SUPREME COURT.

Taranaki Herald, Volume LXVII, Issue 16613, 10 December 1919, Page 4

SUPREME COURT.

RUNNING OF RACEHORSES. OWNER. AND LESSEE. RESULTS OF AN AGREEMENT. In tho Supremo Court on Tuesday Sir Robert Stout and a jury were c-uhcd upon m a civil action to unravel a i-iing:c which arose through the leasing of two racing marcs—c races io ana Haversack—uud an attempt made by tile lessee to end the agreement bet ore. the full period had elapsed. Rudolph Edward Jwiiureut claimed from Howard M'Giuty Lbijii Js 4d, being 10s for training a racing maro, £519 IBs -id for racing tho mare, and xldO depreciation of value of tho mare; or, in the alternating £9oo general damages. Mr. C. 11. Weston appeared for plaintiff, and Mr. A. H. Johnstone for defendant. Tho following jury was empanelled; IV. J. Hogue, i.. E. Hoff maun, F. J. King, A. B. Bullet, T. A. Marett, P. U. Mace. H. Looney, C. E. Harvey, G. Grant, S. H. Dabb, H. Standring, AV. ii. Wood. Air. Wood was chosen foreman. HISTORY OF THE HORSES. Air. Weston said that plaintiff was the son of a larmer residing near AVaitara and defendant was the licensee o: tiie Grosvonor Hotel, New Plymouth. At the end of last year plaint.n was m possession of two marc's—Staccato and Haversack —-and a colt, Passm’ Through which lie had bred. Ho could not afford to run them himscll and so accepted an offer from defendant to take the two marcs on lease. On January 11 of I this year an agreement was entered into by which defendant was to train | and nice the marcs for a period of two i years from that date. He was to pay j all expenses of training, upkeep and racing, while phiinl.lt (tuc owner) was to receive half of tile winnings. It was an essential part of tho contract that pLiinL iit was to run no risk eif loss whatever. Tuo horse; would race in defendant's name and ho would got tho credit for any-wins. Staccato was a proved maro, having been placed Mm times in the 1918 season, while Haversack had only raced on the first day of the Christmas meeting of tile Taranaki Jockey Club, and then came fourth. At first M'Ginty was apparently cpiite .satisfied with both mares. The first intimation Laurent received to the contrary was on the morning ol the lirst day at 1.1 a worn, when M'Ginty said that Haversack had gone lame and no proposed to .send her hack. Laurent would not agree to take hack the unsound maro and leave the sound ono witn Al'Giuty. That afternoon Staccato, the good maro, met with an accident wliHo racing. Sho eventually died, nut directly from tho accident, but from slipping in a sling in her stall and being suffocated. Tlio next step in the game was that defendant wired to plaintiff at Eltliam, where lie then was, that ho 7 as sending Haversack back, and this was done, though plaintiff protested. Defendant wrote to tho Racing Confer- [ euco at Christchurch asking far tho 1 leaso to bo cancelled, but the conference refused to take any action as plaintiff was not agreeable. Defendant had said that he thought a shoulder was the cause, of the lameness of Haversack, but Laurent found' that the crust of ono hoof was pressing upon tho quick near the coronet. Part of tho hoof was removed and the maro became well almost immediately. Sho was now in training and being raced by plaintiff’, who took this course in order to try to win something to go against the loss caused by defendant repudiating the Defendant | did not assist him in this'course, but! even did his best to prevent plajiiliff | racing the mare and winning. Under | the laws of racing M'G.inty alone could j nominate the rnaro while the leaso was | in existence. Plaintiff overlooked this i but wrote to tho secretary of the club | and nominated in his own name for tho i AA’avcrloy meeting. Defendant did not | communicate with plaintiff about this. ! but wrote to the secretary of the club | and the first plaintiff knew it was | when tho horses were in tho bird-cage ! before tho rn-v. Haversack therefore | had to he withdrawn for that meeting i and also tho Avondale meeting. Since j then plaintiff had made furl her efforts to re-lease tho mare and hist Saturday had received an offer from Queensland. Regarding damages, counsel said that I instead of being in the comfortable posi- | tion of talcing half winnings, plaintiff I was in tho position of having to expend approximately £SOO per year in racing the more.

