Damages Claim Follows Sale Of Mare

Chronicle (Levin), 17 April 1948, Page 2

Damages Claim Follows Sale Of Mare

Iii the Magistrate's Court, Otaki, before Mr. A. M. Goulding, S.M., M. J. Bradiey, farmer, of Levin, represented by Mr. J. Ongley, sued E. Gouiden, the prop'rietor of Tudor Lodge Stud. Otaki/ represented by Mr. C. F. Atmore, and M. Soutney, of Eketahuna (Mr. Parsons), for the return of £120 purchase money paid for the brood mare Marshland at the Trentham saies in March 1947, plus £50 expenses or, aiternatively, £170 damages. Plain tiff alleged that Southey had two mares, Lady' Ina and Marshland, at the Tudor Lodge Stud in December 1946, and that through the negligence or carelessness.of Gouiden, or his empioyee, a pregnancy test had beeen taken of oiood from Lady Ina in mistake for Marshland, and which showed a positive reaction, and mai tfouthee, or his agent, fraudulently represented at the saies that Marshland was in foal, and that he had a certificate of pregnancy. The maie was not in foal and was of no vaiue. L. W. Fitch, veterinary surgeon, said that he made a blood test on December 18, 1946, of a mare represented to be Marshland for pregnancy, and the test was positive. He was empioyed by Gouiden from time to time to test mares at the stud for this purpose. Later, at the Trentham saies on March 14, 1947, Southey had asked him to examine Marshland for pregnancy. To save Southey the expense of an exammation, he had relied on the previous test and had issued a certificate of pregnancy on December 18, 1946, which the auctioneer "had used, and which was now produced; In cross-examination by Mr. Atmore, he admitted that he had made the test in December for Gouiden, who paid him for his services, and that the information was not avanable for any one eise. Syaney McCormack said that hc was the stud groom at the lodge irom sepuember 1946 to March 1947. There v/ere over 40 mares at the stud, and that iie had mistaken Lady Ina for Marshland when tne lesi/S wei'e taken. It was an easy thing to do. Mr. Atmore, for Gouiden, asked the court to non suit th'e piam tiit. 'Ihe ciaim was based on coiuract, but Gouiaen was not a party to ihe sme. It was Goulden's practice to have each mare served at his stud examined i'or pregnancy. The terms of servicc provrcted for a re.turn service if the mare was not m ioal, and the pregnancy tests were necessary to proteet Gouiden against claims for the return oi' service in cases such as abortion, as weli as for checks on sires. The veterinary surgeon was not cntitled to use Uiis information ior otner purposes. Gouiden did not sell to nis patrons certiricates of pregnancy. He contracted to give a rctuin service if the mare was not in foal. Assuming that the groom had made a mistake, the only eliect of that mistake would be on the question whether Marsnland was entitled to a return service if not in ioai. The Court reserved the nonsuit application and asked to hear Ihe evidence in defence. The deienaant, uoidcn gave evidence as above and produced the stud book dales and tne veterinary surgeon's reports on tests taken of mares at the stud. J. Hill-Motion, veterinary surgeon of Palmerston North, gave details of the pregnancy tests and their rcliability. i James Southey said he usually ! had six brood mares on his land. He entered Marshland for the Trentham' saies and on the previous day instructe'd Mr. Fitch to examine her for pregnancy. His certificate was handed to the auctioneer, who read it out. The auctioneer explained that positive tests were no guaranlee that a mare was in foal. The mare had given no indication that she was not in foal up to the date. of sale. Cross-examined by Mr. Ongley, he said that if guaranteed to be in foal shc would be worth £500. She was known to be a shy breeder. In giving his 'decision the magisf.rate said that Fi.tch was empioyed by Gouiden for the December test and Gouiden had no interest in the March sale, Fitch could not give a certificate which would bind Gouiden, and as there was 110 prov- i ity of contract the application for a non-suit made by Mr. Atmore woul'd be ailowed. As to the claim against Southey, that was based on fraudulent misrepresentation and could only succeed if the plaintiff could establi'sh it. The evidence would require to show that Southey knew that the mare was not in foal, and he had used the certificate of pregnancy to deceive the plaintiff, but this was not supporte'd by the evidence. Judgment would' therefore be for the defendants with costs of £16 19s 6d to Southey and £14 14s to Gouiden.