SUPREME COURT

New Zealand Mail, Issue 1628, 13 May 1903, Page 58

SUPREME COURT

JUDGMENTS DELIVERED THE BALLANCE DAIRY COMPANY. On Friday the Chief Justice gave judgment in tho appeal of the Rallance Co-operative Dairy Company v. Holiben and Kirke, which was heard on the 6th in,St. The appeal was against a decision of the Stipendiary Magistrate at Palmerston North in October last nonsuiting tho plaintiffs in an action arising out of the laying down of certain floors in creameries belonging to the plaintiffs at Ballance and Konini. It appeared that the respondents originally sued tho appellants for goods supplied and work done, the claim being for £6O 7s 6d as the balance due on an aocount of £260 7s 6d. The Magistrate disallowed certain items, and gave judgment for £36 3s 9d. The appellants then sued tho respondents for failing to carry out tho work in a skilful and workmanlike manner, and on the ground that the floors, when completed, Tvere not according to sample, and were useless for the purpose for which they were intended. When the case came before the Magistrate the appellants were nonsuited with costs, and against this decsion the appeal was brought. His Honor in the course of a lengthy judgment, held that though the Magistrate’s first decision was illogical, the appellants could not now say they coufl sue in the action because it was decided they were principals, and consequently they could not succeed in the appeal, which should be dismissed, with seven guineas costs. He did not think it was a case in which he should allow a further appeal. Messrs Bell and Cooper appeared for tlie appellants and Mr Skerrett for the respondents. THE SALE.OF “FIRST SHOT.” Yesterday tho Chief Justice gave his decision in an appeal heard on the 6th inst. from a decision of Mr Greenfield, S.M., at Palmerston North, in the case of Charles Albert Loughnan v. Cumberland McDonnell, in which the plaintiff was nonsuited and ordered to pay £3 costs. Plaintiff claimed a sum of £SO for breach of warranty in connection with The sale of a horse called First Shot. He had purchased the animal in July, 1902, it being warranted to be “a qualified hunter” within the meaning of that term, as defined in the racing rules. It subsequently transpired that the horse was not “a qualified hunter,” and as a result in re-selling the animal

plaintiff stated ho got £SO less than h© would otherwise have obtained.

His Honor, in the*bourse of Ims judgment, expressed the opinion that if a man was asked as to the character of a horse he was selling, and replied affirmatively, as in the present case, that amounted to a warranty. It was not a mere opinion, but was the statement of a fact which could only have been known to the seller or the person who certified. This horse was being sold as a hunter, and though qualified in May was not so qualified in July. The rule was, what was the value of the licrso with the warranty? and what was the value of the horse without it? That the Magistrate must find. The noiy suit should bo set aside, and the case remitted to the ’Magistrate to award -damages. Costs - seven guineas should be paid by the respondent.

Mr Skerrett appeared fer the appellant, and Mr Moore, Palmerston North, for the respondent.