Robert Rennnob, caretaker of bor--011 trh reserves, Now Plymouth, deposed that- lip witnessed the .signing of the agreement. HAVERSACK’S UNWELCOME RETURN. Plaintiff in the witness box, said that the form of the agreement was decided upon by defendant, who had used the same form before and considered it a good one. Haversack had not met with any accident of consequence prior to the agreement. in August, 1918, she and the other two horses got on to fire road through a gale being loft open and she was found lying on tho road through her nig slipping and getting into such a position that it held her down. She was not injured through this and did not have to cease work. When the raaro was forwarded by train sho was removed from the truck by the railway authorities, ami witness advised defendant that ho was accepting delivery to prevent her from being sold, but that this did not in any way release him from the agreement. It would not have been wise to try to sell the maro when defendant scut her back as unsound. Witness therefore set out to train and race her. 110 gave details of the expenses fo which ho was put. Cross-examined, plaintiff said his twenty-first birthday was in September of tho present year. Staccato was four years of ago when leased, and therefore ho was a boy of 17 when ho bred her. One mare had been given to him by his brother. His father had been disqualified on one occasion for five years, but that was not tho only reason why the horses wore held in witness’ name. His father conducted tho negotiations for the lease on witness’ behalf. Previous to that any winnings were paid into his father’s banking account and were used by- witness for carrying on the racing. At the date of the lease Staccato had won £SOO. Witness himself was now training Haversack and Passin’ Through, so it could not be said he was actually paying £3 a week for training Haversack. VALUE OF THE MARE. Mr. Johnstone: What is Haversack worth now? She is more than four years old and has never won a race? Witness: I would not take loss than £350 or £4OO for her.

Do you tlifiTk sho is -worth that or that you can. get it?—-Yes. 1 could make her worth it.

Replying to a further question witness said lie was claiming £l5O depreciation of value because defendant was sending Haversack back ns unfit for racing. Practically everyone in New Plymouth interested in racing would know that. Haversack, witness said, was now in good condition and had been so for tho last fortnight within which the Fcilding races were run. She ran in the Pitaroy Handicap with tho lightest weight and was not placed, but was not last. The boy was not capable of doing her justice. Edward Anthony Laurent, farmer, Brixlon (near AA’aitara), deposed that ' his son (plaintiff) owned the racehorses with the idea of making money. AVitj ness considered, after seeing M'Ginty, that tho agreement proposed would give his son a good opportunity of making, something. AA’lien defendant I made the first suggestion that Haverj sack should he returned because lame, j witness said he would not advise his j sou to take the lame maro bark witli- ! out getting the sound one. Staccato, as well. This was just before tlio race in which Staccato was injured, and defendant did not make any definite reply. Cross-examined, witness said that when tho negotiations for the agreement opened defendant wanted | filaeento. AA'ben the mares had been sent to tho trainer witness complained of the treatment of Haversack, who had a cold. OUTSIDE OPINIONS. Alexander Alexander, Now Plymouth, deposed that he had at present five horses in training. The oust to him was about £2 15s per lior.se per week. The fost for a single horse would be greater. With regard to the, claim of plaintiff that Haversack should have been run at sixteen specified Hirelings during the season, ho could not say whether thus was reasonable, as it depended upon tlio j borso. Some horses ran more often than | that in a year and others less frequently. I Edward' Alason, veterinary surgeon, ! Sentry Hill, gave evidence to tho effect I Hurt he had examined Haversack cursoiily in August last, and found no blemish but a slight mark on ono hoof. Last Sunday he iiad made a thorough examination, and found nothing wrong. 11l cross-examination, witness said lie had not examined the maro specially for splint. The ease for plaintiff then closed. GROUNDS OF DEFENCE. Air. Johnstone intimated to his Honour that he would move fur a non-suit on two grounds, viz. (I) that it was an j implied condition of the agreement that both horses should remit ill suitable for the purpose for which leased during the term ol the base and that, as they did ( not, the consideration laded ; (‘J) that there was an implied condition that belli horses should exist during the term of the lease ami, as ono of them Intel not done so, defendant had tho right to cancel tho contract. His Honour said that the latter provision would no doubt apply in tlio case of a pair of carriage horses. Mr. Johnstone replied that in this case ono of ibe horses was very "much heller than the other, and this better one—-Staccato —had died. Addressing tho jury, Mr. Johnstone said that defendant had for a number of years been interested in the turf, and towards the end of last year he decided ho would' like to have a. horso to run for himself. Ho heard of Staccato as a young horso which bad won several race-s and was likely to improve, and he and Laurent, sen., came into communication. Counsel proceeded to trace the proceedings which followed. ONE GOOD AIAUE, ONE BAD. Defendant, in tho witness-box, stated that lie wrote io Laurent,- son., regarding .Staccato, and the 'alter a 1 Inwards called on him about tho same matter, but..said he had not received the loiter. It was agreed that witness should race Staccato on a fifty per cent, royalty basis. A few days later Laurent called and said he had seat Staccato and also Haversack to Scally, the trainer, for witness. Laurent, jun., first came into the mailer after this, when tho threo of them met and an agreement was signed. Scally had the horses for seven weeks, and found that Staccato was lame in one hind leg and Haversack had a heavy cold. Laurent, son., complained of tiie treatment of tho tiainer, and they were taken away from him and placed in witness’ .stable, a. lad appointed by Laurent being with them. This arrangement continued until the AA'oodville races. After running a race thoro Haversack was very sore. Plaintiff wrote giving instructions to the jockeys as to how Hie horses were to he treated. They ran at Bulls, and Haversack was still sore. Roth horses wore entored- for engagements at Avondale ami, though witness was doubtful whether Haversack would be. fit, she was taken to tho mooting ns company for Staccato and because there was no one to leave in charge of her in Now Plymouth. On reaching Avondale Haversack was found unfit to run, and plaintiff was notified. This time the lameness did not go off'. Staccato was taken to llawera. Them witness met Laurent, sen,, who asked what was tho matter wilb Haversack. He replied that Laurent well knew it was the icsulfc of “that motor-car accident.” Laurent replied that, witness knew what lo do if ho was not satisfied, hut said lie would not take hack Haversack without Staccato. AA’itness said; “That’s set then. I’ll send the, two of them hack after this meeting.” AA’itness saw Laurent, jun., after this, and told him what bad occurred. Laurent replied that ho loft everything to his father. STACCATO’S ACCIDENT. Later in the afternoon Staccato bolted in her preliminary and dashed into the clerk of the course, suffering serious injury, which witness thought was internal'. Laurent took charge of the injured maro, and witness had nothing j further to do with her. Ho then re-; turned Haversack. To comply with the ' rules of racincc lie wrote to the Racing ! Conference advising that he had' return- j off tho mare, but they replied that Lau- ■ rent refused to cancel tho lease. AA’hcn tho maro was entered for tlio AVnvorlcy meeting by Laurent after this witness wrote to tlio clubj by advice of tho president of the conlerenco, to notify that lie had returned tho maro to Laurent and would not he responsible for any fees. At the meeting ho was called before tiie stewards in connection with tho matter. Cross-examined, witness said that I when Laurent, son., objected to the | treatment of the trainer he said that ns i ho was selling hia farm ho would have ; time to supervise tho training. He: would not hoar of the horses being put i under another trainer, and witness gave , way on tho point. Laurent was in j charge of tho horses when Haversack j shewed soreness at AVoodvillo. Mr. Weston produced a letter from the secretary to tho New Zealand Racing Conference to tho effect that ho was instrnclcd by tho president to say that tho only advice ho gave to Air. Al’Giuty was that, tho matter was one for litigation and not for the Racing Conference. THE TRAINERS’ OPINIONS. Harrison Ashworth Nodder, motor-car

