ALLEGED BREACH OF WARRANTY.

Gisborne Times, Volume LVI, Issue 6321, 25 February 1922, Page 2

ALLEGED BREACH OF WARRANTY.

DISPUTE OVER A BULL. j A dispute over the sale of a bull formed the basis of a civil action } heard before Mr J. S. Bartow, S.M., at the Magistrate's Court yesterday. Gil- ; bert Ernest Jones (Mr J. S. Wane hop) proceeded against Malcolm McDonald (Mr JJ. D. Clirisp), claiming £l2, the ! price of a Jersey bull sold to defend- j ant by plaintiff on October 5 last at the Matawhero saleyards, under the ! agency of the Loan and Mercantile Co., Ltd. Defendants admitted the 1 claim, but set up as a defence that the bull had proved unsound, and caused damage to defendant's herd, ; thereby establishing a breach of the warranty given by the vendor, Jones. Counsel on both sides drew the atten- j tion of His Worship to the fact that the action was of greater moment than might appear at first, to be the ease, ’ as if the defendant succeeded he would t claim £3OO to £SOO damages _on the ! ground of injury - done to his herd, ! and the consequent losses sustained j through the cows not being in calf, j and defendant missing the good season. Malcolm McDonald, defendant in the action, a dairy farmer at Kaitera- I tahi, said he had 20 cows, and had j had another bull previous to buying that now the subject of the action. By the first bull, all his cows came into j calf. Of those 20 cows he sold four i to Mr. Abbotsford Smith, and a num- | her of calves. Witness decided to go j in for a Jersey bull, as the demand for Jersey stock was so great, and he j had bought at the Matawhero sale on j October 5. the bull over which the . present dispute was caused. Previous calvings had all been clean, but this was not the case after be bought the Jersey bull from plaintiff. When Mr Jones’ bull served witess' cows the service was. to all appearances, well carried out, but witness’ cows did not got in calf. After making enquiries, witness ascertained that the bull was unsound, and he returned the the Matawhero saleyards as such. This was at the end of November, after fruitless services to witness cows, which had to be cured of the disease they had contracted from Mr Jones bull. Witness then got a Holstein bull, but the cows were still suffering from the disease, and some were not yet in C alf. Witness bad had a veterinary surgeon to lvis farm, but he only traced disease on one of four or iiie cows he examined, but-it was only a cursory inspection. Tlho veterinary surgeon sent out a remedy to be given to the cows, but it did no good. -W itness sold the Holstein bull, which- he had bought after the Jersey bull, to Mr. King, of Whatatutu, and he hart had no complaints about the Holstein

animal. To Mi* Wauchop, witness said this was his second season at dairy farming and lie liad previously been an engineer He had heard a complaint about the Jersey bull on October 20. though lie bad hoard rumors before then that the bull was not a good one. Mr Elvers had made a few notes when witness was talking with him about the merits of the bull. On October 21 witness had written to the manager or the Loan and Mercantile Co., ashing for a guarantee about the bull, as witness would not risk it amongst, his herd without it. Mr Waucliop: "But by then you ha a put the ball with your herd?” Witness: Yes. Witness admitted that he owned ore cow which had been put five times to •> Shorthorn and other bulls without coming in calf. Witness had a conversation"’ with Mr Abbotsford Smith on October 20, but despite what Mr Smith said witness had allowed the buil to run with the herd until he returned it to the saleyards. Witness had not had a veterinary surgeon to see the bull, but lie had bad an experienced man to look at it. Counsel for plaintiff cross-examined witness on the effect on his cows of ti e .Tersev bull, wliat remedial measures had'been taken in regard to the cows’ disease, and the various kinds of treatments. In opposition to witness’ rtatemente. counsel onoted Dr. C. JRealms and Dr. Gilruth. I Mr. Waucliop: “Your experience ct | dairv farming is not very great, your experience is very small. Witness: ‘‘lt was.” Counsel; "Well, it is an easy trade if you can learn it in two years.” Witness admitted that other cows had jumped the fence and been served bv tlie bull, but witness’ cows had not gone on to the road and been served by other i>pople*s hulls. r l he vet. ho examined the cows did not call the complaint disease, though he found one cow suffering from inflammation. Counsel: ‘‘Then why did you sav he found one of those examined diseased.' Witness: "Well, he said he found one of them had something wrong witn Continuing, witness said that Mr. Valentine, the vet., when asked to come arid see the cows, had said he had been engaged to look at the bull foi the other side. At the time witness had written demanding substantial dam- j ages from plaintiff on account of the alleged damage caused to the herd by the bull. ]V[r. Waucliop: fr Vou bought a new bull and put him straight away to the c-ows, without having either cows or bull cleaned?” Witness; "Well, that was net necessary, as my herd was clean and the bull guaranteed sound.” To Mr. Clirisn: “I treated my herd this season the same as last, whom I had no trouble.” Mr. Waucliop: "But for the first season you had bought your herd and bull as a going concern ?” Abbotsford Smith, a farmer and cattle dealer, deposed to knowing the bull in question, which he had seen at Mr. Jones’ place, and inspected it. Witness would have nothing to do with the animal, which appeared to be diseased. Defendant's cows, when witness had seen them, had appeared to be in good condition, and to all appearances were quite fit to be put with a good bull. Jn. witness’ opinion the present trouble was caused by the soundness of (he bull. The bull was offered to witness at Mr. Jones’ place for £S, whereas he would have been prepared to pay £lO for it had it been sound. Mr. Waucliop: "You mean you would have given £lO had the bull, in your opinion, been sound?” Witness: "Yes.” Ml*. Waucliop: "Did you net say to Mr. Jones, jnr., that you would have bought 1 the bull, only it was too heavy?” , Witness, after thinking: I m not sure, but I don’t think so.” Counsel: "If Mr. Ernest Jones says you did, will you call him a liarr” Witness: "I am not in the habit of calling people liars/’ Witness, in answer to Mr. Clirisp, said that the sterile cow belonging, to defendant was, in that condition through injury. George Ashton Latham deposed to Ills knowledge of the bull in question, and said that while all his cows had. calved to a bull in the 11)19-20 season, i n the 1920-21 season, when he had the use of Mr. Jones’ bull for four cows, he had got up calves from them, and symptoms of inflammation had appeared in the cows. He treated the cows, and when put to another bull, they calved. The next witness was Geo. Drummond, a machinist at the.. Kaiteratalii freezing works. He stated in evidence that he had sent some good sound cows to Mr. Jones’ bull, but had got none of them in calf, though one had later suffered from a discharge after returning from the bull. To Mr. Waucliop, witness said it was his own son who had taken the cows to the bull, which, at the time was owned by defendant. The local Government veterinary surgeon, George Broome, gave evidence that he had inspected some of

