Supreme Court, Phillipson v. Oakden


Wednesday 7th March.
His Honor took his seat at half-past nine o’clock.
Phillipson v. Oakden.
Assumpsit—damages laid at £500.
Mr Fisher for the plaintiff, and Mr Hanson for the defendant.
Mr Fisher, in opening the case, stated that that was an action on special assumpsit, to recover £439 10s 10d, for goods supplied by the plaintiff, Montague Phillipson, merchant, of Adelaide, to John Jackson Oakden, sheepfarmer, of Tadlunga, on the Wakefield, near Mount Horrocks, defendant. The defence he (Mr Fisher) believed would be that the goods were delivered on account of another person, but he would produce proofs—
Mr Hanson offered, to save time, to admit the account, and proceed with the defendant’s case, upon which the whole question for the jury turned.
Mr Fisher consented to that arrangement.
Mr Hanson said his defence was, that the goods were received on account of Mr Stein, who had extensive transactions with the plaintiff, and had mortgaged his estate to him and Mr Bunce, in consideration of an advance of £1700 (which he received on account of wool) and a cash credit at the Bank of South Australia for £1500, for which the mortgagees went joint security. It would be proved that Mr Stein authorised the defendant to act as his agent; and, further, as he (Mr Hanson) was instructed, it would be shown that the large sum of £1500 remained at the disposal of the plaintiff—that all the expenses of supplies forwarded to the estate were charged to and defrayed from that cash credit. Yet they (the jury) had the extraordinary spectacle presented to them that day of a person who had paid himself from funds in his possession before the delivery of the goods, bringing an action in the hope of extorting payment a second time, through the instrumentality of their verdict. If that was Mr Phillipson’s act, it would have been a most disreputable proceeding; but as that gentleman had assigned his estate to his creditors, the trustees had a perfect right to obtain all the law allowed, as they could not be supposed cognizant of the position of the parties. He called
James Bunce, merchant, King William-street, who stated that he went joint security with the plaintiff to the Bank of South Australia for a cash credit to Mr Stein to the amount of £1500. Mr Stein executed a conditional bill of sale. The disposal of the £1500 was left in the plaintiff’s hands. Witness heard Mr Stein tell the plaintiff to attend to the defendant’s orders the same as if he (Mr Slein) drew them himself. Witness had no doubt the supplies sent to the station were on Mr Stein’s account. Had a conversation in May, 1848, with the plaintiff, who then admitted there was a balance of the cash account remaining in favour of Mr Stein, although he (plaintiff) had charged for supplies forwarded to the station. By the station was meant Mr Stein’s run, where the defendant was manager.
By Mr Fisher—Knew that Mr Stein rented the station from Mr Young. After Mr Oakden took the management he purchased about 1500 sheep from witness and plaintiff. They were kept at the same station. On recollection, that was before Mr Stein left. The witness stated that other sheep also were placed on the run for Bunce Brothers and Co., on the same terms as Mr Stein’s, “half the increase and a part of the wool.” Defendant also had sheep from Mr Ellis and Mr Heywood. Witness could not tell how many or on what terms. Defendant continued to manage since Mr Stein’s insolvency, in May or June, and witness furnished the supplies to the station since the plaintiff got into difficulties in May last.
By Mr Hanson—Bunce Brothers & Co. took possession of the station under the mortgage. They had to pay to the Bank £1400, nearly the whole amount of the cash credit. Mr Stein’s insolvency took place after the plaintiff ceased to supply the station.
Thomas Moulden, clerk to Bunce Brothers & Co., stated he made out the account produced at the plaintiff’s request, from a queer-looking paper written by Mrs Phillipson, which contained, among other items, one of a loan of £200 to Mr Levi, and from vouchers handed to witness. The account produced was headed “Cash paid by Mr Phillipson on account of Mr Stein.” It showed a balance of £800 in favour of Mr Stein. The plaintiff said he had supplied stores to Oakden to the amount of £400, which should be deducted from that balance.
By Mr Fisher—That paper was but the rough draft of an account, which, owing to Mr Phillipson’s neglect, was never completed; but he always admitted there was a large balance in favour of Mr Stein. The five letters produced were from the defendant. The station belonged to Mr Young. He (witness) had lately seen a bill for rent paid on Mr Stein’s account. Could not say whether it was for 1847 or 1848. It was a three months’ bill, and but lately due.
That was the case for the defence.
Mr Fisher wished to put in a letter from Mr Stein to the plaintiff.
Mr Hanson objected. He began his case on the distinct understanding that the account was admitted. If any proof were now put in, they would have to prove every item.
His Honor certainly was of opinion that Mr Hanson’s admission and opening of his case were on the understanding that Mr Fisher would deal with the defence alone.
Mr Hanson then put in the mortgage-deed of Stein’s station, sheep, &c., to M. Phillipson and J. Bunce, in consideration of an advance of £1700 and a cash credit of £1500. No. 2. Instructions for the preparation of the deed. No. 3. The account referred to in the evidence of the witness Moulden.
