SALE OF A "JIBBER."

Nelson Evening Mail, Volume XLV, Issue XLV, 19 August 1910, Page 1

SALE OF A "JIBBER."

A CASE AT COURT. This morning .Mr J. S. Evans, S.M., gave his reserved judgment in the action ('•. L. T;i< i>(i v. P. Yiy. This was an action for tho return of the purchase money paid for a horse or in the alternative for damages for breach of warranty. .Mr -fas. Houlker was for the plaintiff, and Mr ,J. P. Hayes for the defendant. After reviewing the evidence tho Magistrate went on to say:— "Looking then at his history from tho time of sale, the evidence shows that the defendant had some hesitation in giving the warranty of staunchness, and some, few days after the sale, before anything was done to make him a jibber. and while ho was still in the hands of Mr David Fry. who is well used to ho;s.es, he stuck np twice on the same day. Mr David I'"ry expressed some doubts about him to the witness Alee. Brougham on the second occasion. If ho had exhibited no furl her signs of jibbing than these, they might have been exl>la:ii.;l in some way, but there is no doubt- on the evidence that he is now a eonlirmcd jibber. . . . Jibbing is a vice, and a vice is not like a disease. It does not arise in a. staunch horso without emtio apparent reason. Tile sticking up on the mndllat and in the river on tho 6th February, with the subsequent jibbing in April, with all the signs of a confirmed jibber, satisfy me that tho horse was a. jibber when sold, though not necessarily to the knowledge of the defendant. . . ... It is contended that the plaintiff expressed satisfaction to the defendant, but I am satisfied that his expression of .satisfaction was qualified as to the light work only. about which ho has now. no complaint to make. The defendant in a letter of the 19th April draws his attention to the expression of satisfaction, and tho plaintiff in his letter of the 23rd April does not in express words contradict the statement in tlie defendant's letter, but in effect ho does. It was not until the Bth April that the plaintiff discovered fully that the horse was a jibber, an d'he wrote to the defendant on the 12th. I must therefore find that the defendant sold the horse with an unqualified warranty of staunchness, that at tho time of the sale the horse did not answer tire warranty. and that the time that elapsed between tho date of the sale and the discovery of the vice was no in all the circumstances an unreasonable time. The defendant is therefore bound to make good the warranty. The contract of sale was executed, and the property passed to the buyer, and there was no right of repudiation reserved by the contract. Tho plaintiff is therefore not entitled to rescind the contract, and return the horse. The action is for breach of warranty alone, and tho measure of damages is the difference between tho contract price of the horso and his value without- a warranty. Tho plaintiff, therefore, cannot recover on the first part of his ciaim. and on the alternative claim the measure of damages is tho difference between the present estimated value of the horse, viz., £l2, and the sale price £22. The proper course for the plaintiff" to have followed, after tho defendant refused to take the horse back was to have sold the horse in open market without a warranty. If he had done this he could have recovered as damages his actual loss on the resale and the reasonable cost of keeping the horse from the time of tho refusal of the defendant to take him back and tho re-snle. Not having done this, he is only entitled to the difference in value, as proved in evidence. Judgment will bo for the plaintiff for £lO. with costs as on that amount, but the defendant m,av take back the horso and repay the £22 \vi:h the costs of this action, if he does so within seven days. The co'sts will be fixed at the next sitting of the Court at .Motueka.