TRAINERS GO TO LAW

Evening Post, Volume CXVI, Issue 61, 9 September 1933, Page 25

TRAINERS GO TO LAW

QUARREL ABOUT GALLOPS

MR. B. DAVIS WINS SUIT

(From "The Post's" Representative.) LONDON, August 5. j Judgment has just been given in a case in which Mr. Boyd Davis (formerly of Auckland) figured 4 as the previous owner of a training establishment on Roundway Downs, Devizes, Wilts. Tl^e action was for £1125, claimed under a legal charge given to secure payment of instalments of the purchase price agreed to be paid by Mr. Davis foqthe establishment known as "Anzac." ' Mr. Edward Timothy O'Sullivan, a racehorse trainer, brought the action, and Mr. Davis counterclaimed, alleging breach of a warranty that a reciprocal arrangement with regard to gallops should be continued. The case was heard in the King's Bentl* Division by Mr. Justice Mackinnon. Mr. W. I. Monckton, K.C., for the plaintiif, explained that the training establishment at "Anzac," Devizes, was sold to Mr. Davis by Mrs. Violet O'Sullivan, the plaintiff's wife, for £9000, of which £4500 was paid in cash, and a second mortgage was given to secure the payment of the balance in four half-yearly instalments of £1125 each. Only one instalment had been paid, and the action was brought in respect of the second. The warranties in respect of which the defendant counter-claimed related to gallops. Mrs. O'Sullivan had rights that were transferred to Mr. Davis. They consisted of a right to use what vjjere known as Pike's gallops, terminable in 1930, or in 1933 if Mrs. O'Sullivan exercised an option to extend. Iu1 addition, there were other gallops known as Butler's gallops, primarily occupied by another tvainei but used also by the O'Sullivans and the tenant who preceded Mr. Davis by reciprocal^ arrangement with the other trainer. There was no sort of warranty about these, gallops. ' Edward Timothy O'Sullivan, in evidence, said that he had known the defendant, Mr. Davis, in Australia. When Mr. Davis defaulted in payment of the second instalment of £1125, a deed of transfer was

RACING FIXTURES. September 13—Marton J.C. September IG—Ashburton C.R.C. September 21, 23—Wanganui J.C. September 21, 23—Ceraldlne K.C. September SO—Ktirow J.C. September 30—Foxton B.C. October 5, 7— Dunedln J.C. October «,• 7—Otaki M.R.C. I October 14—Masterton R.C. j October. 14-r-South Canterbury 3.C. October 14, 16—Avondale J.C. October 19. 21, 23—■ Wellington li|C. October 21, 23—Goro B.C.' October 2H—Wavorloy K.C. October 23— Wnlkiito Hunt. October 23—Wnlpnwa C.R.C. October "3— North Canterbury R.C. i In Australia. September 13 —Eoscbery It.C. September Itf—Koselilll R.C. Septetuber 20—Victoria Park R.C. September 23—Havrkc&bury R.C. Scptcmlier 27—Kensington R.C. : September SO October 2 4, 7—Australian J.C.! October 7—Victoria R.C. October 14, 21—Victoria A.T.C* October 2S—Moonce Valloy R.C: November }, 1, 9, 11—Victoria R.C. (Melbourne Cup). Trotting. September 10—Ilauke's Bay T.C. 'at Uutt Park) September SO—Metlivcn T.O. October 7—Xew Brlgliton T.C. October 14—Wnikato T.C/ October 21, 23—Auckland T.C. t executed by Mrs. O'Fullivan, juid notice of tliat was given to Davis. Hid wife sold "Anzac" in 3031. He Had himself had pome difficulty with tlio Jockey Club stewards and his licence was withdrawn. Ho told Davis that, nothing could be put into writing with regard to Butler's gallops. TRIP WIRE AND DITCH. lioyd Davis, the defendant, said that in 1930 ho was training at Frant, m d was looking round for another place. O'Siulivan spoke to him about "Anzac." lie told O'Sullivan that he was anxious to have gallops that were five or six furlongs straight. O'Sullivan. said he, had them, and that as long as the tenant of Butler's gallops had the right to use Pike's gallops tho tenant of Pike's would havo the right to use Butler*. As soon as he went up on the Downs to see the gallop* witness said he turned to O'Sullivan and Miked: "Tim, are you 6ure the gallops are in order?" O'Sullivan replied: "Sure, boy, everything is as I told you. So long as. the tenant of Butler's gallops can use Pike's you have the right to use Bttler's." ■ In fact, there was anxiety and trouble all tho time, and eventually a trip wire was put down between the two gallops. Witness'went to Devizes and told the police, who removed the trip wire, He also told the S.P.C.A., because if the trip, wire had not been noticed in time there would have been a nasty accident. While the Chancery proceedings 'were going oil he continued to use Butler's gallops. Further use of them was made impossible in March, 1932, by the digging of a•■ permanent ditch1. Ho left- "Anzac in June, 1932. ■ ' Cross-examined, witness said he regarded himself as•■' a fairly good business man. In buying Iris former establishment at Frant he left it to his solicitor to see that he got all he wanted in writing. What do you say you were getting in regard to Butler's gallops?—l thought I was getting what Mr. O'Sullivan promised, and that as long as the tenant of Butler's was allowed to use Pike's gallops the owner of "Anzac" could use Butler's. How long was this to go. on?— Mr. OjSullivan told me that as long as "Anzac" was used as a training establishment the Downs would be open for the training of racehorses. So that you would bo able to use.Butler's gallops for ev,er?-;-So long as "Anzae was a training establishment. JUDGMENT FOR DEFENDANT. On the evidence his Lordship said he was satisfied that; from the first Davis took the view that without the right to use Butler's gallops this training establishment was of no service to him. Davis went into possession of "Anzac" a short time before the completion of the purchase onl March 2. i Before that his Lordship held that the defendant had twice been assured that so long as ha allowed a neighbouring trainer to use Pike's gallops he would have the right to use Butler's gallops. Within a week of the thn- when he went into residence at "Anzac," defendant was, however, ordered oif the land by Mr. Butler, and there was a row. After that the defendant would not have completed the purchase had he not been assured that there was no foundation for the attitude taken up by Mr. Butler. His Lordship said that he quite satisfied that assurance was given and that it was by reason of that assurance that the defendant completed the purchase. The assurance could be treated as a contractual warranty. In any case, it was giveu recklessly, and the defendant was entitled to an abatement of the price in consequence. That abatement his Lordship fixed at £3375. The result was that there would be judgment for the defendant on tho claim. On the counter-claim there would bo a declaration that the defendant was not liable on the other outstanding instalments. Judgment was given accordingly. A stay of execution was granted.