LAW REPORT.

Evening Star, Issue 3271, 14 August 1873, Page 2

LAW REPORT.

SUPREME COURT.- IN BANCO,

Wednesday, August 13. (Before Ris Hopor Mr Justice Chapman.)

Hutchinson, Appellant, v. Oxenbould and Another, Respondents.—Warranty of specific chattel— Breach—Remedy—Conditional agreement for trial.

The respondents agreed with the appellant to exchange a marc and foal belonging to them for a horse, the property of the appellant, on condition that the horse was sound and suited them. The appellant declared that the horse was sound, The respondents, at the expiration of two months, offered to return the horse as unsound, having worked it in the meantime. Having brought their action seeking to have the contract rescinded, and claiming a return of the mare and foal and damages for their detention : Held, they were not entitled to the relief they sought; that their only remedy was by an action for damages for breach of the warranty; that the agreement to exchange was not conditional, the respondents- themselves not having treated it as such, they having brought their action, on the breach of warranty; and that even if the agreement had been conditional, the respondents should have exercised their right to try and return immediately, and should not have slept upon their rights. Appeal from the Resident Magistrate’s Court at Lawrence.—The respondents, the plaintiffs below, sued the appellant for L2O, the price of a dray sold by them to the appellant, and further alleged that “ the defendant bargained with the plaintiffs .for the exchange, and received delivery of a mare and foal, the property of the plaintiffs, for a horse, the property of the defendant, which the said defendant then fraudulently represented to the plaintiffs as sound and in good working order, whereas, in fact, the said horse was unsound and not in good working order, whereby the plaintiffs were fraudulently misled ; and oh the discovery of the said fraud they elected to rescind the said contract of exchange, and tendered back the said horse to the defendant,” and that the said defendant had refused to return the said iuare and foal to the plaintiffs, “whereby the said plaintiffs have been put to great expense,” apd the plaintiffs Claimed’a return of the said niaf’f? and foal or L 25, being their value, and L 5 for their daiqages Jn and consequent upon the said detention! The defendant Paid RH into Court, and pleaded never indebted as to the pest of the clamp The case was heard before Mr Vincent Pyke op the Pith March, Witnesses were called by the plaintiffs to prove that the horse was unsound. As to the agreement, the evidence of one of the plaintiffs showed that they had agreed to exchange the mare and fpal for the defendant’s horse, on the defendant declaring that the horse was sound, and on condition that the horse was sound and spited the plaintiffs; that the plaintiffs kept the horse two months and used it; that they thou offered to return the horse and rescind the agreement. No evidence of fraud was tendered, and no evidence was given for the defendant. The magistrate decided for the plaintiffs; damages L 23, in addition to the amount paid into Court, to be reduced to L 3 on return of the mare and foal in exchange for the herse. From this decision the defendant appealed,

During the argument, his Honor intimated he was of opinion that the defendant’s statement amounted to a warranty : and commented on the one-sided nature of the Magistrate’s decision, the plaintiff being entitled to retain the L 25 given by the judgment, together with the horse, if the defendant did not, from whatever cause, return the mare and foal. In case, said his Honor, the defendant had parted with the mare and foal, great injustice would be done, for he would not then have it in his power to return them. The judgment ought to have been that the horse should be delivered up, cither on the payment of the L 25 given by the judgment, or on the delivery up of the mare and foal. The questions for the opinion of the Court were:— 1. Whether the statement of the defendant that the horse was sound amounted to a warranty, or merely a commendation. 2. Whether the plaintiffs were entitled to rescind the contract after such a lapse of time, and having worked and used the horse for many weeks, the defect being patent at the time of sale.

It is only necessary to give so much of the arguments as is relevant to the judgment. Mr B. C. Haggitt, for the appellant, argued that, if the statement of the defendant below amounted to a warranty, the plaintiffs were not entitled, on the breach of the warranty, to rescind the contract and sue for a return of the specific chattel; their only remedy was by action for damages for breach of warranty (Gompertz v. Denton, 1 DowL, 623, I.C. and M., 207 ; Street v. Blay, 2 B. and Ad., 456 ; and cases collected, Bullen and Leake, 3rd Ed., 264) ; that the property, moreover, had passed to the defendant by the sale, and that the warranty was only a collateral undertaking ; and that the return should have made within a reasonable time, but that the time taken by the plaintiffs was unreasonable. Mr E. Cook, for the respondents, contended that, inasmuch as the agreement on the part of the plaintiffs was to exchange on condition the horse was sound and suited them, the contract was executory, and subject to the condition; that the plaintiffs were entitled to a right to try the horse, and that, as no time had been fixed within which the right was to he exercised, they had a reasonable time to do so ; and that, under all the circumstances, the time taken was not unreasonable ; that the question what was a reasonable time was for the magistrate, sitting as a jury (Pattershall v. Trauter, 4 Neo. Man. (351; Holiday v. Moreland, 28 L. J., Q. 8., 9 ; Eltham v. Brogden, 4 Camp., 81). Mr Haggitt replied. Per Chapman J. : There was nothing in the evidence of the plaintiffs to warrant the construction that the agreement was a conditional one. The parties did not treat it as such. The plaintiffs treated the case as a breach of warranty, and claimed to be entitled to rescind the contract on the breach of the warranty. The decision too of the magistrate was on the hypothesis of the warranty. Even if there had been an express stipulation for trial, the trial and return should have taken place immediately ; the plaintiffs in that case would not be allowed to sleep upon their rights. The only remedy the plaintiffs had was for damages for breach of conti’act. Answer to first question : that the statement of the appellant did amount to a warranty, and was not a mere commendation. Answer to second question: that not only were the respondents not entitled to rescind, after the lapse of so long a time, but they were not entitled to rescind at all. —Appeal allowed, with costs.