899

Williams v. Williams


Supreme Court of New South Wales, Port Phillip

Willis J., 4 June 1841

Source: Port Phillip Patriot, 10 June 1841

Williams v. Williams. Mr. Barry, for the plaintiff stated the case. This was an action brought by an agent against the principal to recover the sum of £ 83 3sThe plaintiff is an auctioneer, and the defendant a merchant in Melbourne; in February last, the defendant gave instructions to the plaintiff to sell by auction, fifty barrels American flour, as he wished to get his store cleared; and at the time of giving the order, defendant made no conditions as to sale, but left the matter entirely to the discretion of the plaintiff.

On the day of the sale, the defendant sent two barrels of American flour to the plaintiff as the sample that was for sale, giving instructions at the time, that the plaintiff could, in the event of selling the flour, give an order on him for its delivery; under these instructions, the flour was sold to various purchasers in lots containing five barrels, and each lot realised from £ 1 1s. to £ 1 2s. per barrel; after the sale, an order was given on the defendant to deliver a lot containing five barrels to one of the purchasers; on the order being presented, the defendant refused to deliver the flour at the price it had been sold at; several other orders were presented subsequently to the first, and likewise refused; plaintiff then called on defendant, and expostulated with him on the strangeness of the proceedings, alledging that there had been no reserve on the goods, and he (plaintiff) was bound to sell; defendant still refusing, the plaintiff said, he was bound for the sake of retaining his character for punctuality to supply to the various purchasers, the flour they had purchased of him at the sale; and he (plaintiff) should advertise for tenders in the newspapers for 48 barrels of flour, and hold the defendant responsible for any increase in the amount; the tender was accordingly advertised, and 48 barrels of flour were purchased on a bill of exchange for three months, since paid, for, £ 2 16s. per barrel; and the present action was brought to recover the amount paid by the plaintiff over the receipts of the sale, in order that he might fulfil his contract.

Mr. Cunningham, for the defendant, contended that the plaintiff was not justified in what he had done, without having positive instructions from his principal; the plaintiff had never been sued by any of the parties who purchased the flour, therefore he could not have sustained any injury; there had been no instructions to sacrifice the flour, or sell it for cash in the present depressed state of the money-market; and under these circumstances he (Mr. C.) urged his client was not liable.

Judge Willis wished to know if there had been any fraud committed in the selling; the law looks with great suspicion on sales with reservation on them; in fact, the sale by auction cannot be withdrawn, and unless it is publicly declared at the time of the sale that there will be a reserve of a certain sum on the property to be sold, the sale would be illegal, and even the owner himself is not allowed to bid unless he declarfes such to be his intention at the time of sale; and under these circyumstances the case rests in a very narrow compass; no blame whatever could be attributed to the auctioneer; the defendant had given instructions to sell the flour, to clear his warehouse, therefore the character of the plaintiff could not be impugned; the only part of the proceedings that appeared strange (to His Honor) was that secrecy should be made at the time of sale, as to the party to whom the flour belonged, which fact was obliged to be disclosed when the order was given on the defendfant to deliver the flour; the plaintiff had certainly said before witnesses to the defendant, that unless he complied with the orders on him for the flour, he should bring an action against him for the breach; plaintiff had acted throughout in a very honorable manner to keep up the reputation he appeared to hold and very deservedly so, in the colony; the case rested entirely with the Assessors to say what damage the plaintiff had sustained, as it did not appear it had been compulsory on him to purchase the flour. I state conscientiously (concluded His Honor) what I conceive to be the law of the case, and it then rests with the Assessors to act.---Verdict for the plaintiff, 45 l.

Judge Willis: I am bound to say that the verdict is not in accordance with my opinion; but unless the assessors disputed I never gave a vote.

Counsel for plaintiff---Mr. Barry; for defendant---Messrs. Brewster and Cunningham.

Published by the Division of Law, Macquarie University