THE SELLING OF MARIE TEMPEST

NZ Truth, Issue 730, 14 June 1919, Page 5

THE SELLING OF MARIE TEMPEST

Craw Buys a Mare and says fie Was Sold 'HE-JHSSO£g)r OF A. LITTLE DEAL IN HORSEFLESH SaME-SJDELIQHTS SHED ON THE SULKY SPORT (From "Truth's" Christchurch Rep.)

.A casse!PQf#inojne4..thanv lOEdinary1 OEdinary in--iterest to-ffcbe*spo.fcf£rig community occupied>l*ie^attent!omof Mr. Justice Herdmaii at the Supreme Court, Christchurch, -ifltt Wednesday of ilast week' when,' Elizabeth.- .Craw, of 'Xiinton, near ,^. PaJmeKston ; 3Stoi*h,, J 'wasfth©i : plaintiff m 'jf an, actktt*^ga2nst£Senjamiri Jarden, . a t wSTf-knowJi' «and. prominent trainer otH?otting.-: horses m ahrtetclniMh. platatfiE. Counsel lor Jorden being--2a <tm- statement- of oiaim- plaintiff I set-out that-aboat-Janaary 1, defendant I fraudulently represented to -hat that a nW be tfeeav- possessed named Marie Tempest was eUgible^.to race-in the New Zealand Trotting Derby (run at» the-May meeting of-the New Birlghiron' Trotting CkflW aadVthat this representation iwJueed plaintiff- to pur-chase.-tl*&*ffily»f<>r £-400. As a matter of ■fact*t3ie'iffiJy at £hat*tfme WAS NOT EBIGIBIiE TO , START In the Derbyy, andthad plaintiff been aware o£ it she would not have purchased "Marie ' Tempest Plaintiff therefore as-ked'Kf or 1 a-trscission of the. agreement of sale .andspurchase jllso for the return o£*£lo(h<p^idxas deposit, and the return of thr,ee» post-dated cheques,, each for £IWT. > . The defendant denied" the allegations' and further claimed that if there were any misrepresentations -they were made m good-faith,, after proper inquiry, and further contended that the plaintiff purchased the ifLQy after due examination and*- on -her" own judgment. After <rpening theicase for the plaintiff, Mr- Wright called George Craw, farmer and ftaxmiller, at Linton, near Palmerston North, and vice-president of the Manawatu Racing Club, "who ■ said forsyears'he had owned and graced - trotters, hut up , the time of the purchase of Marie Tempest -his- mite had never owned a trotter. Just before Chrtbtmas last Jarden paid witness a friendly ■ visit end inspected the . horses. At that time-witness had some' yearling^ entered- for the 1920 New Zealand Trotting Derby. Payments had to be made-ifrointfEtaie to 'time,; the. race, being run whenr the ftrases reached three*year-o-Ms. ' 'She race- -was valued: at £SW), but ifMliefperiodtcal 1 payments were not made any candidate nominated dropped. out. The winner of ih& Derby is regarded as SOMETHING ABOVE THE ORDINARY, and the value would be enhanced by the- fact that a horse had won the race. During the conversation at Paimerston Jarden said he had one yearling entered for ttoe Derby, a late entry, as the New Brighton Club had extended the date of ' entry. This re- ' ferred to the 1921 Derby, but Jarden said the New Zealand Trotting Association had thrown out the late entries. This interview occurred on Jarden's way up to Auckland, and the same evening Jarden showed witness Marie Tempest, but nothing was said about selling her, but witness, understood that Marie Tempest was m all the Trotting Derbies. Jarden proceeded on to Auckland, the race meeting opening on December 27. Witness and Mrs. Craw (went up later and were present on the second day. Witness saw' Jarden on the course and Jarden invited him and- Mrs. Craw out to the track to see Marie Tempest work next morning; The weather- -.was . wet -and witness did not go to the track, but that evening Jarden- and his brother called to see witness at the Metropolitan Hotel. In- the course of a general conversation about trotting, Jarden said it was a pity Craw and his wife (had not gone out to see the trial, as Marie Tempest had run a quarter m 29secs., and a half mile m lmin specs. Witness thought she may have done the time for ttie half> but he doubted the time for the quarter. Jarden then mentioned that he was going to sell Marie Tempest, but witness said he had no intention of buying the filly, but he would < see Mrs. Craw and see what she thought about it. Jarden said the filly would be SOLD WITH , ALL. ENGAGEMENTS, which included a race on the final day of the Auckland meeting and the Derby at New Brighton. Jarden said that he would "want to train her till after the Derby at New Brighton and the Champion Stakes m Christchurch. Jarden also said that the filly could not lose the last race on the final day at Auckland, but most of the discussion centred m the filly's chance m the New Zealand' Derby and the Champion Stakes. There was v no suggestion that she was not eligible to race m the Derby. Next morning witness saw Jarden again and witness said that he could not induce Mrs. Craw to buy the filly, but advised Jarden to ta-lk it over with Mrs. Craw. Jarden did so, and .when asked why he wanted to sell the filly if she was as good as he made out, Jarden said he was disposing of all his interests m horses and he intended to go m foiv training only. He offered to' sell the filly for £400 cash and £ 100 out of the first win, and stated that he thought she would yin the Derby and : Champion Stakes, but If she were sold he wanted to have ' ' the training of the fllily till those races were run. Jarden also said it would be nice for her to own the Derby winner. Eventually Mrs. Craw decided to purchase the' flily; Jarden to train ; her at 30s per week, and 33 per cent. of 'the winnings.- Witness then gave Jarden a cheque for £100, and three post-dated cheques for £100 each, "dated April 1," July 1, and October 1, f; the ' remaining £100 of the purchase ?hi6ney to be paid out of the firsts win. ' Nothing was said about Marie Tempest 'being ineligible 'to run m the Derby. Had thero been any mention of such, witness would never have advised Mrs. Craw to purchase her. It was also decided then that witness and his wife should make the trip to Christchurch m May and see the filly run m the Derby. The following day witness «aw Marie Tempest run second m the -final event at the Auckland meeting, garden drove the filly, and witness was not at all satisfied with the way he drove the race. The following morning, Friday, January 3, Jarden came. to witness and Mrs. Craw and said that Tie found Marie Tempest was m at Forbury Park, and was on a better mark than she was at Auckland and that she was SURE TO WIN THERE. Witness found that this was. not cor-' \ r~rect, and his suspicions were aroused, Vrf and on making inquiries, found that \ Marie Tempest, was not eligible to run Mn the Derby. It was while on the "Wellington racecourse that witness ftrand this out. Jarden was also on tfte. course, and witness saw him and asked about the matter. Jarden, after gome hesitation, saici there was some bother about several late entries for th& race, which might be thrown out, but he thought it would be all right. Witness intimated that he did not think Mrs. Craw would have bought the filly had she thought she could not. compete m the Derby, as that would make all the difference to Mrs. Craw. Jarden again said that he thought itwo-ilrl be all right. Witness then told his Wife the position/and. she then instruct-' . ed her solicitors to write Jarden canOeSHiJS the contract entered into for

