Hopkins v Tanqueray
| Jurisdiction | England & Wales |
| Judgment Date | 27 May 1854 |
| Date | 27 May 1854 |
| Court | Court of Common Pleas |
English Reports Citation: 139 E.R. 369
IN THE COURT OF COMMON PLEAS AND IN THE EXCHEQUER CHAMBER
S. C. 2 C. L. R. 842; 23 L. J. C. P. 162; 18 Jur. 608; 2 W. R. 475. Approved, Stucley v. Baily, 1862, 1 H. & C. 416.
[130] hopkins v. tanqtjeray. May 27, 1854. [S. C. 2 C. L. B. 842 ; 23 L. J. 0. P. 162; 18 Jur. 608; 2 W. E. 475. Approved, Stucley v. Batty, 1862, 1 H. & C. 416.] A. sent his horse to Tattersall's for sale by public auction, where he was to be sold without a warranty. On the day prior to the intended sale, meeting B. at the stable, and seeing him in the act of examining the horse's legs, A. said,-"You have nothing to look for: I assure you he is perfectly sound in every respect;" whereupon, B. replied, " If you say so, I am perfectly satisfied," and, upon the faith of the representation so made to him by A,-which was admitted to have been made in perfect good faith,-became the purchaser:-Held, that there was no evidence of warranty to go to a jury,-the representation made by A. on the day preceding the auction forming no part of the contract of sale.-Quaere, per Maule, J., as to the legality of such a secret bargain for a warranty, where third persons attending the sale are bidding upon the supposition that the sale is without warranty. This was an action for an alleged breach of warranty on the sale of a horse. The declaration stated that the defendant, by falsely and fraudulently representing and warranting a horse to be then sound, sold the said horse to the plaintiff, yet that the said horse was not then sound, as the defendant then knew, and that, by reason of the premises, the plaintiff was put to expence, &c., &c. Pleas,-first, not guilty,-secondly, that the horse, at the time of the making of the promise in the declaration mentioned, was sound. Issue thereon. The cause was tried before Talfourd, J., at the sittings at Westminster after last Hilary Term. The facts which appeared in evidence were as follows :-In May, 1853, the defendant sent his horse California, for which he had in 1851 given 250 guineas, with a warranty of soundness, to Tattersall's for sale, and accordingly it was advertised, with several others, to be sold without reserve on Monday, the 30th. On the morning of Sunday, the 29th, the defendant, upon going into the stables at Tattersall's, saw the plaintiff (with whom he was acquainted) kneeling down in the stall examining California's legs, whereupon he said to him,-" You need not examine his legs ; you have nothing to look for: I assure you he is perfectly sound in every respect;" to which the plaintiff replied, " If you say so, I am perfectly 370 HOPKINS V. TANQTTEBAY 15C. B.13I. satisfied," and immediately got up. On the following day the plaintiff attended the auction, and purchased California for 280 guineas,-having, as he said, " made up his mind on the 29th of May, to buy him, relying on the defend-[131]-ant's positive assurance that he was sound." Mr. Tattersall, who was called as a witness, proved that the well known course of business at his establishment was, that horses sold there were not warranted unless so stated in the catalogue; and that California was not warranted. The horse was subsequently put into the hands of a trainer, when he was found to be unsound ; and, after some correspondence between the parties, the plaintiff sold him for 144 guineas, and now sought by this action to recover the difference between that sum and the sum at which he had purchased the horse. On the part of the defendant, it was insisted that the conversation between the plaintiff and the defendant on the day preceding the sale, was a mere representation as to the opinion and belief of the defendant, and did not amount to a warranty,- that it was a mere representation, which, if unfounded, gave no ground of action, in the absence of fraud,-that it was no part of the contract,-that a sale by auction differed in this respect from a private sale,-and that the representation could not be incorporated into the contract, it having been made on Sunday. The learned judge declined to nonsuit the plaintiff, although he expressed a doubt whether there was any evidence of warranty at all. And, in answer to questions put to them by the learned judge, the jury found, first, that a warranty was embodied in the contract of sale,-secondly (though as to this the evidence was conflicting), that California was unsound at the time of the sale. A verdict was accordingly found for the plaintiff, damages 1421. 16s.,-leave being reserved to the defendant to move to enter a nonsuit, if the court should be of opinion that there was no evidence of warranty to go to the jury. Lush, in Easter Term last, obtained a rule nisi accordingly. [132] Byles, Serjt., Hawkins, and Finlason, now shewed cause. There was abundant evidence of a warranty to go to the jury. The scienter is not a material part of the declaration, and need not be proved,-Williamson v. Allison, 2 East, 446 : and there is no imputation of fraud. But it is submitted that the statement made by the defendant when he met the plaintiff at the stable on the day preceding the day of sale, was intended by him as a warranty of soundness, and was so understood and acted upon by the plaintiff. [Maule, J. If that had been...
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