MAGISTERIAL.

Timaru Herald, Volume LXXXIII, Issue 13013, 28 June 1906, Page 6

MAGISTERIAL.

TIMARU— WEDNESDAY, 27th JUNE. (Before Mr C. A. Wray. fc.M.) CITTL CASES. Judgment by default was given in the ' following case*.-—J. Whittafcer (Mr Alpers* ■v. W- C. Kencitb. claim £ls*; 3. Mainland (Mr Alpers) v. W. Harris, claim £3 "14s; same v. T- Raddle, claim £2 2s fid; H. Elder and Sons (Mr Atpers) r. W. 'Batemac, claim £7 17* 10d. A HORSE DEAL. ■Canterbury Fanners' Co-operative Asso- ' ■ elation (Messrs Perry, Perry and Kinoeriney) r. James BzasseU (Sir Rollestonj. claim £&S 4s, for alleged fraudulent sale • of a horse. Mr Houlker said that on February 3rd tast plaintiffs sold to defendant a-"torse -valued at £lB. On March 10th defendant, \wbo had had the use of the horse for five • or six weeks, put it into the hand* of the 'C-F.CLA. to be disponed of by auction. Included in the particulars given, by defendant was a statement .that the hocse was sound and right, but at auction the : horse failed to sell. Shortly after the sale the horse was sold to W. Evans, a* ■being -sound and right. Mr Jones, the auctioneer, was present, and Mr'Brassei in his presence and before Mr Eracs repeated hi* axsxrance of the animal** soundness. Mr Evans took the horse as described, and returned it late on the same day, complaining that a fraudulent, misrepresentation had. taken place. Defendant had been asked by the plaintiffs, to take over the horse ajid return the money, but he woaki not do so. The horse" was sold to Mr Evans as a bay cob gelding, and evidence would be taken to show that .Lis full character had not been given at the •rime of purchase. Mr Kmnerney called G. R. M. Jcnes, who state! that the Jaotse in question had been put up. for ■auction but went -unsold. About ac boor •after the' auction -sale Mr Evans csme into the yards. - "Witness was informed by defendant that.the,• horse was" a gelding, fop any fetal, sa3dVor han«Ss T and aKrigfit' in every way. 33wM pajfieulan. iad been. entered -in.. plaintifl'«r." , sala" book, After the s*le s the horse was offered'to Mr £vdna by witness* inr'ilfce presence of BrasseEX Defendant repeated several times that, the' horse was sound acd right in every way. Mr Evan* decided' to take the horse aid paid for it. He toolT the horse away, bat within an hour iß'wa* returned by Mr Evajas, who sate! that it had not proved to he what it had been sold f«r. Witness subsequently saw defendant and told lim that Mr Evans had returned the horse and that he would have nothing to dcwith it. Defendant -re;used to take the horse back, bat after witne-tt ':=»! torn. municsired with • Mr Ev;.>.n> to th.ft crfec; defendant agreed to "take the h«r>e \xo~ vicTttM? "Mr Kvaas would pay expert**:* for *tab"*b«. etc M*" Evans would not airree to tVs. "After scree wont* defendant said he wonld take tias horse back if'Mr Evnr« would pay the expenses vi the ireep

of the horse. Witness told Brassell that Mr Evans would not keep "the horse on his premises. Witness told Mr Evans of the conversation he had had -with Brassel, and asked Mr. Evans to take it, but he refold. Brassell came in on Monday and said that he was "had" with the horse, and was not prepared to take him back. Witness saw Mr Evans agajn, but nothing further -was done. Witness subsequently communicated with, defendant, and then finally the" plaintiffs had to stable the horse, the cost of which, came to £6 15*1"* -

To Mr RoHttton:" Negotiations with Mr Evans were made shortly after the auction sale, and nothing was mentioned about the sex of the horse or for what purpose Mr Evans Lad bought him. Defendant repeated several times to witness and to Mr Evans that the horse was sound and right. W. Evans stated that after having examined the hor*e, and after'being assured by defendant that the animal was all right, he decided to buy it. Witness took the horse home and tried it. and returned it, a.s it was useless? tor the purposes wbish witness intended.