the purchase of Marie Tempest, and demanding the Teturn of the cheque for £100, payment of the post-dated cheques having been stopped. Counsel then put m correspondence which passed between both plaintiff and defendant's solicitors, and also .one letter of the secretary of the New ijßrtghton Trotting Club, who explained i&haUa payment had fallen due on Demember 1 for the Derby of 1919, but owing to the epidemic many owners ishad missed the payment, and it was to extend the payment day toll December 2. Other horses were then ipaid up for and included Marie Tem3pest. The New Zealand Trotting As;sociation went into the matter and deIdded that the New Brighton Club had sno power to extend the date of the jpayment, and therefore those horses ■paid up for subsequent to noon on /December 1 iwere ineligible to run. Continuing- his evidence, witness said >ihe never insisted upon Marie Tempest racing on the last day of the Auckland .meeting. Mr. Gresson: Before this occasion fln Ralmerston, how long had you known {•Jarden:? — Only since last November. ""'Now', at your place the' question of ithe'club having refused the late riomiinations was discussed? — Yes, but only 'with reference to yearlings. Did not you know that the nominations for the 1919 and 1920 Derbies 'took place on the same day?— -No. Why didn't you? — Because I had (three yearlings I purchased m 'ChristIchurch, also a two -year- old and,, a 'three-year-old. Did. you know that Jarden was-inter-ested m the Derby? — We only spoke, '.about yeai'lings wihen discussing the 1 question of late , entry. But ' you know that he 'had Marie OZempest m the- Derby 2-^He. told. me m that he EXPECTED TO WIN ALL THE DERBIES with Marie Tempest. So that what you say is this: That at the interview at Palmerston, Jar-

