DISPUTE OVER HORSE

Dominion, Volume 31, Issue 241, 8 July 1938, Page 7

DISPUTE OVER HORSE

Proprietress Of Riding

School Sued

JUDGMENT FOR FARMER

A well-known horsewoman, .Miss A. M. Perry, Trentham, was defendant in a civil action brought by John E. Bentley, farmer, Taita, before Air. A. M. Goulding, S.M., in the Magistrates’ Court, Lower Hutt,' yesterday, for £2O, representing the value of a gelding. Bentley (Mr. C. R. Barrett) claimed that on April 21 at Miss Perry's request he delivered to. her a gelding for sale on approval. One of the conditions of the terms of sale, he claimed, was that the gelding had to be approved by her within seven days, or returned. It was claimed that the gelding was not refused or returned within the period stipulated. . Miss Perry, for whom Mr. It. E. .Lripe appeared, counter-claimed for £6/6/- representing the cost of caring for and keeping the horse from May 2G to date. Judgment was given for Bentley on the claim and on the counter-claim, with costs. Plaintiff’s Evidence. Bentley, in evidence, said that Miss Perry had called with Mr. I>. McCauley, a horse-trainer, to see the gelding, an eight-year-old, on April 21, and after a demonstration she took it on a week s trial, saving she would look after it. Thirteen'days later McCauley left a message at his place that the gelding had received a “kinked” neck through a jumping mishap. On May 12 Miss Berry telephoned him that the gelding had had an accident and she did not want it. He called at her riding school on May 10 and Miss Perry said the gelding had been found injured on a neighbouring farm. He told her he held her responsible as she had not returned it within the specified period of trial. Miss Perry wrote to him later witn reference to the horse you lent me on trial,” continued .Bentley. There had never been any mention of a loan and he had never known of it in connection with a sale. Miss Perry stated further in this letter that she had found, on taking advice, that she was not liable either legally or ethically and that as the gelding was unsuitable for her purposes she Propped to return it. She stated she had had it. reshod at her cost and had a veterinary surgeon attend it. In the circumstances she stated that she did not feel unde any obligation to incur any further ex pense On May 24 Miss Perry wrote again to the effect that she was satisfied that the gelding was fit enough to be Ip<l down to his farm. . . Regarding Miss Perry’s counter-claim for grazing at 3/- a day, he had grazed horses for others, and had n f' cr A more than 5/- a week a head. He knew Uot about horses. This one was pound to his knowledge; it had a peculiar gait, bU |t was “13 days’after Perry took the gelding that he first heard from her. A Mr. Duncan, who said lie. was Mi s Perry’s secretary, called on him, and he told him he would not take delivery ot the gelding, as it was no longer his. When he saw it after it was injured he said it would never be right. Colin Maitland Bentley, council employee a son of plaintiff, said he jumpe tim gelding before Miss’ Perry when she called with Mr. McCauley, Trentham.. I could not have been lame or it wo.tai not have jumped as it did. Miss lerry, with McCauley, had inspected the geldm„ was given that the term ‘‘a. week’s trial” was regarded as bein„ ela Frank Whiteman, farmer, Trentham, said the horse came on to his place, which adjoined Miss Perry’s; it would not stay in the paddock.. It did not limp but had an awkward gait. “Definite Soreness.”

Mrs. Jessie Crawford, a sister of Miss Perry, said that there was definite soreness in the gelding when Miss Pervy. whom she accompanied, first saw it. ny sorejifss she meant lameness. . Miss Perry said that at the. first inspection the gelding was limping. On the second occasion, when the horse was jumped, there was still something wrong with one leg. There was no arrangement that the £2O was to be paid if the geldin„ was not returned at the end of the week s tri Miss Perry said she gave the horse a trial the day before the seven days tfas up and found him unsound. . fche rang McCauley, who said to give him another trial. She intended to return the horse that week-end <but on the Sunday Whiteman told her it' was on his place and injured. She informed Bentley, who called on her arid said he would hold her responsible. Reasons for Decision.

The magistrate said it had been definitely established that there was a contract to return the gelding at the end ot eeven days. It would ta,ke much stronger evidence than that of a’ custom, which had been given, to convince the court that a contemplating purchaser was entitled to retain the horse any longer than the time stipulated. It might be that farmers had some such loose practice among themselves, but if Mr. Barrett relied, as he did, on the Sale of Goods A.ct, sufficient reliance could not be placed on evidence of a custom to entitle him to find that Miss Perry was entitled to keep the gelding longer. Unless he could be convinced that Miss Perry was thus allowed, the vendor, Bentley, was entitled to receive his purchase money and treat the contract as concluded. Judgment would be for Bentley on the claim for £2O. with costs £3/1/-, and on the counter-claim with costs £l/1/-.