MAGISTERIAL.

Timaru Herald, Volume LXXXIII, Issue 13014, 29 June 1906, Page 6

MAGISTERIAL.

TTMARIT—THURSDAY. JUNE 28th, 1906. (Before Mr. C. A. Wray, S.M.) A HORSE DEAL. The case Canterbury Farmers Co-flpera-tin Association v. J. Brassell, claim £25 4m oa the sale of a horse, commenced on Wednesday, was concluded yesterday, morning, when T- G. Lilico, the Government remained to be examined. Mr . Mico said that be had examined 43m h-orse in question, and had come to ihe ooaeluaiott that it wa« a gelding. There m nothing in the appearance of the jfcana to, lead anyone to suppose that it not' -a gelding. The horse had, according to evidence, acted strangely, but Hal, iact was not conclusive that the 4onw.waa. not a gelding. He did not rtrnt that.* because ol such conduct in a tumm that it ccrald be called vice. To Hit Worship: The term "right" m one used by auctioneers and- dealers, w. Kart, no technical meaning when aphorses. To'M? Kinnerney t Could not swear that horse i was> not a. gelding. The befwnnirr nfthri horse as in the manner descrihed was a certain indication of vice, feat •ror not conclusive evidence that the Jtccse would be unfit to use in harness.

Tins' concluded the evidence. Mr Rotlearton then continuing from the gpreiidcs d*T , s hearing, said that the plaintiffs were not entitled to recover, as they claimed,, to do under the head " moneys bad and received," as the horse had not been returned to the seller. There was no condition of sale under which the seller was to take the iborse back if the buyer -w not satisfied with it, and, in the

a&seDce of such condition he was not

bocmdtotake it back again. There lad been xto contract as between the CLF.C.A. and the defendant, and plaintiff bad no cause of action against deJVtUwfc Coming to the facts of the ■cue, Mr Rollestoa said that apparently -there -was no legal definition of the term "right," asoppEed to a (horse sale, fn£ the wqrds used in this case were "aoond and light," and they most be *3*—» together in that sense. It was admitted that the horse teas " sound," \ .aad it -was for the Court to determine •what "right" 1 * implied- It was a term

-sritich slipped off the tongue easily in ■Ascribing an animal, and used in conj*nctioct with '"sound"—as it must be lere—it was merely an attribute of ooundnooL It did not go any further than! the term sound; the words practically: the same thing. In all ithe case# which had been decided in connection with rale of horses the term " right" bad never received any strict interpretation. li, when Mr Evans had bought this horse, be lad 'asked, "Is it a gelding; kit right and sound!" then the words used 4by Mr Bras sell would give a warranty «C the kind which plaintiff sought to establish. But the sex of the horse hod sever been mentioned by the parties, and the word "right" used with its context iwapTy qualified or emphasised the degree soundness. It implied nothing further than that. If the Court held that 3fc meant free from vice, then he would wrihwrifc that -the behaviour of the n-nwrml jra# not a vice. Mr BoHeston here quoted 3Ut_ authority in support of the last-named paint. Vice must be some confirmed bod kahit, but the evidence in this case only daKiosed two occasions on which the horse

"bad behaved in on excitable manner, and

■am of these was when it had been left in * by itself while other horses ■fino nnsrung around close to it. An A against: this they had the fact that the bene had been kept in a yard with a |rtet fence on one aide and a thorn fence «a the other, while horses were runniiuj in the adjoining paddock. If it were a Ticious horse, surely it would have iwan poesibie for the 'plaintiff to have irougbfc evidence.to prove it, and if they coatid prove that it was not a gelding, amrdy, they should have brought expert ■eridence in this direction also. Bat thev

lad not done so, and aQ that the horse lad been shown to do would not justify file Court in coming to the conclusion tint it was possessed of vice. BrasseFs -alleged statement to Jones about his having 'been "had," and he did not see why Srans should not be "had" also, could

In dismissed ',*• trivial. Bcasaell said he iad a» xeeoßaetloD of eayingxoch a thing, Md m bad, it might bare been merelyia Jeet. Then, the fact that firaaseH take the horse hut, fewt -when .hie had only ntfflreJ £ls : 8i for it {the commission fcetng "and Lis - subsequent offer «f £l6, -when i&ere was a ' week's keep to pay an it, wss» proof of his boo& -fides. Again, he had given no warranty to Evans as to the sex of the horse, and ■on all points judgment should go for the .defendant. But, .supposing it did not, Mr BoTleston said that the £6 15s for keep of the horse should rot b? ruarged «gam*t defendant, as the case had been left in abeyance for two months without the slightest necessity. His Worship remarked that he did not «ee why the case was not brought on sooner. ■ Mr Kinnerney said that they had had considerable difficulty in obtaining evidence. Mr Kinnerney then replied to the _ defence. As regards the plaintiffs laving no cause of action, he said that Mr BoHeston was mistaken in that as J*e had treated the csss aa between vendor

and purchaser, whereas it should be treated as between principal and agent. The Canterbury Farmers* Co-operative Association were agents for Brassell; and by warranty he induced the plaintiffs to pay money to him on account of this horse, and having done this, he could not now say that he would throw upon" his agents the responsibility of getting the money from Evans. If the case went against defendant as he submitted it should do, it would then be open for Brassell to sue Evan?, if he conld show that the latter was'wrong in rejecting the horse, and the original might also in turn be sued, but there was no' responsibility resting npon the Association because they had disclosed the name of the vendor at the time of sale. He contended that defendant had acted fraudulently, anShere quoted cases to show where a. contract was tainted by fraud, the' injured party had the right to disclaim the contract and 'revert to his original standing. • ■ Mr Rolleston had said that the right course for the Association, would have been to resell the horse and then claim for any difference in price. That would have been correct if the auction had been between Evans and Brassell. The defendant had been warned that there was something wrong with the horse and later on had it examined "for the purpose already, mentioned and the warning * was well founded." (The fact that it-had to be kept in & yard at the Washdyko by itself indicated that they could not trust it. ,A strong point in the evidence was that of David- ' son who, after seeing the conduct of the horse in the yard, had advised defendant to settle the matter out of Court* That showed clearly Davidson's opinion in the matter. The fact that defendant had offered to take the horse back for £l7 and later on for £l6, bore no, weight, against the evidence. The reason - was that defendant knew he was wrong and thought by taking, the horse back it" would save difficulty. Further Braksell had said to Jones that be had been "had" and" that he did not see. why Evans should not be "had" also. . This clearly showed defenfontV admission *of fraud. The Association had acted honestly and sold the horse. in a bona fide way to Brassell. They had disclosed the name of their principal and therefore cpuld have no responsibility. Mr Kinnerney concluded by quoting from the "law of auctioneers" in support- of this point. .He. would, ask-that judgment be for . plaintiffs,. - „ i His Worship said, he.'yroidd.give, judgment next Court day,