S.M. COURT.

Taranaki Daily News, Volume XXXXIII, Issue 74, 16 April 1901, Page 3

S.M. COURT.

Monday, April 15,—Before Mr. R. L. Stanford, S.M. JUDGMENT FOR PLAINTIFFS. R. O. Huehes v. J. Scott; cl»im, £6 Is 8d and .£1 8s costs. Jag. Bellringer r. L. Calltghan; claim, £7 3s 3d and £1 3s 6d costs. Mr. F. T. Bellringer for plaintiff. A QUESTION OP WABRANTY. J. R. Hill v. Joseph Ricketts. This -was a claim arising outi of the purchase of a pony at thy haymarket auction sale. Mr. Westen appeared for the plaintiff and Mr. (Speßce fer the defendant.

It appeared from the evidence that defendant sent ome, McCann, to the haymarket with a hone to eell on his behalf. Tbe horse was shown in a gig, and before plaintiff bid he asked McCann if tlie horse was sound, and was led te believe from the reply that the borse was sound, and he bought it, but on taking it home discovered it was foundered. He tried to stop payment of the sale money to Rickets but was too late.

Expert evidence wan called to show that the horse must have bteo lame fer two er three weeks, and was therefore not sound at the time ef sale.

For the defence, the evidence rf defendant showed that he had only been in per session ef the hone fer a week, having taken it fer a debt; that he had driven it to WaiUia aad back and noticed no defcet; that be got McCain to take the horse to the sale as he (defendant) could not leave his business, and that he never authorised McCann to give any warramty. S. W. Shaw deposed to the general custom, whereby horses were sold •' with all faults."

Tho?. McCann said that just previous to the borsa being put up for sale someone (he did not know whom) standing by tbe gig said " Is the horsa sound V and wituess replied " Yes!" se far as ha knew, but admitted he knew nothing about the fanrae. Mr. Speoce contended that firstly no warranty had been given, and secondly tbat even if MeCi:.n had warranted the ho: su ho bad eo authority to do to, aL'l w-s not even defendant's servant but mewly acting as a special agent, and thirdly tint til* conlr*ct for purchase \va- mad? with the auctioneer, and >-ny vunanty to have legal force must bo give:; by ihe auctioneer or be jnadc the sul'j-cfc of a written document. H<) (juutcd several casss in support of his contentions. Mr. Weston, in reply, contended that there wss a good dtal ef authority in the plaintiff's favour; that the question of soundness was put during tbe sale of the horse, and was not antecedent ; tbat McC»nn acted as if he practically were tho owner of the horso, and that tbe plaintiff relied on McCain's statement that the hors-9 wag sound. He also contended that tha auctioneer was only an sgent, and that a statement by the p incipal overrode the auctioneer, who was the servant of the seller.

Mr. Spenee, in reply, submitted that i* the absence of a warranty given by tka auctioneer, a purcbosi at auction buys without a warranty. His Worship, in giving judgment, said that the defendant had a very gced reasoß for silling. There «as no justification for paying that ha knew there was anything wrong with the horse. He was of opinion that McOann ■was not the agent of Ricketts for tha purpose of giving a warranty, but merely for sellina. Nothing appeared to have bsen said about a warranty, i Everyone kcew taat it was the custom to tend goods to auction to f<.t;h what they would. The auctioneer was tho person who mfide the sale and e<re - > if the owner st« d by «nd rna-l- lemarks as to value, e.c., tin.so remarks would aot be part cf the s»l9. Judgment would be for the defendant, with costs M Bs.