Rockhampton Bulletin and Central Queensland Advertiser, 5 October 1865, p. 3, report of proceedings on Wednesday, 4 October.
DOUGLAS v. WARD.—BREACH OF AGREEMENT.
This was an action brought by John Douglas, M.L.A., against
John Ward, butcher, of this town, for breach of agreement. The damages were
laid at £600.
Mr. Jones, together with Mr. Bramston, and Mr. Paul,
instructed by Mr. C. S. Dick, appeared for the plaintiff; and Mr. Pring,
together with Mr. Cooper, instructed by Mr. Thomas Clark, for the defendant.
The jury empanelled to try the case consisted of Messrs.
Budden, Mulligan, Morgan, and Palmer.
The agreement, the subject of the action, was to the effect
that John Ward agreed “to purchase fat bullocks from D. W. Armstrong, as agent
for John Douglas, for the period of six months, at an average rate of fifty
head (50) per month,” and in consideration agreed to pay “£3 per head for every
head of fat bullocks so delivered. The above-mentioned stock to be approved of
at Tooloombah, by John Ward or his agent,” and “to be delivered at Tooloombah
stockyard by D. W. Armstrong, as agent for John Douglas. Terms cash, on
delivery. First draft to be taken (not less than fifty head) by John Ward or by
his agent, on or about December 10th, 1864. The agreement was dated November
11th, 1864, Rockhampton, and signed by John Ward, and D. W. Armstrong, agent
for John Douglas.”
Mr. Paul read the declaration of action, dated 8th August,
1865, which stated that although plaintiff was always ready and willing to
submit fat cattle to the defendant or his agent, for approval, and to deliver
such cattle to the defendant or his agent, according to the terms of the above
agreement, yet the defendant did not either himself or his agent, go to
Tooloombah to approve and take delivery of the cattle, whereby plaintiff
incurred expense in keeping the said cattle, and in re-selling the same, and
also a loss upon the re-sale. The declaration contained the usual counts for
goods bargained and sold, and for moneys payable and found to be due by
defendant. The pleas filed were as follows:—As to the two first counts of the
declaration that defendant did not promise and agree as alleged; and for a
second plea to the first count, defendant said that plaintiff was not ready and
willing to submit fat cattle to him or his agent for approval, and to deliver
such cattle to him or his agent as alleged; and for a third plea to the first
count he stated that he did not, by himself or his agent, neglect or refuse to
go to Tooloombah to approve and take delivery of the said cattle, as alleged in
that count; and for a fourth plea to the second count defendant said all
conditions of the agreement were not on the part of plaintiff fulfilled, and
that plaintiff was not able, ready, or willing to deliver the said cattle,
although defendant for his part was ready and willing to accept the said
cattle; and for a fifth plea to the residue of the declaration, defendant said
that he never was indebted as alleged. The plaintiff in his replication joined
issue upon the defendant’s pleas.
Mr. Jones, in opening the plaintiff’s case to the jury,
stated that his client had by reason of the defendant’s breach of the agreement
suffered an actual loss of £176 10s. 3d. which he made up in this way,
viz.:—128 head of cattle sold by auction at £2 5s. per head, £288; less cost of
advertising sale, £2 2s.; auctioneer’s commission, £14 8s.; Mr. Feez’s
commission as agent (two per cent), £6 15s. 3d.; expenses of three men and
three horses for twelve days, £12; Mr. Armstrong’s expenses on two journeys of 200
miles each, £10; Mr. Dick’s professional costs, £5 5s.; and, assuming that the
100 head of cattle not taken delivery of would realise 45s. per head, which
would be £225, less advertising and commission as before, £35 would leave £190,
which added to £237 9s. 9d. (the above sums added together) would make £427 9s.
9d.; the actual loss being the difference between this sum and £604, which
according to the agreement plaintiff should have received from defendant for
228 head of cattle at £3 per head.
His Honor ruled that Mr. Dick’s professional charges could
not be taken into account by the plaintiff in making his claim, and
Mr. Jones accordingly abandoned this portion of the claim.
