Claim on sale fails

Press, Issue 33842, 14 May 1975, Page 5

Claim on sale fails

A claim for more than $5OOO arising from the purchase of a colt after it was passed in at the annual New Zealand national sale of stan-dard-bred yearlings at Canterbury Court in March, 1974, has failed, Mr Justice Casey has held in a reserved judgment given in the Supreme Court.

Allan Bede Holmes, a farmer, of Yaldhurst, claimed $5OOO, the purchase price of a colt sold by him to Algar Hamilton Burgess, a workman, under an agreement made at the sales after the horse had been passed in. t

Mr Holmes also claimed $991.50 from Mr Burgess for the care of the horse since it was returned to his possession.

Mr Burgess admitted the agreement to purchase the colt for $5OOO but pleaded that this was induced by innocent misrepresentation as to its soundness. He claimed that the colt had a breathing restriction in the left nostril, and he stopped the payment on the cheque for $5OOO and returned the horse to Mr Holmes.

Alternatively Mr Burgess pleaded that the representation was a condition of the contract entitling rescission and finally he pleaded a breach of warranty for which he counter-claimed damages of $5OOO and for special damages of $lO7 for the cost of caring for the colt for 10 weeks and five days, and veterinary costs of $2O.

His Honour upheld Mr Burgess’s counter-claim for $127, and gave judgment against Mr Holmes for that amount and costs. The claims were heard on April 9 and 10, when Messrs

R. A. Young and W. G. G. A. Young appeared for Mr Holmes and Mr C. B. Atkinson for Mr Burgess.

The black colt involved was by Armbro Dell out of Sakeba, and was foaled on September 1, 1972. In his statement of defence and counter-claim, Mr Burgess said that Mr Holmes and his agent Thomas Henry Gleeson, a trainer, had told him that the colt was “as sound as a bell” and Mr Gleeson had said that he would “back his house and farm on the colt.” As a result of those representations as to the quality of the colt Mr Burgess said that he agreed to purchase it.

In his decision his Honour said that he was faced with

a conflict of evidence over whether any representation as to the soundness of the horse was made by Mr Holmes during the discussions immediately preceding the sale. He preferred Mr Burgess’s evidence on that point.

“I am satisfied that the statements about the soundness of this colt became a term of the contract of sale subsequently made by the parties,” said his Honour. Mr Burgess took proper steps to repudiate the deal as soon as he learned of the defect, and the animal was duly returned to Mr Holmes. Therefore, Mr Holmes’s claim for the purchase price accordingly failed, said he Honour.