SALE OF CATTLE.

Western Star, 31 January 1922, Page 4

SALE OF CATTLE.

WHAT CONSTITUTES A GUARANTEE.

MAGISTRATE GIVES RESERVED

JUDGMENT

.At the Invereargill Magistrate's Court on Thursday Mr Q, Cruickshank, S.M,, gave his reserved) judgment in a case in which an action was. brought to recover damages for 1 the breach of an alleged warranty ou the isalc of a herd of dairy cows in June;. The hearing of the case took place ion December 8, when Alexander Gray (Mr Hall-Jones) proceeded' against James A. Thomson (Mr Ha gg.it t), claiming to recover £142 iOs because six of the cow© sold by cfeiendan't to plaintiff failed to come in call, plaintiff contending that the herd Had been, guaranteed in writing to be isouiid and /n particular verbally guaranteed to be September and October calvers. The claim, was macile up of the price paid for the six cows at £l6 each, , grazing and general damages. " His Worship said' that the sale' note contained the stipulation that the dairy cows sold were guaranteed sound. The sale note was a complete contract, not a mere memorandum, and evidence of any collateral verbal agreement was admissible .on any matter on which the contract waii silent, which was consistent with .the contract and which did not add to, vary or contradict its terms.

"Now, ,it seems to me,'' said his Woi'uhip, "that if the corns are guaranteed it is adding to and carrying the seller's liability to introduce a collateral agreement that he guaranteed the cows to hn . in eaJf. The express guarantee of soundinoEt* excludes any other guarantee." ■

"The evidence tendered about the verbal collateral agreement is not ndinissable and must be rejected."

'ln case he was wrong in ko rejecting that evidence, continued t'hei magistrate, he would give his finding on it. ATtor reviewing the evidence, his "Worship said he did not think it could be helci to be proved that the defendant made any affirmation which he intended to be treated as a warranty of the cows being SeptemberOctober calvers. He accepted as true the plaintiff's statement that lie" ci'Sked! the dqfendanfr if the cows were in call and received an affirmative answer, but on a review of the whole circumstances he thought the defendant only intended to guarantee them' sound. The defendant had not been milking the cows hiimeelf and both the plaintiff and the defendant; knew that the cows, -had been running with the bull since- December. The fact that when the agreement of sale was being prepared and! the question of guarantee was mentioned, defendant sa.id he would guarantee the. cows sound 6'howcd that he never intended to do any more.

The mere statement of a fact such as that the cows were in calf was not a warranty if it was not intended to be cue. The intention of the parties could only be deduced) from the totality of the whole evidence j(Hcrlbriit Symons and Co. v Buekleton 1913 A.C. (30). Dealing with the argument of counsel for the plaintiff that even jf no express warranty was proved jat there was an implied warranty of being, fn calf, becauise they were sold as dairy cows by defendant who knew the plaintiff was wanting a herd to milk during the coming season, his Worship after defining sale terms, said he coufd' not see that the .mere fact of this created an implied warrant that the cow was a factory calver.

>He held that h was not proved! that any expres warranty was given, tliat it it were evidence, of it was nofc admissible, that a dairy cow was not necessarily a factory calver, and judgment would be given for defendiant.

Security for a possible appeal by the plaintiff was fixed at the request, of Mr HallrJcnos, who said, however, that ho did not think his client would take tTiat course.