RACEHORSE UNSOUND

Evening Post, Volume CXXIII, Issue 137, 11 June 1937, Page 11

RACEHORSE UNSOUND

COURT AWARDS £250

UNNAMED GELDING

Holding that the sale of air-unnamed Captain Bunsby—Lubrication gelding had been effected by the plaintiff relying on the defendant's judgment, Mr. Justice Smith, in a reserved judgment released today, awarded Walter Smart, a pawnbroker, of Wellington, £250 damages against Arthur Edward Preston, jun., butcher, of Wellington, his Honour, having found that the horse was unsound at the time of the deal and not fitted for racing.

The case was heard on May 27 and 28. Mr. C. H. Weston, K.C., with him Mr. J. H. Dunn, appeared for the plaintiff; and Mr. H. F. O'Leary, K.C., with him Mr. P. H. Putnam, for the defendant.

The plaintiff bought the gelding on January 20 last for £200 and a horse named Maritime—previously bought from the defendant—which he valued at £50. When the horse was tried out after the purchase it was suffering from lameness caused by . a dropped near hip. The plaintiff sued the defendant on four causes of action. In the first he alleged fraud and asked that the contract be rescinded; in the second he alleged a breach of an express warranty of soundness and claimed £250 damages; in the third he alleged an implied warranty and claimed a similar amount; £250 damages were also claimed in the fourth cause of action. The plaintiff relied in part on an allegation that the defendant had represented the gelding capable of holding his own with a horse named Mittie. "I find that the defendant did then compare the gelding with Mittie, and said that the gelding had held his own with Mittie," said his Honour. "He also said that the horse was in traming and would win races. I am not clear that the defendant used the' word 'sound,' but I think it clear that the plaintiff assumed from what he heard that the horse was sound, and the defendant admits that if the plaintiff had heard that the gelding had done a good trial with Mittie (and I find that he did get that information both from the defendant and from his agents) the plaintiff would naturally think the horse was sound." AN OLD INJURY. The fact was' that the gelding had a dropped hip which was most visible when the horse was moving swiftly,, continued his Honour. He was quite satisfied on the evidence that the injury was an old one and that it was manifest for those who had eyes to see it during the period before the sale. He accepted, without hesitation, the evidence of the plaintiff's witnesses on that point. On his first cause of action the plaintiff alleged fraud and asked that the contract be rescinded. But for the plaintiff's statement in the witness-box that he did not charge the defendant with fraud, the evidence pointed to the conclusion that tne defendant knowingly sold an unsound horse to the plaintiff, and that would amount to fraud.' The plaintiff's statement contradicted, of course, the allegations in his pleadings as Prepared by his advisers, but the Court had to remember that the plaintiff knew the defendant personally. "Though nearly eighty years of age, the plaintiff is engaged in his daily business and apj pears to be competent in those affairs, said his Honour. "His statement in the witness-box in cross-examination that he did not charge the defendant with fraud involved the withdrawal of thefraudulent intent alleged by his advisers. I think I must adopt the view that the plaintiff himself thinks that the defendant's actions and statements are open to an innocent interpretation even though that view seriously discredits the defendant's powers of observation and memory, and I think that the Court should not impute to the defendant conduct which amounts in law to fraud when the plaintiff himself does not' Referring to the second cause of action, his Honour considered that the various oral representations made by the defendant, either personally or by his agents, did not constitute an express warranty. INSPECTION OF HORSE. "The defendant, having brought the plaintiff to a stage where he would have bought the horse relying on "the defendant's skill or judgment, induced the plaintiff to look at the horse under conditions which would not have revealed the unsoundness to the plaintiff," said his Honour in dealing with the third cause of action. "Belying on the defendant, the plaintiff had no reason for suggesting that the horse be cantered of galloped. Taking the inspection as it was offered to him, the plaintiff was not favourably impressed by the horse. Yet he bought it. To my mind, the conclusion is irresistible, and I find it as a fact, that the plaintiff relied not on his own skill or judgment, but on the skill or judgment of the defendant."

Having found for the plaintiff on the third cause of action, his Honour did not consider the fourth cause.