BREACH OF WARRANTY?

Te Awamutu Courier, Volume 55, Issue 3977, 12 November 1937, Page 5

BREACH OF WARRANTY?

DESCRIPTION OF A HORSE. CLAIM HEARD IN COURT. One of the most interesting cases at the local Magistrate’s Court at Wednesday’s sitting was a claim by two young farmers in the Otorohanga district, Perrott Bros., against Martin H. Tims, of Frontier Road, Te Awamutu. Mr L. Tompkins said the claim was an action for breach of warranty in the sale of a horse at Ohaupo on April 3rd, 1936. Perrott Bros, went to buy some unbroken horses, but did not buy any of that type. At the sale, however, by private negotiation, they bought two fillies and a gelding, through Mr Noalon, the auctioneer. The prices were £lB, £l6 and £l5. .The animals were turned out on the farm for some months, and when brought in for handling they noticed that the jiorsc they had 'bought as a gelding was a. colt. One filly was in foal to that horse. The auctioneering firm was notified, and asked to make representations to the vendor, Tims. The firm wrote later that Tims had been communicated with, but the latter did not respond. Counsel said the claim notified to Tims was made up of £lO as the difference between the value of the animal and the prices paid; £5 damages for the filly being put in foal, and £5 for loss of work from the horse. An alternative was that Tims should emasculate the colt at his own risk. Tims had refused to do that, but offered to take back the horse and repay the purchase money. Hector Perrott, of Otorohanga, a partner with his brother, gave evidence to the above effect, adding that there was no doubt the animal was a stallion and that the filly’s foal was sired by him. To Mr Preston, witness said he was not an experienced horseman, but had worked horses in connection with his farming. He had attended many auction sales, and knew the .usual conditions of sale which exempted the auctioneers from liability for misrepresentation of animals sold or offered, in respect to age, sex etc. He was not claiming from the auctioneers, but from the vendor, whom he did not know until after the sale. He and his brother had later written to Tims seeking redress, but without avail. They had inspected the three horses in the sale pen and then went to the auctioneers’ clerk to obtain particu iars, a deal resulting. They wanted working horses, and prices at auction were not attractive to them. So these three animals were purchased, after the auction, by Mr Nealon. Witness I lien knew nothing about Tims or his agent. The horses were railed to Otorohanga and taken to the farm, about four miles away. The horses could be seen every day. No claim was made for eight months, after it was found that the animal was a stallion. It had not been broken in, merely grazing at the back of the farm until he and his brother were ready to apply the breaking-in tackle. As a stallion the animal was a poor type. One filly had been put in foal without his knowledge. When purchased the horses, of farm type, were about 18 months old; it was usually when about 21 years old that they were put into work. Plaintiff was closely questioned as to items of the claim, Mr Preston seeking admissions that the amount of the claim for loss was excessive. Mr Tompkins contended that the warranty was in writing, and as Tims had refused to arbitrate the only recourse was to go to court. Tbit breach of warranty was based on a sale by description, which would be admitted.

His Worship said he would , like to know the difference in value between the animal as a gelding and the same animal as a colt. Mr Preston said his client was in Australia at the time of the sale. His agent, Findlater, a drover and experienced horseman, handled hundreds of horses. He did not know the animal was a colt, or did he know that there was trouble until eight or nine months after the sale. William J. Nealon, an employee of the N.Z. Loan and Mercantile Agency Co, said he was booking clerk at the Ohaupo sale on April 3rd, 1936. He did not remember seeing the colt, but office records showed a bid of £l4, refused. It was recorded as a gelding. About £l5 would be fair value at that time for that type of animal as a gelding; as a colt or stallion the price would be lower, at auction. A useful farm type, if kept entire, would be a nuisance about a farm. That type was useless for breeding purposes. Probably, at auction, very few would bid for a colt of that type and age. Farmers preferred them emasculated before the sale. He knew nothing of the animal and its sale, and went on to describe the practice of entering details in the firm's sales book, hence the need for reading the conditions of sale. James R. Kay, farmer, of Korakonui, said he was experienced with horses. He would say that an animal of the type would be worth only half as much, to many farmers, as a colt 18 months old, as a gelding. Some farmers would decline to buy a colt, even though emasculation was a relatively simple operation. He had performed the operation on hundreds of horses, and had never lost one, That was not unique. He would be willing to pay the same price himself, but would promptly operate. Other farmers would not look at it in the way lie did. His Worship suggested that the parties could reach agreement. Mr Tompkins said defendant had refused any suggestion of mutual negotiation. Mr Preston said Tims had offered to take tlie animal back and refund the purchase money. Surely that was fair?

His Worship said he would not, on the evidence so far heard, have admitted much of the claim for damages. It would seem that the operation on the animal was a simple one, involving very little risk. After a little discussion, Mr Tompkins offered to withdraw the claim if Tims would have the animal castrated, and compensate Perrotts somewhat for the trouble and expense they had been put to. Mr Preston said Tims had offered, early in the negotiations, to take the horse back. Mr Tompkins said that offer was not made until September 9th. His ’Worship said it seemed to him that the £lO claimed as the difference in value of the animal was excessive. The £5 claimed in respect of damage to two fillies and a mare would, in part, be disallowed. The £5 for loss of work was entirely disallowed, for

the horse should not have been retained entire for more than a few days at most. He had all the facts, and would hear legal argument. Mr Preston said he was relying on the condition of sale, and the sale note, or, as an alternative defence, under the Sale of Goods Act. sections 15 and 16. The Perrotts had inspected the animals before purchasing, and therefore voided any warranty. They had not rejected the purchase, even after this long interval. The evidence supported his case for the defence. Mr Tompkins said his client could not reject the animals. The sale and purchase had been completed. His Worship remarked tliat while the evidence might appear clear and simple, the law relating to the sale of goods was very definite in its requirements. Both counsel addressed the Court on points of law. The witness Nealon was recalled to give evidence as to practice and procedure at auction sales as between the vendor, the auctioneers and the buyer. His Worship decided to reserve decision.