driver, Rotorua, deposed that for a number of years lie had; been a. licensed horse trainer. From September 26 to December 28 of last year ho was in charge of Staccato, Haversack and Rassih’ Through for Laurent. Staccato was in the hack class and Haversack was still a maiden. Ho had always had doubts, of Haversack, because after hard work she showed signs of soreness. Laurent, jun,, was aware of this. Witness eventually found that the lameness was caused by a shoulder, and Laurent when spoken'to about it said she had once been knocked down by a motor-car. After running at the 1918 Christmas meeting at New Plymouth Haversack was very lame. As the result of his examinations witness detected a slight splint in the tendon of one fore leg. In cross-examination, witness said Haversack was a mare that would never stand preparation for racing if she lived to be twenty.

Asked if he had any feeling against Laurent, Nodder said he had not in this case, hat there had been trouble between them.

Counsel: “Was it the result of a little incident at Auckland ? Staccato was missing for four days and was afterwards found in the Mount Eden pound?” The witness replied that the mare was not missing for four days, but was found in the pound. He was in hod with influenza at the time.

“And that was the cause of the severance?” —“The cause of the severance was because I could not get my money.” Counsel for plaintiff jiroduecd- a receipt date December 28 in which witness acknowledged receipt of training fees to dale.

Nodder admitted that ho was paid, hut only after a lot of trouble. He made an explanation, in the rourse of which he said that in order to get paid he had to get a solicitor to stop Laurent from taking to Auckland ono of the horses which he had “stolen” from a loose-box at the Red House during witness’ absence. Patrick William Really, horse trainer. New Plymouth, deposed that when brougl’t to him Haversack was sore and had a had cough. After treating her he came to the conclusion that sho was spread. On account of her condition she was sent back to Laurent temuorarilv. “VET.” CONDEMNS HAVERSACK. William Oco Taylor, veterinary .surgeon, Stratford, deposed that on examining Haversack last Wednesday ho iouud she was what was called “staled.” tic could find nothing hi the shoulder or foot, io cause trouble. Ho found several splints in one loro leg. The- maro was unsound, as far as racing was concerned . He could give no idea as to when the splints had formed.

Cross-examined, witness said that splint was commonly found in four-year-olds. It could hardly bo said that the maro could race in spite of her infirmity, hut. -she. could try to race. He would hardly credit that tho condition of the mare was the result of a motor accident.

Thomas G. H. Alontaguc, jockey, at present employed by Mr. George at New Plymouth, deposed that in February ho was engaged by Laurent, sen., to look after Haversack and Staccato in a stable in A’iviau Street. Ho boarded at APGinty't hotel, and was paid by M'Ginty, hut took instructions from Laurent. From his experience lie thought Haversack was not a maro that would stand- preparation for a decent race.

Eric J. Reed, jockey, who was with Montague in charge of the horses, and Alice Aland Henderson, daughter of defendant. who heard the conversation between defendant and plaintiff at Haweri. also gave evidence.

This concluded tho evidence and, the lime being 5 o’clock, tho court adjourned until ID o’clock this morning.