He then called
David W. Armstrong, who being sworn, deposed: He was
superintendent and manager of plaintiff’s station at Tooloombah; in the month
of November last he made an agreement with defendant; the terms of that
agreement were reduced to writing; the document produced was the agreement in
question; it was signed by himself and by the defendant; it bore date the 11th
of November. (Agreement read.) The agreement was made in Rockhampton; he then
returned to the station, and was there on the 10th December; on that day he
mustered, and got in, fifty fat bullocks, and kept them in a stock-yard day and
night, expecting that Mr. Ward or his agent would come for them; no one came
for them, and he therefore turned them into a paddock, where he kept them for
four or five days; no one came to take them, either during those days, or at
any time during the month; on the 10th of the following month he took 100 head
of fat cattle from their usual feeding ground, and kept them near the camp, so
as to be ready for delivery to the defendant; neither Mr. Ward, or his agent,
or any one came for the cattle once during that month; in the latter part of
the month witness went down to Rockhampton, where he saw Mr. Ward; Tooloombah
is 100 miles distant from Rockhampton; he spoke to defendant respecting the
cattle being ready for him, and Mr. Ward said he would come up for them; in the
course of conversation, witness said he could let him (defendant) have the 300
head of cattle all at once if he liked, upon which defendant said he was not
ready for them, but that he would send up Mr. Dickers for what he wanted; on
the 14th February Mr. Dickers came up to the station, and took seventy-two head
of cattle; witness, at that time, could have delivered 400 head of fat cattle;
Mr. Dickers said that Mr. Ward had instructed him not to take more than about
seventy head, and that he was not authorised to take more; he (Mr. Dickers) did
not object to the quality of these seventy-two cattle; witness handed to Mr.
Dickers a written notice on the same day (14th February), that the remainder of
the cattle were in readiness for him (defendant) to take away, and if not
removed, would be held at his risk. (Copy of notice put in and read.) Witness
was at that time ready to deliver the whole of the cattle to defendant; in the
following month (March), the cattle were also in readiness to be delivered; no
one came during that month on behalf of the defendant, to take delivery of the
cattle; in the following month (April) 128 head of fat cattle were sent down by
him to Rockhampton for sale, at defendant’s risk; during the month of March no
one on behalf of Mr. Ward, came to take delivery of the cattle; these 128 fat
bullocks were the same cattle that should have been taken by defendant in the
previous month; previous to sending the cattle away, witness called in Mr.
M‘Gusty to inspect the bullocks, and see that they were fat cattle; he
(witness) did not go down with the cattle, which were taken by a Mr. Maginty;
two men accompanied him, to assist him in driving them, and he took three
horses; three men and three horses were, in his opinion, necessary to drive the
cattle; they were absent about twelve days; he estimated the services of these
men at £1 per man, each day, which would be £36; witness remained on the
station. On the 10th April a Mr. Luck, who he said he was Mr. Ward’s agent,
came to the station and asked for fifty head of fat bullocks; witness told him
that, if he was prepared to pay for the whole number of cattle then due to Mr.
Ward, he was prepared to deliver them; Mr. Luck said he was not prepared to pay
for the whole number; he produced an order from Mr. Ward, to authorise the
delivery to him of fifty head of cattle. (Order produced and read.)
By the Court: Mr. Luck did not tender to him any money in
the shape of coin, bank notes, cheques, or any security for money, in payment
for the fifty head of cattle which he required.
By Mr. Bramston: No one came to the station during the month
of May, on behalf of defendant; by the 10th of that month cattle had fallen in
price, and would not fetch £2 10s. per head, at the station; in the month of
May, at any time, he could have delivered at the yards 100 head of fat cattle,
had they been required; he could, and was prepared to have delivered a similar
number of cattle at the stock-yard, during the previous month; in his opinion,
cattle would be depreciated by being driven from Tooloombah to Rockhampton; the
depreciation, he should estimate at seven shillings per head; the market price
of these cattle, at plaintiff’s stock-yard, on the 10th April, would be £2
10s.; on the 10th March he presumed the price would be the same; on the 10th February
the market price would be £2 15s., and the same on the 10th January; on the
10th December, 1864, the market price would be £3.
Cross-examined by Mr. Pring: He went down to Rockhampton in
the end of January, at which time two lots of cattle should have been
delivered; Mr. Dickers arrived on the 6th February; he took delivery of the
cattle on the 14th February; witness was not on the station when Mr. Dickers
arrived, nor was he there on the 10th February; the cattle were in the yards on
the 14th February, on which day witness arrived; Mr. Dickers did not object to
witness to take delivery of the bullocks on the ground, that they were not fat
cattle; he made no such objections to witness; he remembered when Mr. Luck came
up; he made no objections to the quality or condition of the cattle.
