Edmond Weil Incorporated v Russell - [1936] HCA 26

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EDMOND WEIL INCORPORATED RUSSELL

ON APPEAL FROM THE SUPREME COURT OF

NEW SOUTH WALES. Practice-Action-Specific questions answered by jury-Jury discharged without

finding formal verdict--Verdict to be entered-Conformity with jury's answers- Duty of judge. SYDNEY, May 1, 4, 5.

Where a jury answers questions and is discharged without finding a formal verdict the court should enter that verdict which flows in law from the answers. MELBOURNE,

To enable a trial judge to set aside or ignore findings made by the jury and enter a verdict inconsistent with them, the positive consent of the parties must have been obtained, either by an express reservation of power made with their assent, or in some other manner.

So held by Dixon and Evatt JJ.

APPEAL from the Supreme Court of New South Wales.

An action was brought in the Supreme Court of New South Wales, by Edmond Weil Incorporated, of New York, United States of America, importers and exporters of hides and skins, against William H. Russell, of Sydney, New South Wales, hide and skin merchant, to recover certain moneys upon a balance of account in connection with certain trading transactions between them. Particulars of the claim and of the defence were filed by the respective parties. In his particulars the defendant denied indebtedness except as to the sum of £178 13s. 6d.

56 CLR 35

Pursuant to an order made on the application of the plaintiff, pleadings were dispensed with, and the cause was heard as commercial cause before Halse Rogers J. with a jury. One of the issues directed for trial was whether the plaintiff was entitled to recover from the defendant in respect of certain transactions any, and if SO what, amount in excess of £178 13s. 6d. One of these transactions (referred to as the Brodsky transaction) involved a shipment of 150 Queensland wet salted hides, which after some considerable delay were sold in a defective condition and produced but a small return. The plaintiff credited the defendant's account with the net proceeds. The defendant, however, claimed that he was entitled to be credited with the invoiced price of the hides, that is, the sum of £508 3s. 1d.

Included among a number of questions left by the trial judge to the jury was the following: " Is the defendant entitled to charge the plaintiff and to deduct from its account, £508 3s. 1d. in respect of 150 Queensland hides (the Brodsky transaction) ? ,, The jury answered the question "Yes." The other questions, which are not material for the purposes of this report. were answered in favour of the defendant. Thereupon it was agreed that the jury should be discharged SO that the trial judge might direct what the verdict should be. Argument ensued, after which the judge, on the ground that there was no evidence upon which the jury could answer the question in respect of the Brodsky transaction in favour of the defendant, directed that a verdict should be entered in favour…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1936] HCA 26
Decision Date: 9 June 1936

CaseChat Overview and Summary

Edmond Weil Incorporated (the plaintiff) sued William H. Russell (the defendant) in the Supreme Court of New South Wales to recover moneys owed on a balance of account arising from trading transactions. Pleadings were dispensed with, and the matter was heard as a commercial cause before Halse Rogers J. with a jury. A key issue was whether the plaintiff was entitled to recover an amount exceeding £178 13s. 6d. from the defendant, specifically concerning a transaction involving 150 Queensland hides (the Brodsky transaction). The jury answered a question posed by the judge in favour of the defendant, finding that he was entitled to charge the plaintiff £508 3s. 1d. in respect of these hides. Following this, the jury was discharged by agreement, and the judge, believing there was no evidence to support the jury's finding, directed a verdict for the plaintiff for £508 3s. 1d. on this transaction. The defendant appealed to the Full Court of the Supreme Court, which held there was evidence to support the jury's finding and reduced the directed verdict accordingly. The plaintiff then appealed to the High Court.

The High Court was required to determine whether there was sufficient evidence to support the jury's finding that the defendant was entitled to charge the plaintiff the invoiced price for the 150 Queensland hides. A related legal issue concerned the extent of a trial judge's power to override a jury's finding after the jury has been discharged, particularly when the parties have agreed to the discharge. Dixon and Evatt JJ. expressed the view that a judge could only set aside or ignore jury findings and enter an inconsistent verdict if the positive consent of the parties had been obtained, either through an express reservation of power or in some other manner. They also noted that where a jury answers questions and is discharged without a formal verdict, the court should enter the verdict that flows in law from those answers.

Dixon and Evatt JJ. concluded that the evidence did not reasonably support the jury's finding that the shipment of 150 Queensland hides fell within the plaintiff's contractual obligations to guarantee the invoiced price. They found that no definite sale had been made, no price was fixed, and no buyer was identified in a manner that would trigger the plaintiff's liability under the defendant's version of the agreement. The transaction appeared to be an experimental consignment, and when the supposed buyer refused the hides, the defendant elected to treat them as consignment goods. Therefore, the conditions that would impose liability on the plaintiff to pay the invoiced price were not fulfilled.

The High Court allowed the appeal, setting aside the order of the Full Court. It was ordered that the jury's finding regarding the Brodsky transaction be set aside, and a verdict and judgment be entered for the plaintiff for the sum of £694 1s., which represented the agreed adjusted amount. The defendant was ordered to pay the plaintiff's costs of the appeals to the Full Court and the High Court, with the costs of the trial to follow the verdict and judgment.

Orders