(An Auckland Lawyer.) A meed of praise for Selwyn Mays, For he deserves it fully; Inside of court he's aye a sport, Who'll never bounce or bully; And when Ihe pleads, the court, it heeds His weighty words and phrases; He flgihts for right with all his might, That's why we sing his praises.

■den specifically mentioned 'his yearlings, but not his three-year-olds? — That is so. Nothing was said about Marie Tempest? — Only that he thought she would win m Auckland, also all the Derbies.' Did you know on December 18 that, the late entries were declared void? — I first knew when Jarden told me. . Did you know that the question of late entries affected more Derbies than one? — No. Why didn't you? — Because I did not know that the payments for other Derbies closed at the same time as the entries of yearlings. Now, as a matter of fact/did you not go to Jarden and say you had a peculiar bit of business? — Yes. Did you tell Jarden that you wished to buy a filly because you wished your ■wife to take an interest m trotting? — Yes. Did you not say that you wished to purchase the filly because of your. wife being jealous of letters received by you from a lady interested m trotting m Christchurch? — That was not it. Did you want your wife interested m trotting?— Yes. And you wanted to purchase a good, one? — Yes, because I said she would like to see her colors winning, and that she could go around the meetings with me. But you know we cannot guarantee them to win? — Oh, no. When did Jarden iirst tell you that the filly was m the Derby? — He. told me m the Metropolitan Hotel when he was with his brother, and also said he thought she would win. Is your memory good on the matter? — Yes. Now. about the agreement of the sale. Do you remember the terms? — Yes. And what did you tell your solici- j tors ? — £400 cash and £100 out of the j first win. ' j You are on your oath. Now did you say anything about the £100 out of the first win until three or four days a g O ? — i am not sure. Did you instruct your solicitors that the price was £400? — I understood we told the solicitors the whole conditions. It may 'have been AN ERROR ON THEIR PART. How did you come to get this receipt during the last few days?— Mr Wright asked me for it. . Where did you find it? — It was.in the house all the time. .', •■ His Honor: I want to get this quite clear Mr Craw. You were told by .Tardin that Marie Tempest was m the Derby?— Yes. And this was true? — Yes, but he said that all the payments had been made. Mr. Gresson: Now you have said that at the time of the purchase of Marie Tempest you did not know the terms and conditions of the Derbies? — Yes. ' • Now, as a matter of fact., did you not ask the secretary of the Manawatu Trotting- Club, to, write to the "Trotting Journal" asking- particulars of the Derbies?— Yes. ' Did you not see this reply (a letter)? —I cannot say that I did. I put it to you that you may have made a mistake and that the race Jardin referred to was the Champion

