LEASE OF RACEHORSES.

Taranaki Daily News, 10 December 1919, Page 6

LEASE OF RACEHORSES.

ALLEGED BREACH OF AGREEMENT. ACTION FOR DAMAGES. In the Supreme Court at New Plymouth yesterday, before His Honor the Chief Justice (Sir Robert Stout) and a jury of twelve, an action was brought by Rudolph Edward Laurent (Mr. C. H. Weston) against Edward McGinty (Mr. A. H. Johnstone) for damages amounting to £IOB3 10s for alleged breach of contract and also in respect to the lease of the two racing mares, Staccato and Haversack. The claim was for £233 10a for training and racing a mare; £(SSO for racing; £l5O for depreciation of value of marc; and £SO general damages for broach of contract.

The following jury was empanelled: W. J. Hogue, L. E. Hoffmann, F. J. King, ■A. B. Bullot, T. A. Marrett, P. H. Maca, H. Looney, C. E. Harvey, G. Grant, S. H. Dabb, H. Standring, and W. H. Wood. Mr. Wood was chosen foreman. AH witnesses were ordered to leave the Court. Mr. Weston, in opening the case, applied to have the statement of claim amended as follows:—£sl9 13s 4d for racing the mare; to strike out the words, "the sum of • £50"; and to insert in their place "or in .the alternative the sum of £903 3s 4d as general damages." This wag agreed to. Council said the action was one for damages for breach of contract in connection with the lease of two racing horses. At the beginning of last year plaintiff found himself in possession of three racehorses, the two mares Staccato and Haversack and a colt named Passin' Through. Not being a rich man, lie came to the conclusion that he could not afford to retain the three horses, and that he would have to lease some of .them. Subsequently Mr. Laurent, senr., saw Mr. McGinty (the defendant) at the Orosvenrr Hotel, and after talking matters over with him he agreed to take the two mares on lease. They were handed over to defendant's trainer at the end of 'HIS, and the agreement was actually entered into by the parties-on January 11. The term of the agreement was for two years, and defendant was to pay all the expenses, and the two parties were to divide any stakes won equally bgtween them. An essential part of the agreement was that the plaintiff ran no risk and stood to win half the stakes won. Defendant had an equal share in the profits and also all the credit of the winning. The mare Staccato was a proved marc and had been placed nine times. Haversack had only started once and ran fourth. Mr. McGinty took over the mares with their engagements and contracted to race them. He appeared to he quite , pleased with the arrangement he had entered into. At the Rangitikei meeting defendant had wired to plaintiff sugjesting that he should back Staccato. Subsequently at the Hawera race meeting, on the first day (May 16th) McGinty sent for Laurent and fnfd him that Haversack had gone lame, and lie proposed to send him back. . He maCe no reference to any consideration in re- j speet to the contract. Plaintiff said to de- I fendant: "That means that you intend ! to return the unsound horse and keep the sound one," to which he replied "Yes," and plaintiff said he would have nothing to do with such an arrangement. On the 9ame day Staccato had an accident on the Hawera course, and subset qiiently died. Soon after that McGinty wired Laurent that he was sending the mare Haversack back to Eltham by rail, and asked him to meet the train and take delivery. This was followed by a letter, and the horse was actually sent back. Mr. Laurent took delivery "of the mare to avoid-the railway authorities having to sell it as unclaimed property. At the same time he took legal advice on the matter. In the meantime -McGinty had written to the Racing Conference asking for his lease in the horses to be cancelled. The secretary of the conference Wrote to Laurent asking his consent to the cancellation, which was declined, and the conference was therefore not able to cancel the lease. In regard to the lameness of the mare Haversack, it would be alleged that it had resulted from a kick or from being trodden upon by another horse. Laurent. f?nr„ had found that part of the hoof had been broken and was pressed upon the quick. This he remedied by cuttin-j away the broken part of the'hoof, anil the mare quickly recovered, and had not been lame since, and she was now in training far raciug. Mr. Weston said that iu the meantime until these proceedings were concluded, it would be the duty of plaintiff to reduce the extent of his damages as fur as possible. Any winnings, therefore, would have gone to the credit of defendant in his agreed proportion. Instead of assisting plaintiff to run the horse and it a chance of winning, defendant had done all he could'to prevent plaintiff from racing the horse. Under the rules of racing the only person who could nominate a horse for a race was the lessee. Plaintiff overlooked this, and after receiving Haversack back again he entered her in his own nanje. Defendant, without jrivimj any notice to Laurent, wrote to the Waverley Club and protested asrainet the mare being rim, and in consequence of inquiries made bv the stewards she was withdrawn from engagements, and also from engagements at Avondale. •Mibsequent to that plaintiff made efforts to lease the horse affain. He had three inquiries and replied to all. One of the inquirers replied again, but as he was in Tasmania he thought it was too far away to send her. The damages were assessed on the basis of plaintiff, instead of now getting half the amount of the winnings, he was in the position of-hav-ing to spend about £SOO a vear in training and racing the mare. Evidence was then given by Robert Honnock. caretaker of the Borough Reserves, New Plymouth, as to witnessing the signatures to the asrreement Evidence was also given by plaintiff and his father, largelv on the lines as set out by counsel in his openins address. Cross-examined, by Mr. Johnstone, n'amtiff admitted that he was not of a«e when lie signed the agreement with defendant, and also when he issued the writ in the proceeding. He had Staccato who was a four-year-old when MI to defendant. He was therefore only 1/ when the mare was foaled. He stated that one of the horses was given to 1., m by his brother, and the'other was bred from a dam which he purchased for with' an Z t , and . work «l the horses with an idea of leasing or selling fliem They were „ot his father's horse™ Witness insisted that he made the axemen t with McGintv. In Teplv to J™ m' i H t r, S - by^lr - Johnst °»e, witness 2nutted his father had been disqualified for five years and could not therefore be the owner of the horses, though he could „ow. At the date of the lease Staccato had won £SOO. Haversack had not won anything She had never been lame. s „ far as he knew. She had been trained by a Mr. Nodder. He knew Haversack want to AvondaU, but eh* did

