Anderson v Hughes [1838] NSWSupC 15 (28 February 1838)

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[Statute of Frauds - Brisbane Water - sale of goods, payment]

Anderson v. Hughes

Supreme Court of New South Wales

Burton J., 28 February 1838

Source: Sydney Gazette, 6 March 1838^[1]

Anderson v. Hughes. The plaintiff in this case is a timber merchant, residing in Erskine-street, and the defendant is Mr. Hughes of the Albion Mills. This was an action to recover the sum of £121 11s. for cedar sold and delivered.

The delivery of the cedar to the defendant was proved by a carpenter named Williams. The defence to the action was, that the cedar was not to be paid for in money but was to go in part payment of a farm at Brisbane Water. The agreement between the parties for the purchase of a farm at Brisbane Water for the sum of £640 was put in, and Mr. Rogers, the defendant's solicitor, stated that at no time the agreement was drawn up, the defendant, in the presence of the plaintiff, said that the farm was to be paid for in cedar, part of which had been delivered. The reply was, that there was an agreement to pay for the farm in timber but this cedar formed no part of it; that the farm had neither been delivered nor offered, and the plaintiff's clerk proved that the defendant promised to pay for the cedar. The Judge said, that where goods are proved to have been sold and delivered the implication of law is, that they are to be paid for in money and if they are to be paid for in any other manner it is upon the party who says so to prove it. In the present case the written agreement for the sale of the farm says, that it is to be paid for in money and although Mr. Rogers recollected something about being paid for in cedar, yet that goes for nothing as the statute of frauds expressly provides that all agreements respecting the transfer of lands must be in writing. Verdict for the plaintiff, damages £121 11s.

Council for the plaintiff Mr. Windeyer: for the defendant Mr. Foster.

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Notes

^[1]See also Sydney Herald, 5 March 1838.