Arnold Maginty, examined by Mr. Jones, deposed: He resided
at Mr. Douglas’ station, at Tooloombah; he was overseer on the station; he
remembered in April last bringing some cattle from that station; he was sent by
Mr. Armstrong; there was one hundred and twenty-eight head; he drove these
cattle to the Nine-mile Waterhole, near Rockhampton; they were good sound fat
cattle; they were sold to John Bennett by auction; he was present at the
auction; the cattle brought £2 5s. per head.
By Mr. Pring: On his oath he did say that these bullocks
were fat cattle, fit for a butcher; he had been three years and a half on the
station; cattle would not depreciate more on that station than on any other; he
did not think these cattle were worth as much in February, March, and April, as
they were in the previous months of December and January; the cattle did, in
his opinion, depreciate in value after the month of January, on account of the
dry weather; in the month of March the market value of these cattle was pretty
near the same as in the previous months; there was not much depreciation in
their value during the months of February, March, April, and May.
Re-examined by Mr. Jones: During those months the condition
of the cattle was much the same, but he did not know the difference in their
market value in that period.
The next witness called was
Robert M‘Gusty, who was examined by Mr. Paul: He was at
Tooloombah in April last; he had had experience in the buying and selling of
fat cattle; in the month of April last he was shown a mob of cattle on the
Tooloombah Station; he was told there was 120 head; it was, he believed, the
7th April; the cattle shown him were fat cattle, of pretty good quality, and
fit for the butcher; they were not what is called “rolling fat,” or fit for
boiling down, but of average quality.
Mills Wormald, auctioneer of this town, proved having sold
on the 15th April last, at the Nine-mile Water-hole, 131 head of fat cattle, on
account of Mr. John Ward, by instructions received by witness from Mr. A. Feez;
his charges were five per cent on the sale; the advertising charges would be
about fifteen shillings in addition; he sold the cattle for forty-five
shillings per head.
By Mr. Pring: He understood the cattle were sent by Mr.
Armstrong; he saw Mr. Maginty at the sale; he could have sold these cattle by
instructions from Mr. Maginty as well as from Mr. Feez; these were not prime
fat cattle; a portion of them only were in his opinion fit for the butcher; the
market price of fat cattle at Rockhampton, at that time, was from £3 to £3 10s.
per head.
Thomas Gordon, examined by Mr. Jones, said: He was a cattle
dealer; he remembered seeing a mob of cattle belonging to Mr. Douglas at the
Nine-Mile Water-hole, on the 13th or 14th April last, which were sold by
auction by Mr. Wormald; he considered them all fat cattle, with the exception
of some four or five.
By the Court: they were all, with the exception of four or
five fit for killing—fit for the table.
Henry James Dickers, examined by Mr. Pring, said: He knew
the defendant; he remembered being sent up by him to the Tooloombah station in
February last; he arrived at the station on or about the 10th February; he saw
no cattle in the yard when he came; he went with a stockman to muster the
cattle, and drove in about one thousand head the first day he was on the
station; he let these cattle remain in the yard, and on the following day
brought in about twenty head more; in all he brought in about 1100 head; of
these he selected and approved seventy-two; this was before he saw Mr.
Armstrong; he rejected all the other cattle; he did not tell Mr. Armstrong that
Mr. Ward had instructed him only to take seventy head, and that he had no
authority to take any more; he would have taken more than seventy head of fat
cattle, had there been more that he approved of; his instructions from Mr. Ward
were to take 100 to 150 head of fat cattle, and if he could not get so many, to
bring all he could; he was then prepared to pay for 150 head; on the night
previous to his starting with the cattle, he told Mr. Armstrong that he was
prepared to take 100 to 150 head fat cattle (paper produced and handed to
witness). He remembered Mr. Armstrong saying that “he should hold the others at
Mr. Ward’s risk;” Mr. Armstrong gave him a sealed letter or notice to give to
Mr. Ward.
By the Court: Mr. Armstrong gave him (witness) no paper or
document whatever addressed to himself; was quite positive that he never said
to Mr. Armstrong that he had received instructions from Mr. Ward only to take
seventy or seventy-two head of cattle.
