Malcolm v Cross
| Jurisdiction | Scotland |
| Judgment Date | 06 July 1898 |
| Docket Number | No. 175. |
| Date | 06 July 1898 |
| Court | Court of Session |
Lord Justice-Clerk, Lord Young, Lord Trayner, Lord Moncreiff.
SaleHorseWarrantyTimeous Rejection.
In an action for repayment of the price of a horse rejected by the buyer as disconform to an oral warranty of soundness, the defence was, inter alia, that no such warranty had been given. It appeared from a proof that on 10th April the defender offered to sell the horse at the price of 31. There was a conflict of evidence as to whether a warranty of soundness was a part of the offer. The pursuer did not then accept the offer, but said that he would write. In the following May the horse was left with the pursuer on trial. On 2d June the pursuer wrote to the defender offering to buy the horse at 29. In this letter nothing was said about a warranty. The defender took payment of that price. About six weeks later the horse was discovered to be unsound, and it was not disputed that the unsoundness existed at the date of the original offer on 10th April. Intimation of rejection was sent to the defender, but he refused to take the horse back, and it remained with the pursuer until November following, when the pursuer applied for and obtained warrant to sell, and it was sold under the warrant.
Held that the sale on 2d June was not a sale with a warranty of soundness, even assuming that the defender's offer to sell on 10th April was an
offer to sell with such a warranty; and therefore that the defender fell to be assoilzied.
Opinions, per the Lord Justice-Clerk and Lord Young, that the pursuer was in any view barred, in respect that he had not timeously rejected the horse, and also in respect of his neglect to put it into neutral custody, and his delay in applying for a warrant to sell.
In October 1897 George Malcolm, factor, Invergarry, raised an action in the Sheriff Court at Fort-William, against Ewen Cross, shepherd, Glen Turret, Roy Bridge, praying (1) for decree for 29, being the price paid by the pursuer for a horse purchased by him from the defender on 1st June 1897, and (2) for decree for the expense of the keep of the horse from 16th July 1897, when it was discovered to be unsound, until it should be sold under warrant of the Sheriff, less the free proceeds of such sale.
The pursuer averred;(Cond. 1) On or about 10th May 1897 the pursuer met defender at Spean Bridge, where the horse in question was shewn and examined with a view to a purchase. The pursuer intimated that the horse was wanted for Mrs Ellice, of Invergarry, his constituent, as a carriage-horse, and the defender warranted it as suitable for her purpose, and sound in the legs and in all other respects. (Cond. 2) On the strength of, and relying on, the warranty given by the defender at Spean Bridge, and subsequently repeated at Invergarry in presence of William Hislop, groom there, and the pursuer, the pursuer, on 1st June 1897, agreed to purchase the horse for Mrs Ellice, and did purchase it, and paid the sum of 29 as the price thereof out of his own funds, and repayment has not been made to him by Mrs Ellice. (Cond. 3) The horse was not put to work till the middle of July, when Mrs Ellice returned to Invergarry, but although sold and represented as sound, so soon as it was put to regular work it broke down in both hocks and became quite lame. The pursuer, on 16th July 1897, intimated by letter of that date to defender the unsoundness which had become apparent and requested him to take the horse back and repay the price, but this he has refused to do. The defender has since been frequently asked to take back the said horse and to repay the price, but he refuses to do so.The said horse has been kept at pursuer's expense since the said 16th day of July 1897.
The defender admitted that on 1st June 1897 the pursuer purchased the horse which had been left in his custody on 24th April for approval, but denied that he had given the pursuer any warranty of soundness either at the original interview at Spean Bridge (which took place, as the defender averred and as the evidence established, on or about 10th April 1897) or on any subsequent occasion.
The defender ultimately admitted that the horse was unsound when it was sold to the pursuer. The pursuer did not maintain that the defender was then aware of this unsoundness. Neither of the parties had any special skill in horses.
The pursuer pleaded;(1) The said horse being disconform to warranty, the pursuer is entitled to repetition of the price paid by him as craved. (2) The pursuer having had to pay the expense of the keep of the said horse from the 16th day of July 1897 is entitled to payment therefor by defender.
The defender pleaded, inter alia;(1) The defender having given no warranty as to the soundness or otherwise of the horse in question, is entitled to be assoilzied from the conclusions of the summons, with expenses. (2) The sale having been one of sale on approval, the pursuer should be held to have satisfied himself as to the soundness and fitness of the horse before paying the price. (4) Mora. In any event, the horse not having been timeously rejected, the present action is incompetent and unfounded.
The evidence led at the proof was to the following effect:
The pursuer deponed,I met the defender sometime in April last at Spean Bridge Hotel. Defender brought his horse to the hotel to be seen by me. I asked Mr Wilkinson, the tenant of the hotel, to come and look at the horse. Mr Wilkinson accordingly looked at the animal. He said he had suspicion as to one of the hocks being unsound. Defender stated that he guaranteed the horse to be a proper horse, sound in every way, except that it had not been broken to carriage harness. Notwithstanding Mr Wilkinson's opinion, I trusted to Mr Cross's representation, as I had had previous dealings with him of a satisfactory kind. I left Spean Bridge, not...
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