Stakes, and not the Brighton Derby, even though Jarden may have referred to the Champion Stakes as a Derby ? — Not at all, he mentioned both races. Now, if the filly had won the Cham* pion Stakes, you would have been satisfied with your bargain? — Not if I had been misled or been "had." I am not asking you that. Both races are of equal value run under the same conditions ?— Yes, but a horse could win both. Possibly so, but Is not one race as good as the other? — No, although they aro of the same value, the Derby is more widely known. Didn't Jarden say it would- be nice for Mrs. Craw if she had the Champion Stakes winner? — No, he distinctly said the Derby. I put it to you that all Jarden's references applied to the Champion Stakes and not the Derby? — Not at all. "With reference to the Forbury meeting, which you say aroused your suspicions, do you not know that the meeting was postponed through the epidemic from November to January, and then further postponed and all entries cancelled *>by the/ club?— Mr. Jarden did not tell me that. Now, with regard to her start on the last day m Auckland, was not the question of whether Marie Tempest should start or not discussed? — No. Mrs Craw could have scratched- the mare had she choose? — I suppose so. Did you and Jarden not discuss the matter? — No. Before he went out, Jarden said he did not know how she would go m heavy going as he had NOT TRIED HER IN HEAVY GOING . at home. She ran second m 3mins 42secs? — Yes, j And maiden races are 3mina 50secs class and therefore she would not be much use m a maiden race? — Yes. What arrangements were made about entering the filly for future events? — Any events, outside the New Brighton Derby and a race at Forbury Park, that Jarden thought would suit her, he would write and suggest to us. Did Jarden tell you he was not sure she was m the Futurity Stakes at Taranaki? — I think he did. and I found out later that she was -m the race. Andrew I. Rattray. secretary of the New Brighton, Metropolitan, and other clubs, said m connection with the New Zealand Derby the first payment had to be made when the candidates were yearlings, the second payment on December 1 when they were three-year-olds, and the final payment on March 1. Witness said that the first payment for Marie Tempest had been made, and on December 1, the second payment was due not later than noon. The time was extended till December 2 at noon, and Jarden called at 2 p.m. — too late. Marie Tempest's nomination then absolutely ceased. In witness's opinion, the fact of a horse being- a possible Derby winner enhanced the value. There was no question, m witness's opinion, that the New Zealand Derby was a more important event than the Champion Stakes. Witness was secretary of both clubs and from a breeders' point of view the New Zealand Derby was "the" three-year-old classic event. Mr Gresson: It is no harder to win the Derby at New Brighton than the Auckland Derby? — The best horse always wins. ((Laughter.) His Honor: Supposing you bought a horse with an engagement m the New Zealand" Trotting Derby, would that fact be of any great importance to you? — It would. And supposing you subsequently found your purchase was not eligible to run m the Derby, would that make any difference to you? — I should feel very grieved. Robert Wallace, a trotting official for more than one club, gave evidence on the lines similar to that of Mr Rattray, except that h e didn't say the best horse "always wins." Elizabeth Craw., plaintiff m the action, said she remembered going to Auckland with her husband at Christmas time last year and having a couple of conversations with Jarden. Her husband told her of a conversation l ie had had with Jarden, and subsequently she saw Jarden m the sitting-room of the Metropolitan Hotel. Jarden asked If she was going to buy the filly and her husband asked Jarden to tell her all about the filly. Jarden then detailed times and trials the filly had shown him, and he mentioned she was a likely winner of the Derby, and that she and her husband could come down to Christchurch and see her run m the race. SHE WAS INFLUENCED by the talk of the filly's chance of winning- the Derby, and but for that would not have purchased her. The price was £400 cash. and £100 cut of the first win. Mr Gresson: You have had no experience m trotting, Mrs. Craw? — No. What made you buy the filly? — My husband spoke to me about having her offered to him by Jarden. As far as you know, the Derby was no more important than the Champion Stakes?— Yes, I did— the Derby was the most important. You didn't know which was the most important as regards . stakes ? — No. Well, why c' you say the Derby is the more important?— Because it was the most talked about. You read the statement of claim drawn up by your solicitors. Why did you not draw the attention to the fact there was no mention thatther c was to be £100 out of the first win? — I can't sny. ■• ■. - ■' His Honor: That doesn't seem to me j to be the point. The question is whether defendant misrepresented the true position when he sold the filly, and there's an end of it. This closed the case for the pi.* In-, tiff. ■ In opening, Mr Gresson said that the plaintiff's case was based upon fraud, but he would prove, he hoped, that there could be no possibility of misrepresentation, because at the time Jarden saw Craw at Palmerston, Jarden knew positively that Marie Tempest was not then remaining- m the Now Zealand Derby, and at that time there was no suggestion of a sale by either party. The only conclusion counsel could see was that whenever Jarden mentioned the .Champion Stakes, Craw was under, the impression that the Derby was meant. Defendant did not object to the cancelling of the contract of sale because he wassatisfied to keep the filly, but his reputation was at stake and this must be defended so long as there was an allegation of fraud. Benjamin Jarden said he had been a trainer for about eight years, and trained, amongst others.. Arthur Dillon. In December last, defendant took a team of six horses to Auckland for the summer meeting there, and included m the team was Marie Tempest, a three-year-old filly by Van Coronado . — Marie Narelle. Defendant had missed the second payment with the filly for the New Zealand Trotting Derby, but though he had LODGED A LATE ENTRY, together with other owners, these had been thrown out by the New Zealand