Mr Fisher, in reply, said the question for the jury stood thus:—Was Mr Oakden to derive all the profit and advantage of the station, and was the estate of Mr Stein to be saddled with its expenses? And not only the expenses attending the sheep mentioned in the mortgage deed, but also the sheep proved to have been sent on the run from Messrs Hayward, Ellis, and Robertson. He (Mr Fisher) would trouble the jury with a few of the letters received from the defendant. He would also call attention to some of his orders transmitted to the plaintiff, which were quite conclusive, and would, he was convinced, establish his case to their satisfaction. Here the learned gentleman read a letter from Mr Stein to the plaintiff, dated January 21st, 1848, stating that there remained about £200 station accounts, which the defendant would draw as they fell in, &c., &c., and finished with these words:—”This, my dear fellow, will settle my liabilities; and with many thanks for your kind and liberal conduct, &c., &c., &c., J. Stein.” Five letters from the defendant were read, on the subject of stores, the reception of sheep, and the terms charged; and urging attention to an application for an occupation licence for J. J. Oakden, in succession to J. Stein. Mr Fisher also called attention to the wording of the orders—some were absolutely the defeudant’s own, others signed for Mr Stein. He (Mr Fisher) had not the privilege of examining Mr Phillipson, nor could he produce his books, although the other side could call for them it they pleased. He had nevertheless produced the very best possible proof such a case was susceptible of—the defendant’s handwriting; and he had no doubt he would receive at their hands a verdict for £439 10s. He called
William James, Clerk to the Commissioners of Crown Lands, who produced an application from John Oakden for the renewal of a licence for 1848, granted in 1847 to J. Stein.
Mr Hanson could not tell what impression his learned friend’s very long speech made on the gentlemen of the jury; but he did know that the feeling predominant in his (Mr Hanson’s) mind was, that it was a most laborious attempt to bolster up a hopeless cause. His (Mr Hanson’s) first duty would be to clear up the relative position of the defendant, which his friend had obscured considerably in the course of his remarks That the defendant might be accountable to somebody, he (Mr Hanson) would not deny; but most certainly that person could not be the plaintiff. The learned gentleman ran rapidly through the facts disclosed in evidence, contending that the defendant was placed on the property merely as the agent of the mortgagees; and he put it to every individual on the jury if they would not use the same expressions in their letters and orders if they were agents on an estate like the one by which the counsel for the plaintiff sought to prove the defendant a principal. The property of Mr Stein was mortgaged to the plaintiff, who for his own security placed the defendant there; yet at the end of the year he turned round on his servant, and said, “you must pay for the things you have ordered for me.” But it must be clear to the jury that the things were not supplied on the defendant’s account, and that the plaintiff was paid for them before they were delivered. It had been observed that the books of the plaintiff could have been produced for tbe defence; but it was doubtful if any books existed previously to the assignment of the plaintiff’s property—for it could not be forgotten how difficult it was for the witness Moulden to procure date for the account which was put in; detached vouchers, and a queer paper written by Mr Phillipson (a laugh), were all the books then known to exist; and if others were afterwards fabricated, it would have been a most convenient opportunity to frame them one way or another. He repeated that, were that the action of Mrs Philiipson, it would be discreditable to him, because it was a dishonest attempt to extort money; but the case was different, if the action was brought by the parties to whom it was said Mr Phillipson had assigned his property. They might have been ill advised; but had a perfect right to improve the estate, if they thought third parties were liable. Had he (Mr Hanson) put Mr Stein in the box, he could prove nothing for the defence. The deed, the last and best witness, was put in. On that they stood; and the preliminary conversation, which alone he would detail, all merged in that. Besides, it was shown he was living on the borders of the colony, and it would have been cruel to put him to expense and trouble, when his presence could be so well dispensed with. He thought it scarcely possible to put a case in a clearer light than the evidence produced placed that of the defendant, for whom he looked confidently to them for their verdict.
His Honor summed up. Whenever a promise was made, the law implied a consideration, and that would bring them to the consideration of the material issue in that cause. The defendant did not deny the orders nor the delivery of the goods—so far there was a prima facia case for the plaintiff, and they had next to consider the defendant’s answer. By the general issue he denied the promise, or that he had received the benefit by which the law would assume a promise. Did he receive the goods simply as an agent? If so, the law would not hold him accountable. His Honor directed the attention of the jury to two considerations—first, the plaintiffs position and knowledge of the case; and secondly, the defendant’s position. His Honor was about to conclude an elaborate charge; when
Mr James requested that the evidence might be read.
Several jurors protested they did not require such a proceeding,
Mr James then asked his Honor to read a portion of Mr Bunce’s evidence.
His Honor read it all, and remarked he could not in that perceive a change of credit.
The jury, without hesitation, returned a verdict for the defendant. …