Thanks to a Lost Cousins connection I suspect that the Mr Thomas Barrett of the Saracen's Head, near Wye bridge mentioned in this article, is likely the first child of Francis Barrett and Catherine Pritchard of Herefordshire.
Thomas Barrett was born on 24 Apr 1820 in Burghill, Herefordshire, England and he married Esther SLACK on 10 Feb 1848 in Hereford, Herefordshire, England.
The Mr Pritchard mentioned in the article is likely Edward Pritchard, Thomas Barrett's uncle...
Hereford Times - Saturday 20 August 1853
COUNTY COURT— Thursday, Before J. M. Herbert, Esq. Breach of Contract.—The only case of interest at the County Court, held on Thursday last, was an action for breach of contract, in which Mr. Thomas Barrett, of the Saracen's Head, near Wye bridge, was the plaintiff, and Mr. John Banton, of Ross, the defendant.—Mr. Pritchard, who appeared for the plaintiff, stated that, Mr. Barrett being about relinquishing his business with a view of emigrating to Australia, the defendant entered into agreement to take to the stock, fixtures, &c, of the Saracen's Head a valuation. Mr. W. James, the auctioneer, was appointed valuer on behalf of the plaintiff, and Messrs. Morgan and Son, of Ross, on the part of the defendant. The valuation amounted to £511, and agreement was drawn up in which these words were inserted, " Either party neglecting to fulfil the terms of the contract, is to forfeit the sum of £50 liquidated damages.' The contract, he should show, was afterwards broken the defendant, and the present action was brought to recover the £50 damages under that agreement. What the defence would be, he did not know, but he thought it probable that this sum of £50 would be said to be a penalty and not liquidated damages, and that the plaintiff was only entitled to recover for any actual damage which he might have sustained the non-fulfilment of the contract. The words the agreement, however, were so clear that could not imagine his Honour would have the slightest difficulty in distinguishing between penalty and liquidated damages.—Mr. Lanwarne, for the defendant, said that Mr. Pritchard had quite anticipated the point he was about raise, and quoted several cases, analagous to the present, in which it was decided that, although in the agreements the sums were described as ”liquidated settled damages to be paid and forfeited without deduction”, they were in fact penalties and not liquidated damages. In the case of Davies v. Penton, Chief Justice Abbott made this remark —" A great deal has been said about the different import of the words penalty and stipulated damages, but I am of opinion, and shall always be so until has been otherwise determined by the higher Courts, that, whether the terms penalty or liquidated damage be employed, the party shall only be allowed to recover what damage he has really sustained." Mr. Justice Bayley also says, " Where the sum which is to be accrued for the performance of agreement of which there are several acts, will, some instances, be too much, and others too small a compensation, for the injury thereby sustained, that sum is to be considered a penalty." Now in the present agreement there were no less than five stipulations : first, that he should take to the premises secondly, have the effects valued on cer-day; thirdly, take to the agreement by which the premises are held under the Corporation ; fourthly, pay a particular sum a particular time; and fifthly, that he is to do everything in the agreement or forfeit a penalty £50. He (Mr. Lanwarne) therefore submitted that the plaintiff was only entitled to recover for any actual loss proved to have been sustained. —The Judge remarked that the Courts had always struggled to get at the real amount of damages sustained but he thought the present discussion premature. —Mr. Pritchard, reply to the objection, quoted the case of Lowe v. Pearce, in which the defendant agreed to pay to the plaintiff £1,000 if he married any person but herself, the forfeiture being there held to be liquidated damages and not a penalty. He also quoted Fletcher r. Dowle, and other cases, from which he drew the conclusion that, where the forfeiture was larger than the sum to be paid under the contract, it must be considered penalty and not liquidated damages. In the present instance the forfeiture was £50, the contract £511. —Mr. Lanwarne replied that the cases referred to by Mr. Pritchard quite confirmed the view which he had taken, viz., that where there one specific act, the breach of which incurred a fixed penalty, as in the case of Lowe v. Pearce, it was to be considered liquidated damages; but when there were five or six, the non-performance of any one of which would a breach of the contract, it was considered as a penalty and the party could only claim for actual damage sustained —His Honor was inclined take Mr. Lanwarne's view of the case, and quoted from Chitty very strong opinion of Chief Justice Tindal on the point.—After some discussion, Mr. Wm. James was called, and deposed that he was employed behalf of the plaintiff to value the effects at the Saracen's Head, Messrs. Morgan of Ross being engaged on the part of the defendant, who formerly kept the Royal Hotel tap at Ross; the stock, fixtures, &c., amounted to £511; the defendant was put in possession on the Monday, and remained so until the Wednesday, when he gave up the key to the plaintiff. A proposition was made by the plaintiff that the defendant should pay £140 down, and give joint notes of hand for the payment of the remainder from persons of responsibility, at three, six, and twelve months, and that £100 should remain until it would be more convenient for him to pay it. After making one or two attempts, defendant failed to give the required security, and gave up the premises. The defendant called at his house once or twice before the agreement was prepared, when he told him that the plaintiff's reason for leaving was that he was about to start for Australia ; defendant asked him what he thought the amount of the valuation would be ; he replied he could not tell within £20, but said it would amount as near possible to £500 and that it would be useless for him to think of entering into it unless he could command that sum. His answer was, “I know what my stock will fetch Ross, and I can command £.500 at least. In consequence the contract not being fulfilled, Mr. Barrett had been obliged to keep possession of the house, after having gone the expense of erecting a wooden house, and made extensive preparations for emigrating to Australia; witness' charge for making the valuation was 2 1/2per cent., which, with the stamp, and some other expenses, amounted to £13 10s. 2d. ; he should consider the sum of £50 very inadequate to remunerate the plaintiff for his loss.