Trotting Association, so that defendant knew before seeing- Craw that the filly was out of the race. It was quite wrong that the discussion he had with Craw at Palmerston re the missing of the entries, was confined to yearlings. He mentioned to Craw he had missed payment with two three-year-olds. Craw had a look at Marie Tempest but nothing was said about selling her. Defendant then went on to Auckland and on the second day of the Auckland Trots saw Craw, and the latter asked if Marie Tempest was for sale. Defendant s^iid he wanted £500 for her, as he considered her the best three-year-old he had ever had. There was some talk about a trial and on the Monday evening m the Metropolitan Hotel there was no mention of the New Brighton Derby. Defendant mentioned the Champion Stakes and the whole of the discussion centred on th.c Champion Stakes. Craw must have known from the conversation they had at Palmerston that Marie Tempest was not m the Derby at New Brighton. Eventually, A SALE WAS MADE, defendant to be the trainer till after the Champion Stakes. There was no stipulation that he should discuss with Craw which races she was to be entered for. It was understood that defendant was to nominate the filly for what races he thought suitable and instruct Craw what had been done. Defendant had not explained what kind of race the Champion Stakes was, because both Craw and his wife appeared to know. After the sale was effected, the fllly was to run m the interests of Mrs. Craw, but m the box prior to the race at Auckland, defendant, because of the heavy going, advised Craw to scratch her. At that time Marie Tempest would be handicapped on 3mins 50secs m a maiden race, but m the race at Auckland she swung round at the start, .owing to never having started from a barrier before, and lost' about 80 yards. She then went a great race, finishing second, her time being 3mins 42 sees. It was quite untrue that he was looking around m the race, as though anxious as to the whereabouts of another runner. It was true that he had another horse, Leewood, m the race, but he was not prominent, and defendant did not expect him to be. Not once after defendant left Palmerston was the Derby ever mentioned. Defendant always thought the filly a good one, and did so now. Even had Marie Tempest i-emained m the Derby, defendant would have seriously considered whether she would start because Locander Dillon had shown himself to be a colt much above the ordinary. Mr Wright: You say you thought a lot of Marie Tempest? — Yes, and I do now. . • And you were very sore when you went to' Palmerston, about missing the payments for the Brighton Derby?— Yes. So you thought she had a . chance of winning?— Yes, I did. When did you tell Craw that you had decider! to give up owning horses? — At Auckland. Well, when did you arrive at the decision? — In Auckland. Did you ever mention, when you were sore about missing the payment, that you thought Marie Tempest might have won the Derby? — Yes, at Palmerston. At the interview between you, your brother and Cravr at the Hotel, were any particular races mentioned? — The last race at Auckland and the Champion Stakes. Nothing about the Derby? — No. Mrs Craw says there was a statement about her coming- down to see the filly race at New Brighton?— THAT IS INCORRECT. Was there any mention of New Brighton at all?— No. , ' Was there any mention at all of the Dei'by? — No. You agree that the Derby, is an important event? — Yes. ; And the fact that a horse is entered may affect a sale?— Yes. Now, about the race she ran the last day at Auckland. Isn't it a fact that horses are supposed to be scratched at least half an hour before a race?— Yes. Well, if you were m the box with the filly and Craw, how was he to scratch her? — She was: geared up an hour before the event. Now, didn't you have another horse m the race?— Yes; Leewood. And were you^n'ot anxiously looking round to see where Leewood was? — No; he was m front of me. Was he not handicapped- behind you? — Yes, but my filly lost about 80 yards at the start, but. I was .second at- the end of half a mile. Now Craw saw you 'at the Wellington meeting on January 24 and told you Mrs Craw had discovered that Marie Tempest was not m the Derby ?— Yes. ■ ; And what did you say?— l said I had never told her she was. James Neil Clarke, head man for M. Edwards, said he first saw Marie Tern- ,