Cross-examined by Mr. Jones: Had been in the colony over two
years; had never been on this run before; he believed there were about 4000
head of cattle on this run at the time he went there; out of that number he saw
between 2000 and 3000; he did not pick any cattle out of the stockyard on the
first day; it was on the second day that he picked out the seventy-two; he was
positive there were more than 100 bullocks at one time in the stockyard; he
would not swear that Mr. Armstrong did not give him a written notice; what Mr.
Armstrong gave him he gave to Mr. Ward; during his conversation with Mr.
Armstrong Mr. Maginty was present; there were about 120 at one time in the yard
taken from the mob of 1000 first brought in; of these 120 he picked the
seventy-two bullocks that he took away; he would swear that he did not
afterwards go out and draught in twelve more bullocks.
Arnold Maginty, recalled: Remembered last witness at
Tooloombah station in February last; recollected seeing Mr. Armstrong hand
Maginty a written notice which was open; he was present when Mr. Dickers spoke
to Mr. Armstrong; he understood Mr. Dickers to say that he was not to take more
than seventy head, or about seventy head; witness could have got in more cattle
for Mr. Dickers to inspect had the latter chosen to do so; Mr. Dickers saw
altogether about a fourth of the number of cattle on the run; there were about
120 bullocks in the stockyard whilst Mr. Dickers was there; of these Mr.
Dickers selected sixty head; he did not according to his (witness’s) opinion
choose the fattest bullocks; he went out the next day to get the other (twelve)
that he took; they went out for the purpose of getting twelve or fourteen head;
he did not remember who spoke of the twelve or fourteen head, but he supposed
it was Mr. Dickers; they obtained these twelve cattle from two or three camps
on the south of the run.
By Mr. Pring: The stockman and himself draughted the 120
head of cattle; it was next day that the twelve cattle more draughted; on the
first day there were 120 head in the stockyard; of these Mr. Dickers selected
sixty, and on the following day the remaining twelve cattle were drafted.
This evidence concluded the case.
Mr. Pring then addressed the jury, contending in his speech
that the defendant had fulfilled his part of the contract, and that he was not
legally bound to take delivery of any more cattle than such as he or his agent
approved of, and that they had only taken such cattle as they approved of. The
learned counsel was arguing that if any breaches of the agreement had been
committed by his client in not going or sending to the station, either on the
10th December or the 10th of January, such breaches were waived by the
subsequent act of the plaintiff’s agent, when he was interrupted by the learned
judge, who stated that he should direct the jury that such breach of the
agreement on the part of defendant was not waived by the subsequent acts of the
plaintiff. Mr. Pring wound up his speech by a few jocular observations
respecting Mr. Ward’s “breeches pocket,” and the difficulty he (Mr. P.) felt in
pulling him out of them.
Mr. Jones replied in a humorous speech, in which he gave it
as his opinion that his opponent’s address to the jury was a good deal more
inspired by visions of his client’s “breeches pockets” than by the breeches
themselves that he had so feelingly alluded to.
His Honor then carefully and deliberately summed up the
evidence, directing the jury to find a verdict for the plaintiff, unless they
disbelieved his witnesses. The only question they had to consider was that of
damages. The defendant was liable at law for all the losses sustained by the
plaintiff in the re-sale of the cattle and as the cattle were not sent for or
taken away by defendant after purchasing them, plaintiff was entitled to
re-sell them, and not wait for a purchaser. The measure of damages should be
estimated, in his opinion, by the market price of the cattle when sold at the
Nine-Mile Waterhole, and their contract price at Tooloombah. The defendant had
pleaded his readiness to take all the fat cattle that he agreed for, but it had
been shown that he could have taken delivery of more than seventy-eight cattle,
which he only actually received. His case was that no more than that number
were ready for delivery to him. It was for the jury to say whether this was the
fact or not. The plaintiff, on the other hand, had refused, in April, to give
delivery of fifty head of cattle, which defendant then only demanded, but was
prepared to give delivery of the whole number of the cattle then due to
defendant; consequently, plaintiff was not entitled to claim damages for
defendant’s non-acceptance of the cattle in that month, as he had clearly
prevented the latter from accepting them. He considered the plaintiff entitled
to £25 damages for the loss by depreciation in the value of the cattle; also to
£36 for driving expenses; also to £15 3s. for auctioneer’s expenses. It was for
the jury to say whether he was entitled to more than this, but he could not
claim for Mr. Feez’s commission, nor for Mr. Dick’s professional charges.
The jury, after retiring a short time, returned into court,
having found a verdict for the plaintiff:—Damages, £170.