—Cross-examined : Knew that the plaintiff had gone to considerable expense in making preparations, but could not give any other specific item of loss except the £13 10s. 2d. ; he could not, of course, tell whether the going to Australia would have been an advantage or a disadvantage to the plaintiff, and had not taken into account, in the sum he had mentioned, the probability of his success in Australia ; plaintiff had been at some expense in erecting the wooden house to take with him ; and he did not consider it a saleable article, inasmuch as not one person in a thousand who emigrated to Australia thought of taking a house with them; the defendant was the occupation of the premises, and received the money for what was sold from the Monday afternoon until the Wednesday, it being usual for the incoming tenant to receive all money soon as stock had been taken by the excise officer, but he had been informed by Mr. Barrett that the defendant had handed over all the money which he received; he should say that very good trade is done at the Saracen's Head, but probably not so extensive it was prior the closing of the tram-road. —Mr. Barrett, the plaintiff, deposed that after the agreement was signed and the valuation made, as described Mr. James, he saw the defendant and asked him if he was prepared to pay the amount; he said that Mr. Morgan would be there presently, and they would try and get the matter settled ; Mr. Morgan shortly afterwards came, and the defendant then said that he had been disappointed in letting his house at Ross, and that his stock had not fetched anything like so much he had expected it would; plaintiff offered to take bills for £311, saying that he would leave £100 in his father's hands upon approved security ; defendant took possession on the Monday, and remained there until the Wednesday, receiving the money for the drink which was sold ; on the Wednesday he (plaintiff) met the defendant, Mr. James, and Mr. Morgan, at the Green Dragon, when the former said he could get no one to join him in bills for the amount; plaintiff asked him what was to be done, to which he replied, "You must take to the place again." After some little difficulty, the money which the defendant had received while in possession of the premises was returned; the wooden house, which cost him £29 13s, was partly finished when the defendant threw up the contract, and he (plaintiff) had expended a further sum of £20 on his outfit; altogether he had spent about £60 in making preparations for starting, independently of the expense of the valuation; he had been offered £10 for the house; he was least £30 out pocket, including Mr. James' charge, in consequence of the defendant not fulfilling his contract. —Cross-examined: Saw defendant Ross on the Sunday before the agreement was executed; the forfeiture of £50 was objected to, and the substitution of £5 suggested, to which he would not consent; defendant said that perhaps should be £100 deficient, upon which he (plaintiff) agreed to allow it to stand over for twelve months; had not given up all idea of going to Australia, but had no prospect of letting his house; defendant offered to pay him £140, including bill of £60, which he refused to take, because he knew nothing of the parties by whom it was drawn, and to give bills for the remainder, but this he declined to accept; had never said that he was glad it had ended as it had, and that he would go back into the business; the outfit consisted of boots and shoes and clothes, which are worth, to any one who wanted them, as much he gave for them, but he should find it difficult to dispose of them for half what they had cost; if he ultimately went to Australia, they would available.—Mr. Lanwarne contended that the question for his Honor to decide was the actual amount of damage which the plaintiff sustained. Mr. James had estimated that damage at £50, while the plaintiff himself estimated it at £30. Mr. James's claim of £13 he admitted he could not get rid of; but, with regard to the wooden mansion which the plaintiff had built, he certainly thought it rather a peculiar way of estimating the loss to say that he had been offered £10 for it. If any person about to emigrate required such a thing, he would readily purchase it at a premium of £10 rather than a loss of £20. It would take no harm by remaining for short time—on the other hand, the wood would become more thoroughly seasoned. The plaintiff, he therefore contended, was not entitled to compensation on account of this house. And, with regard to the outfit, a few pairs of boots and shoes were no ill store, and it was well known that articles of that description improved by keeping. -The Judge: But people cannot afford to lie out of their money. Mr Lanwarne: We are consistently told that there is not a better investment for money, if a man wants to make his fortune, than by buying boots and shoes “green” and keeping them hung up until they are seasoned. -The Judge: I have seen such announcements respecting Moses and Sons' clothes; but not boots and shoes. (Laughter.)-Mr Lanwarne: Moses and Sons' clothes will wear to pieces, but is well known that boots and shoes improve by keeping (laughter) ; therefore, I contend that, upon this point also, the plaintiff is not entitled to compensation. His Honor asked the plaintiff was disposed to take the small amount (£30) at once, without his considering the question of liquidated damages.-Mr. Pritchard assented —Mr. Lanwarne hoped, in that case, the defendant would be allowed the house and the stock of boots and shoes and he would not then object to the decision. (Laughter )—His Honor: You can have them by paying -£29 10s. for the house and £20 for the outfit – Judgment was then given for £30 with expenses, £10 of which was paid at once, and the remainder to be paid by monthly instalments of £5.
