MAMMITIS IN COWS.

Hauraki Plains Gazette, Volume XXXII, Issue 4360, 30 December 1921, Page 3

MAMMITIS IN COWS.

CONDITIONS OF A SALE. ” WAS THERE A WARRANTY ? AN IMPORTANT JUDGMENT.

Reserved judgment was given by Mr Justice Stringer, at Hamilton in the “mammitis in cattle” case, ir< which Frederick Ezra Harris, farmer, of Walton, sued J. and A. A. Were, farmers, of Matamata, for £1360 for alleged misrepresentation in regard to the sale of 33 dairy cows. Plaintiff alleged in his statement of claim that defendants .warranted the cows to be sound and to be in calif to a pedigree Jersey bull, but that 25 of the cows were unsound in that they were suffering from mammitis and that nine of the cows delivered calves not sired by a pedigree* bull.- The warranty was alleged to be verbal and to be given by the auctioneers at the sale and immediately prior tp inviting blds from the persons present. A considerable number of witnesses were called to prove the statements made by the auctioneer on the occasion in question, and in their evidence there was soue discrepancy. Defendant himself, in evidence, said the auctioneer remarked that the sale would be held subject to the usual conditions, that he (Were) would point out all with defective udders, and that the remainder went out sound.

His Honor, however, did not consider the question of! warranty relevant in the present case. The sale was admittedly upon the usual terms and conditions which were in general use in the district and were well known to plaintiff/and to persons in the habit of attending auction sales Of stock. AS the . terms of the contract. expressly excluded any war- u ranty unless reduced tp writing, evidence for the purpose of establishing •a verbal warranty to cripple the contract was inadmissible. If the plaintiff intended to rely on such warranty, it was incumbent on his to obtain such warranty in writing. In face of the fact that although plaintiff discovered the unsoundness of the cows iiV the middle of August following the sale, Ke made no complaint to defendants until January 2, 1921, it was difficult to believe that he purchased in reliance upon a warranty express or implied or, that he failed to realise that he took the risk of the cows being unsound. His Honour thought it was clear that the. statements made by the auctioneer whatever the language used, were mere represents tions and were not Intended to, and did not in fact form, part of the contract. The action for warranty therefore failed. It was contended by Mr Northcroft, as an alternative claim for breach of warranty, that there was in this case a sale by description, namely, dairy cows, that the cows did not answer that description ib that as they were suffering from contagious mammitis in various stages, as dairy cows, and that, therefore, irrespective of warranty, plaintiff was entitled to damages. His Honour thought this contention untenable, as in the first place the animals were not sold as dairy cows, but as “80 Jersey' oows in calf to purebred Jersey • bull..’’ It was true many of them were suffering from contagious mammitis in various stages, but this was a condition that mays yield,to treatment. It could not be properly said of these cows, either, that they were sold under the description of dairy cows, or, ifl so, that they failed to answer that description. Assuming that the auctioneer expressly «or impliedly represented the c.ows in question to be sound, as to which His Honour was by no means certain, he was not satisfied that, defendants either knew or suspected that the cows were unsound- They had bought the cows from a breeder of high reputation, and had only milked them for one season. There was np satisfactory evidence as to when the disease originated. His Honour was quite unable to say that the condition of z the cows during the season in which defendants milked' them was such that defendants ought tp have known or at least suspected, that they were suffering from contagious mammitis. In certain respects A. A. Were’s evidence was open to comment, but His Honour was inclined to think that defendant hardly did himself justice in the witness-box, and that his s'dnicwhat unconvincing evidence on these matters was attributable rather to an to express himself clearly than to prevarication. Giving the fullest weight to Mr Northcroft’s contentions, His Honour considered the evidence generally jwas wanting in that clearness, cogency, and force which alone would justify a finding of fraud. Judgment wouhl therefore be given flor defendant-:, with costs as per scale, witnesses’ expenses, and disbursements.