HORSE COLOSSICAL

Dominion, Volume 27, Issue 148, 20 March 1934, Page 2

HORSE COLOSSICAL

Disputed Ownership TRAINER WINS CASE Magistrate Awards Damages Damages amounting to £125 were awarded in the Magistrate’s Court yesterday to Percy Andrew Findlay, Weilington, trainer, against C. Snell and W. Thompson, both of Paraparaumu, in an action concerning the ownership of tlie racehorse Colossicai. Defendants undertook to complete a document transferring their two-thiras share in tlie horse to Findlay. Securi.y for appeal was fixed at the amount of the judgment and costs, plus £lO/10/-. A counter-claim by defendants for possession of the horse and for damages against Findlay for wrongful detention failed as it depended on the same facts as in the first case. Mr. E. Page, S.M., was on the bench, Mr G. Joseph appeared for Findlay and. Mr. J. D. Willis for Snell and Thompson. . Findlay in his statement of claim said that by agreement dated February 10, 1933, lie and tlie defendants entered into partnership in the racehorse Colossicai, each of the parties to have a third undivided share. On November 16, 1933, each of the defendants tigreed to relinquish his share to plaintiff iu consideration of the sum of £25 payable to each out of the stakes won by tlie horse, £l5 out of. the first stake and the balance £lO out of the second. Subsequently defendants refused to execute a transfer and repudiated the agreement. Plaintiff, the statement continued, had entered Colossicai for 14 races at Woodville, Waipa and Auckland for the holiday meetings and became personally liable for the entry and acceptance fees. On account of defendants’ repudiating the agreement of November 16 and tlie ensuing dispute concerning ownership, the Racing Conference of New Zealand advised plaintiff that if the horse participated in any of the meetings he would render himself liable to disqualification. Accordingly he did not allow the horse to start. As the result of the repudiation plaintiff said he had not been able to race the horse, and so had lost what chance he might have had of collecting any stakes. Also his reputation as an owner bail suffered and the horse had received a setback in its career through being debarred from racing during the past three months. He claimed £35/15/-, the amount of entry and acceptance fees for which he was liable, and £275 general damages. “Breach of Contract.” Mr. Joseph said the case was one of breach of contract. Between February and November, 1933, Colossicai ran in ten races and obtained places in six of them, total stakes won being £2lO. Defendants therefore had got their money back and still had a shgre in the horse. Later they called on plaintiff and said they wanted to sell their share. Findlay informed the Racing Conference officials and asked them to draw up a transfer. On November 29 Snell wrote saying he withdrew what he termed an option to sell, his reason being that he had been told Findlay had been “pulling” the horse. On Deceinber 17 Thompson tele; graphed also withdrawing. For defendants Mr. Willis said it was admitted there had been an offer to buy aud sell, and if a properly worded transfer had been tendered they would have had to sign. But the transfer was not properly worded, as the phrase, payable out of wins, instead of out of stakes, was used. Defendant’s purported revocation was of no effect and could be put aside. 11. R. Sellers, secretary of the Racing Conference, aud A. Mcßeth, chief clerk, detailed the activities of the parties as they had concerned the conference. Both witnesses said that contingencies were almost invariably set down as payable out of wins and. not out of stakes. Defendant, Thompson, said that had it been set out in the transfer that payments were to be out of the stakes lie yould have signed, as.there was a definite contract to do so. Mr. Willis contended there was not a scrap of evidence that Findlay ever ' tendered a transfer in the proper form after hearing of defendants’ objection, and they were justified in refusing to sign the transfer submitted to them. So far as the damages asked for were concerned, there was nothing in the horse’s past performances to justify optimism as to its future. Giving judgment, the magistrate said the facts were not really in dispute, and it was conceded that the agreement of November 16 was a binding contract. However, shortly afterward Snell and Thompson apparently repented and raised difficulties in the way. of signing the formal document required by the Racing Conference. “It seems to me,” he said to Mr. Willis, “that tlie letter of withdrawal amounts to a repudiation of the bargain and defendants are liable. My view is that ymi are bound to carry out the contract. If yon will give me an undertaking to get the transfer signed, I wiil assess damages down to date. If von do not I shall have to consider whether plaintiff is not entitled to some further damages.”

On this assurance being given, Mr. Page assessed damages for the enforced idleness of the horse from November 16 last to .vosfordnv at £125.