pest m Auckland. He saw her run half a. mile m lmin ssecs, a performance very few three-year-olds could equal. Witness did not consider the price too much. Witness saw the race m which she ran second and was quite satisfied that Jarden did his best to win with the filly.

William Jarden, who assists the defendant to train the horses at Islington, said he was present at the interview m the Metropolitan Hotel, when Craw said he would like to. buyMrs Craw a good horse as he was desirous of getting her interested m trotting-. Witness's brother said Marie Tempest was for sale at £500, but riot once was there any mention of the filly being m the Derby at New Brighton. Nelson Charles Price, trainer for some 24 years., said he first saw Marie Tempest when he went to Auckland. Jarden also had, Fisherton at the meeting. One morning witness drove Fisherton m a trial with Marie Tempest over a mile and a half. Marie Tempest never let him m . and beat Fisherton, by a couple of chains. To make the trial good, Fisherton subsequently won at Dunedin m somewhere about 3mins 34secs. Witness had timed Marie Tempest to run half a mile m ]mm 5 sees, WHICH WAS PHENOMINAL TIME for a three-year-old. There was not a better bred filly m the land than Marie Tempest and he did not think [ £400 too much for her Mr Wright: Suppose you bought a •horse on the' understanding that the horse was m the New Zealand Derby, and you found subsequently that the horse was not. eligible to run, would it not make a difference to you? — I should be very disappointed. Would it not make a substantial difference to you? — Yes, as a racing man it would. Didn't Jarden tell you that he ha.d overlooked the payments for the New Zealand Derby with Marie Tempest?— Yes. His Honor: This was at Auckland, and he led you to believe that Marie Tempest was not m the New Zealand Derby? — Yes. , This closed the case/ neither counsel addressing his Honor. Mr Justice Herdman said he did not ■ think there was any necessity for him to reserve his decision. The plaintiff alleged fraud, and m a case of this description it had to be supported by evidence and witnesses of the most convincing character and h e was not sufficiently convinced by the evidence of Craw or Mrs Craw. The question was: Did. defendant lead Craw to believe the filly would run m the Derby? Defendant knew before then that it was impossible for the filly to run m the_ race. His Honor was not at all satisfied the evidence would justify him m Riving- a verdict against defendant and he did not think plaintiff had discharged the onus of proof placed upon his shoulder. The evidence of defendant was corroborated by defendant's brother. Judgment would be given for defendant with costs on the middle scale, as for an action for £400