defendant’s cows, which were suffering from an inflammatory disease, which, appeared to be irn a contagious form. This was .after the bull in question had been there. Witness detailed at length the nature of diseases to which cattle were subject und the sources of contamination.

In reply to Mr. Waucliop, witness said that he had suspicions that the disease was contagious vaginitis, but might have been caused by an infected bull or cow which had come amongst the herd.

Mr. Waucliop submitted that there had been no evidence of unsoundness of the bull, but there had been evidence that the cows might have contracted disease from other . sources. Counsel quoted authorities on the definition of unsoul) dness in animals, and drew attention to the fact that the buil had not been examined by a veterinarian. The fact of an animal being a stock getter was always the subject of a special warrant, and did not come under tlie heading of soundness. His Worship said that he saw Mr. Waucliop‘s point, but be would have to look up authorities. On the evidence before him there had been nothing to show that the bull hud ever got a calf. Mr. Waucliop said evidence would bo called to show that the bull was sound, and a stock getter. Frederick Valentine deposed to his knowledge of the bull in question which, at Die request of Mr. G. Jones’ son, he had examined at the Matawliero saleyards. Witness found, tlie animal perfectly clean, lie proceeded to detail the result of his examination of defendant’s cows, which, he asserted, might have been rendered sterile I bv’ the strong disinfectant used by defendant. Witness bad found only one cow suffering from an inflammatory complaint. To Mr. Clirisp, witness said that in his opinion it was the use of stiong disinfectant in washing out the cows , which had caused sterility in the herd. Mr. Clirisp: "If defendant swears ‘ that he had not touched the cows before the first service and yet they bore no calves, can you assign any reason r* Witness: “No.” Mr. Clirisp: "Is it possible that there was anything wrong with the bullr Witness: "Ho.” Mr. Clirisp: "Why?’’ „ Witness: "Because I examined linn. Mr. Clirisp: "Will you swear that the bull had no disease?” Witness, after hesitation: "No. He might have had some internal disease. Alfred Walker, an uncertificated veterinary surgeon, deposed to having examined the bull in question, but found nothing wrong with him. The term "sound” iix sale of a bull uid not mean it should be a stock gettei. To Mr. Clirisp: From the examination lie made he could not tell whethei the bull was suffering from a certain disease. Even if the bull was put to 20 cows and did not put one m calf, that would net affect its guarantee as "sound.” The cows could get vaginitis from other sources than the bull. ; Alan Lange, in charge of the Alatawliero saleyards, said he knew the bull well, and it looked an absolutely sound ‘ animal.

Gilbert Ernest Jones, plaintiff, said be had bred and owned the bull in question whicdi had been sold on October 5 for £l2 at the Matawhero sale. He had found the bull satisfactory and lmd seen, that he was all right when he went to the saleyards. W it-

ness did not, however, guarantee the bull to get calves, though lie guaranteed him sound. V itiiess sold the bull because he was going to V airoa. To Air. Clirisp: “If he knew a bull was impotent, however, he would not put him m tlie saleyards as ‘sound.’ ” AIT*. Clirisp: “What do you think is the reason wliv not one of defendant s cows is in calf ”

AYitness: “It is remarkable. The fault sometimes lies with the cows, and I have the bull's past record,”

To the Alagistrate: “The bull had never before the sale been treated tor

any disease.” At this juncture Air. Waucliop asked if His Worship had not heard enough evidence. It appeared that for the plaintiff the evidence was only being duplicated. If is Worship commented that a great quantity of evidence had been taken, and lie would have to go through it before he could make any decision. The ease was accordingly adjourned till next week.