A CATTLE CASE.

Stratford Evening Post, Volume XXIX, Issue 120, 13 July 1911, Page 3

A CATTLE CASE.

ALLEGED BREACH OF WARRANTY. The following judgment has boon delivered by Mr W. €!. Kenrick in the case, H. Wells v. lb R. and C. .\l. Fanihain, recently heard at the Inglewood Court:— ‘■‘This is a claim f0r.£144 10s damages lor breach of warranty. The facts are that defendant, Phillip R. Farnham, sold to plaintiff 81 cows, 28 of which plaintiff claims were .warranted to ho in calf. 'The evidence proves 17 turned out not to he in calf. Defendant denies that a warranty was given when the cows were sold. hR;e evidence proves defendant, Phillip 11. Farnham (who is now proved to be the owner alone of the cows), wrote on the ,27th April, 1910, to Air Newton King, auctioneer, saving lie had seen his advertisement for a dairy herd and stating that he had a dairy held of 33 second calvors, in call to a.pedigree Jersey hull ‘Labia Boy,” and that nearly all the cows have a touch of Jersey, and that lie is asking LG a head all round. It is proved that Air King saw plaintiff gam Kr n i hose pari h-.ilars from !F; let tei . mu’ tit h:m to deft admit: ;, ml jo.untie looked at tine tows wiji;•!i 'CSV scattered ai-put the j.lace and Knight ill of tiieiti at f.j os. ])<> iciidant says that at tins interview the phdn.tih said the cows seem very late, and lie replied “ a good many were late going to the bull, what can you expect for the price?” Defendant further says after consulting \\ itii his brother, who then joined them, he accepted £5 clear of commission, and sold 31 cows. That the plaintilf theil drove the cows onto the road and; asked defendant to tell him how iipiny? wore eimfpty*,. defendant savs lie, replied, I | can’t , say either way, but" besides the one that has just calved 1 there nbc three I never saw go l to the bull. Defendant says dip .cannot remember all plaintiff said at this interview.’ Plaintiff, denies having.asked how many cows were empty. The defendant relics on that question asked by plaintiff namely,, -as to ho.w many cows were empty as .strong evidence that no warranty was, given as he says the words were used immediately after the sale. 1 think'this would he strong evidence if at were supported by other evidence, or circumstances surrounding tiie case. Rut the evidence is all against the defendant. Firstly, he ho was not able to give all the replies plaintiff made to him during the conversation; secondly, plaintiff denies the use of the words; and lastly, there is defendant’s letter to Newton King that the cows were all in calf, and plaintiff wont to see defendant after being informed of the contents of the letter. The defendant was aware plaintiff was buying for the milking season for dairying purposes. Plaintiff says he relied on the particulars of that letter tnat the cows were all in calf except three, which defendant said lie had not seen go to the bull; and that he relied on Ids own judgment as to the class of cows ho was buying. The . evidence proves that at that early date—19th May, 1910—plaintiff could not iiavo known the cows were not in calf by tne inspection made by him. iu iiij opinion me laces before me iiuaouoteuiy proye a warranty Having been given. 1 nave now to deal wim tne question of damages. Than-

tin chums .ti-rt iUs in consequence of 1/ out of '.iS cows being empty; cite oasis upon winch he arrives at his loss is that tic lost tne prohts oi uie milking season on 1/ cows, which would average him £7 a cow, and the loss of me calves, allowing that eight out of tiie 1/ calves, he would have had, would be heifers, and 10s per cow for loss of milk for pigs, 'xhere may be circumstances unuer Which the danlages may bo so arrived jat, but certainly not until an attempt has been made, to sell tiie empty cows and purchase ones in full milk. 1 do nut think plaintiff is entitled to keep all the empty coms and claim tiie loss or proJit tor tne season on them, in my opinion he should have sold the empty cows and purchased -.others in ..aiu’;' claiming sub damages as he .-■ush.-ii-cd by'jih difft ran-'- in p'.ic;; am! i,i,t lost in c.;r,; :• m- ’ im idcO.a.i i-xpi uses .iiicnn'i M in miying and. sei.llag. ; y -ifj.,.. iihi■; I■- b.v--i- i.hayc arrived at the damages. the piaintill Ims suffered. 1 active at the sum of £ol as a reasonable amount to allow. 1 give judgment as again st Phillip 11. Farnham only for that amount, as it is proved his brother Charles C. Farnham was not joint owner oi the cows sold, although ho appears to be joint owner in the farm on which they were running. 1 allow costs against the defendant ,P. H. Farnham on the scale of the amount recovered hy plaintiff. Costs to bo .fixed by the Clerk of the Court, subject to reference to me in case oi parties not agreeing- to the- amount.” The, Clerk has fixed the costs as follows :r— Court costs, £3 10s fid; witnesses, £3 Its 3d; solicitor’s fee, £3 14s—making"a total judgment of £O4 Ids 3d. At the- hearing, Mr Spence appeared for plaintiff, and Air W. D. Anderson for defendants. , , :