not race on account of going lame. Witness was training Haversack and Passin' Through at the present time, and lie had ft yearling in the paddock. Haversack was four years old, but he would not take £350 or £4OO for her. She was in better condition now than when sent back by McGinty. The depreciation consisted in McGinty sending the horse back on account of being lame and consequently spoiling her recommendations. He could not afford to go in for racing except to win money at it. She had been in the recent Feilding races but had done no good. She had the lightest weight in the Fitzroy Handicap, but was ridden by an inexperienced boy, who did not know how to handle her." She finished close up to the placed horses. She was not a favorite on the totalisator, because the public did not know her. It was not true that Haversack had ever been run into by a motor car. She had got out of the paddock on one occasion, and had got into some trouble with the strappings of her cover, and in this condition was found on the roadside by a man in a motor car, who released her and she came home.

In reply to Mr. Johnstone, Edward Automy Laurent said he had been a racing man since he was 17 years of age. He made all the preliminary arrangements with McGinty for the lease. After the two mares had been sent to McGinty'e trainer, witness complained that the training was not satisfactory, or that a cold that one of the mares had was not being cured. Haversack started at Woodville and Rangitikei, but was not able to start at Avondale on account of lameness. She had since raced at Feilding. It had been possible for the mare to be raced in his son's name by his writing to the Racing Conference and consenting to the cancelling of the lease. Haversack had never won a, race. At present she was in a very good racing •condition. He could not* say that she had depreciated in value. Tlie depreciation consisted in the fact that McGinty handing her back lame damaged his son'e chance of selling her at the time. McGinty told witness That the action he was taking at Waverley was on the personal advice of the president of the Racing Conference. At the time Staccato was injured witness, with assistance, took her away to a stable opposite. Ho did not think there was anv reason for her to have died if she had been treated properly.

Re-examined by Mr. Weston, witness said when Staccato was injured McGinty was very anxious to get her destroyed. He said a veterinary surgeon declared her spine was broken, and there was no chance of her recovering. He said if her spine had been injured she could not have got on her legs again. She was held up by a temporary sling during the night, and owing to some part of the fixings slipping she became susthe small part of the stomach and practically suffocated. Edward Mason, veterinary surgeon, (Sentry Hill, said he had made a cursory examination of the mare Haversack in August last. He also examined her again last Sunday and found nothing wrong with her.

Evidence was also given by -Alexander Alexander, who was a racehorse owner, on the" question of the cost of maintaining and racing horses. This closed the case for plaintiff. NON-SUIT POINTS. Mr. Johnstone asked his Honor to note that he moved for a non-suit on the grounds, firstly, that it was an Implied condition of the agreement that both horses should remain suitable for the purpose for which thev had been leased, and that as thev did not the consideration therefore failed; secondly, ►hat it was also an implied' condition that both should live during the term of lease and as Zw. did not defendant had therefore the right to give up his contract His Honor noted formally that he would consider thc-points. CASE FOR THE DEFENCE. Mr Johnstone then outlined the case for the defence to the jury, and proceeded to call evidence. Edward McGinty, deposed that he made an agreement, which had been arranged by Laurent, senior, for the lease of the horse Staccato. When it was sent up to hj? trainer the marc Haversack was also sent. His trainer had them for seven weeks. It WM then found that. Staccato was lame in the [Mild leg, and Haversack had a cold. Iney were treated by Scally (witness' trainer). Subsequently, ia new arrangement in .regard to training was made with Laurent, and they were trained under his supervision until the WoodvilJe meeting, to which both mares were sent, but neither did any good. Haversack was very sore at the end of the meeting. They were then taken to Bulls, and Laurent wrote to the jockey instructing him,how to train the iim-ses They both ran, but did no good a»ain After that meeting Haversack was V e-v sore. She was treated by the boys who thought it was her shoulder, that was bad They saw nothing of Laurent at that time, and the two horses were sent to Avomlale. Haversack was sent up principally for company for Stacoato as the two horses had never been separated. At Avondale. Haversack went lame and was not able to run, an<t he wired Laurent to that effect. Both horses were brousrht hack to New Plymouth, and he then came to the conclusion that he could do nothing with Haversack. Ho left the mare in New Plymouth, but proceeded to race the mare Staccato at the Hawera meeting in May. Witness saw Laurent, senior, at the Hawera meeting, and the latter asked what was the matter with Haversack, to which witness replied: "You know all right. She's lame, and its the\ Jesuit of the motor car accident" Laurent replied that witness knew what to do if he }»as not and he (witness) thought he did, and he said he would return the mare. Laurent replied that he would take "all or none," and so witness said he 'would send both animals back after the meeting. He later met R. E. Laurent on the grounds and asked him if his father had told him that he was going to send the horses back, and he replied that he had and remarked that he left all these arrangements to his father. At a later hour of the day Staccato went out to race and bolted and collided with the horse ridden by the clerk of the course, and was badly injured. Witness' bov was leading the horse off the ground when Laurent, senior, came and took charge of her, and witness had nothing further to do with it afterwards. He returned the mare Haversack, and immediately wrote to the .Conference indicating that he had returned the horses and asked foe the lease to be cancelled. On the advice of the president of the Racing Conference, he wrote to the secretary of the Waverley Club, for whose J meeting Haversack had been nominated, and advised them that as he had returned the horse to Mr. R. E. Laurent he would not be responsible foi any fees in respect to her engagements. The Judge asked to be shown the rule in the "Rules of Racing" by means of which McGinty could be held responsible for tees on a horse entered and ac-

