A SIXTY GUINEA COW.

Taranaki Daily News, 3 August 1920, Page 7

A SIXTY GUINEA COW.

CONDITIONS 0* ITS DISPOSAL. QUESTION OF A WARRANTY. is IMPORTANT POINT DECIDED. The purchase at a clearing sale of a Jersey cow allegedly represented to be in calf, and which subsequently proved "dry," was the origin of an action in a caae heard at the New Plymouth Magistrate's Court yesterday, before Mr. T. A. B. Bailey, S.M., when A. W. Yeates, of Inglewood, claimed from H. L. Spence, of Frankley Road, the sum of £ 100 damages. Mr. A. A. Bennett appeared for plaintiff, and Mr. D. Hutchen for the defence. The plaintiff's statement set out that defendant sold to him the' cow Melia 80-Peep, warranted to be in calf; that the said cow was not in calf, wherefor plaintiff claimed as under:—Loss of milk from November, £2O; loss of calf? £35; difference of present value (being not now in calf) and present value if she were in calf, £,45. On the application of Mr. Bennett the statement of claim was amended to provide for an alternative cause of action, namely one of sale by description.

Outlining the particulars of the case Mr. Bennett said a large sale of pedigree Jersey cattle was held by Newton King on "Sehalf of the defendant, on September 28 last. Catalogues were issued and in these the auctioneer's note stated: "These pedigree cattle are recommended to purchasers with every confidence. Mr. Spence has always shown - extreme care when selecting a sire, and the cows he has placed under semi-official test have given great returns." DESCRIPTION OP ANIMAL. When the cow came to be submitted at the sale the description of the lot (No. 7) was read by the auctioneers, and stated: "Melia 80-Peep No. 2915, born October 2'2nd, 1912, bred by Messrs W. J. B. and Wm. Paton, Sentry Hill. Served by Beachland's Little Swan. Expected to calve October." When the date October was read out, defendant said that it was a mistake, and should have been November. Bidding then proceeded as if on an in-calf cow, Yeates being the purchaser at 60 guineas, whereas ns a dry cow it would not have realised anything like the same sum. Counsel was of opinion that this came under the heading of a sale by description. Evidence would also be called that when the cow was submitted one of the auctioneer's assistants said that the' cow was in calf all right. This amounted to a warranty. Mr. Bennett also pointed out that where there was a con-! tract for the sale of goods by description there was an implied condition that the goods should correspond with the descriptions. This was what plaintiff was relying on in the alternative cause of action.

CONDITIONS OF SALE. The defence, he said, was probably relying on the conditions of sale, paragraph 4 of which stated: "Each lot is sold with,all faults, and no errors of description as to age, sex, quality, pedigree, or otherwise shall invalidate the sale nor entitle the purchaser to any rebate or allowance. Nothing at this sale is warranted unless a written warranty in express', terms be given after the sale." Plaintiff contended, however, that he had no knowledge of them, and even if he could be held to have had .constructive notice of them it would not avail defendant in such a case. Defendant, in evidence, said his intention in going to the sale was to purchase a couple of pedigree Jerseys. He did not see the conditions of sale in the catalogue, and as far as he knew no reference was made to the conditions at the sale by the auctioneer. When they came to lot 7, Melia 80-Peep, the auctioneer read out the description of the animal, and witness bid for the lot, thinking he was bnying an in-calf cow. It wasn't until December that he was 1 sure the cow was empty. He communicated with Spenee, and in March the latter visited the farm in company with Shaw. At their request any action was postponed for a month. Witness suggested that Spenee should tajke back the cow and refund the 60 guineas, but he said it was impossible, as there was no place to run the cow. Spenee said he thought ffir compensation would be £ls. Witness gave particulars of how he arrived at his, estimates of the various items in the claim. Stanley W. Shaw, of New Plymouth, jjpneMl manager for Mr. Newton King, ;-said he was standing near Mr. Yeatcs at the gale when he was bidding for Melia Bit-Peep.' He did not remember the conditions being read. As a rule they were not, the auctioneer generally referring to them as the printed conditions. Witness remarked to Yeates that Melia 80-Peep was a cheap cow. If he had known the cow was empty he would not have recommended Yeates to go on bidding as far as he did. QUESTION OP IMPLIED GUARANTEE In the circumstances it would be considered that when a man paid a big price he should have an implied guarantee that the cow was in calf. When they visited the farm the cow looked as if it was in calf, and at their suggestion matters were deferred for a month. The conditions as outlined in this instance were usually met with at pedigree sales, being copied from one catalogue to another'. He estimated the difference in the value of the cow when not in calf at £3O to £35. On March 6 Spenee wrote to witness stating that he was willing to pay compensation, but did not consider he had any legal liability.

Robert Jones, residing at Rugby Road, said he was standing near Mr. Yeates at the sale. From the catalogued" description and the statement made by Spence witness gathered that the animal was an in-calf cow. He also inspected/the cow, and believed she would calve, but not at the date mentioned. The auctioneer, when starting on the sundries, stated that the sale would be subjeet to the conditions in the catalogue. Regarding the claim, he thought the item for the milk was reasonable, and the calf witness estimated at a little lower.

Charles R. Fairbrother said that at the time of Spence's sale he was an auctioneer in the employ of Mr. Newton King, and he conducted the sale. The conditions were not read out, but just before starting on the pedigrees he announced that proceedings would be according to the conditions shown in the catalogue. The latter was usually drawn rrp by the owner, who would give to the public the particulars regarding the stock at the time of sale, to the best of his knowledge. If Melia 80-Peep was ftated to be emptj she would aot hav«

realised 60 guineas, hut probably about 20 guineas. I Other evidence was given by Henry i. Rumball and Geo. Mitchell. The latter said he was a bidder for the cow, believing she was in calf. To Mr. Hutchen: He remembered Spence saying that he would not guarantee the cow. NON-SUIT UPHELD. Mr. Hutchen submitted that plaintiff 'must be non-suited, on the ground that ' there was no evidence of a written warranty having been given. The sale was conducted under printed conditions of sale, the fourth paragraph of which stated that nothing was warranted. In the absence of a written warranty the only remedy open to the purchaser was in respect of false representations, in which an action of deceit on the part of the vendor would have to be established.

Mr. Bennett, in replying, said the principle was certainly one of very great importance in the province. His Worship said this was the second case in which a question of the kind was in dispute. In the previous case it had been stated that it was almost impossible for a man to ' warrant .his cows to be in calf. In this case the animal was not described as being in calf, but as "expected" to calve in a certa : T time. In any case it was some* what of a gamble. The plaintiff was non-suited, with costs, fees, etc., £lO 12s 9d.