To Mr RoHeston: "It was not an mv nsaa! thing to put a strange horse among, others. The sex of the horse was not mentioned in the negotiations. W. Davey, carter fcr Evans and Co., said that the horse -was brought into the yard about 5 o'clock «m the 10th inst There were other horns about, and the aitranger, commenced rearing up. Witness remarked to Mr Evan* <3kat he had been ** b£l"- with him, and then Mr Evans took the horse away.

J- Mmndell said ite soH the horse by auction.,on February 3rd to Mr Brassell. On March 10th Mr Evan* returned the horse. Index the circumstances he could not be expected to keep« the horse and witness told him to see Mr Jones. P. Davidson also stated* that he had «en the horse in the" yards at Washdyke arid there had seen it running about a* an entire would.

This was- all the evidence'for plaintiffs. Mr Rnlleston said that the parties directly concerned and implicated were Evans and Brassei and ft was not for the UF.C.A. to assume the plamtifFs action. On these grounds he would" apply for a nonsuit. The plaintiffs were-not entitled to recover the amount clafined, for the' transaction took place witß Evans, the I 'teal plaintiff, but the C.F.C.AL had merelv , assumed as voluntary agents* for -the case. If it was found necessary to" sue", them Evans should have sued.-; no necessity for the C.FC.JL"to-TxiCome the plaintiffs and the fact that they paid over the money- to defendant warranted the correctness of the con&acfe The C.F.C.A. had previously boM the horse exactlv on i the same terms, and .respective of t3ie 'sam& j particulars which appUaT when; Brassell sold the-horse to ErjoiL .'TjEe ac&on>was to aoouj the "was an actum for damages and*" not- recoVerv il n » ne T- The plaintiffs-'shottld have sold the horse agahytand claimed -the" difference. Assuming that the GTF.C.A. were the principals in the transaction, then "the facts would apply, fcutUs**thev . were merely nominal agentsf he would "ask for a nonsuit. It a prima fade case was found a fraud must be* proved. The Seller did not know for what purpose the buyer wanted the horse and there was no question of tha sex of the-horse. Evans cad not epgnire about this and he had the option of. af trial, but bought the horse outright- Defendant had the horse examined after the 3rd of Feßruary and it was found to be, all right. Defendant did not know that the 'horse was defective and had no reason to suspect that it was not right or sound in anj- way. Assuming that defects were proved then there was no express warranty to show that defendant had made anj"" fraudulent misrepresentation. He called*

Jas. BrasseU, horse-dealer, Washdvke, who stated that at the time of sale there was no mention of the sax of the horse. Witness got the money. Saw Jones on Sunday who told witness, that Evans had returned the horse and wanted the purchase money returned. Witness had bought the horse by public auction and took all risks with it- During the time he had it, h was not taken to the vard. by his wish or by himself- - The master had not said anything to witness, about the conduct of the horse while,in. the yards. Witness usually kept the horse in- a yard close to the hotel, for the sake of convenience. Had used him for various kinds ol work and found* no! vice in him at aIL Witness had asked his brother to PTamina the horse and he was found all right. i erosseiammed by Mr Kiwierneyr Witness said that to. his knowledge ton horse i-tfjia all right and for his own satisfaction witness had the horse examined. The [ terse was kept in tEe statin* yard as there was notjnffic^nt;accomarodaiioo at the hotel yards. - ©ale and.witness used the horse at their pleasure, hut witness could not account for'the horse being put in the station yard. .''-'"'- _W. BrasseU stated thil he had examined the horse and found it all Tight. It was riot an unusual thing for, a gelding to prance about the yard%hen other horses were about. He* woaTd call the horse sound. *'e P. Dale stated that he lived at the VVashdyke Hotel with defendant and had *>n two occasions taken the horse to the station for convenience in accommodation.-' ,'.■", '-■-. Mr Rolleston stated that the veterinary surgeon, whom he wished to call as a witness was unwell and he asked for an adjournment.

This was granted and the case stands adjourned till this morning. The Court then rose.