cepted in Laurent's name. He could not see it, and would think it a very strange rule if it was there. He did did not know the Rules of Racing, and wanted to understand the position. To Mr. Weston: Although he wanted only Staccato he was prepared to keep Haversack as well for the sake of getting Staccato. He consented to Laurent having charge of the horses a little later on, because he thought he knew a good deal about horses. Laurent had charge of them when Haversack appeared sore at the Woodville meeting. He did not tell Laurent that he was writing to the Waverley Club on- the matter.

The Judge asked witness what right he had to interfere with Laurent entering the horse in his own name ajftcr he had agreed to terminate the agreement by returning the horses to him. Witness replied that Laurent had not cancelled the lease with the Racing Conference. Mr. Weston here stated that, he had received a letter, which he read, from the secretary of the Racing Conference, in which it was stated that the president had told Mr. McGinty that the matter referred to was one for litigation and not for the Racing Conference. H. A. Nodder, motor driver, Rotorua, deposed that he had trained horses for Mr. Laurent. His opinion of Haversack was that she was an unsound mare. He believed that Laurent knew that too. He understood from Laurent that she had been knocked down as a two-year-old, and that was the real cause of the Unsoundness. She had a slight splint in one of the fore legs. To Mr. Weston: She waff only up to about half condition when she raced at the New Plymouth December meeting of last year. He admitted having a quarrel with Laurent and leaving him. He said that Staccato had got away jvhile in Auckland, and was recovered in the Mt. Eden pound, while witness vvas ill with influenza. That was flot the cause of his quarrell. It was because lie could not get his money from Laurent. Mr. Weston produced a receipt for £lB odd for money paid to witness on December 28, 1918, up-to-date, and he admitted that he had received the money, and that it was for a little more than a fortnight's work. There I (vere other moneys owing to him at that j time.

Patrick W. Scally, horse trainer, New Plymouth, gave evidence as to receiving the two horses from Laurent for Mr. McGinty. He told him that Staccato was coming, but that there might be 'two horses. He received them, and trained them for about seven weeks. HaversacK was worse and went stiffly. After that some other arrangement was made and Mr. Laurent had charge of the training. Thomas G. H. Montague, jockey, New Plymouth, gave evidence as to being engaged by R. E. Laurent to train the two horses Haversack and Staccato. He took them to the Woodville, Bulls and Avondale meetings. Staccato wag all right, but Haversack was always going lame- They tried to patch her up, but could not get her right, and she was not taken to the Hawera meeting. He did not think Haversack could ever be got ready to go in a decent race.

Eric J. Reed, jockey, New Plymouth, said he was engaged by Mr. Laurent to come to New Plymouth to ride his horses. He found the mare Haversack suffering from soreness. He rode both horses at the Woodville races, where Haversack went sore. He also went to the Bulls meeting, where they had a similar experience with Haversack. He bronjjht her back to New Plymouth Wm. G. Taylor, M.R.C.Vi.S., London, who followed his profession at Strat- f ford, said he had examined the mare Haversack on Tuesday of last week and found her "splinty." 'Witness went into a technical description of the trouble, but concluded by stating that it miffht or might not produce lameness. , The horse .at present was- unsound and not fit to Tace. tfk To the Judge: He couldTiot say when the unsoundness commenced. To Mr. Weston: It was a very common complaint. He did not think he could find a four-year-old horse without a splint. He was not surprised that she had raced at Feilding a few days before he saw her. He did not think the trouble the horse had could have been wised by a collision with a motor car.

Alice Maud Henderson, daughter of defendant, gave evidence in corroboration of her father's account of the conversation between him and Mr. Laurent, senior, at the Hawera races, in regard to returning the horses to Laurent after the Hawera- meeting. This concluded the evidence, and the Court adjourned till 10 o'clock this' morning.