Scottish Court of Session Decisions

Rough, the pursuer of this action sent a horse to be sold by public roup by the defender Moir, who was an auctioneer, and by Rough's instructions it was described in the catalogue as having “been driven regularly in single and double harness.” It was bought by the other defender, Birnie, who, on trying it, at once returned it as being disconform to the description, and received back the price which he had paid. It was re-sold by Moir at a slight reduction, and Rough raised this action to recover the price.

The Lord Ordinary ( Mackenzie) pronounced the following interlocutor:—

“ Edinburgh, December 16, 1874.—The Lord Ordinary having heard counsel, and considered the closed record, proof, and process, assoilzies the defenders

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from the conclusions of the summons, and decerns: Reserves right to the pursuer to receive payment from the defenders, Messrs Peter Moir & Son, of the net proceeds received by the re-sale of the horse, which took place on 26th August 1874 with consent of parties, saving their rights and pleas in this process; finds the defenders entitled to expenses, of which allows an account to be given in, and remits the same, when lodged, to the auditor to tax and to report.

Note.—The defenders, Messrs Peter Moir & Son, sold at their auction mart in Edinburgh, on 8th July 1874, a bay mare, on the order of the pursuer. That mare was described, by the pursuer's instructions, in the catalogue of the sale as having “been driven regularly in double and single harness.” She was sold on that representation, and under the conditions contained in certain printed rules and regulations on which Messrs Moir & Son conduct their sales by auction. By these rules and regulations it is provided that a purchaser who objects to the purchase of any lot ‘must intimate such objection and return the lot on or before the second day after the sale, otherwise the lot shall be deemed to be as it was represented at the sale, and no objections thereafter received.’ It is also provided by these rules that ‘the seller shall be entitled to receive the purchase-money on the third day after the sale, provided no objection has been stated, and that Mr Moir has then received the price.’

The defender, Patrick Birnie, bought the mare at the auction of 8th July, on the faith of the representation contained in the catalogue, and under these rules and regulations, at the price of £36, 15s., which he paid. The mare was on the day after the sale tried by his servants in single and in double harness, and behaved so badly that she was returned to Moir & Son early on the second day after the sale, upon the ground that she was not as represented in the catalogue. On the same day Messrs Moir tried the mare both in double and single harness, and, being satisfied that Patrick Birnie's objection was well founded, they intimated to the pursuer that the mare had been returned, and that on trying her in harness they found that she was ‘rather dangerous to drive, having shown vice.’ The purchase-money was afterwards repaid by Moir & Son to Birnie, by credit being given him in his account with them for other purchases. The mare, after standing at livery pending the dispute, was, of consent, re-sold on 26th August for £33, 12s., under reservation of the rights of parties in the present action.

The question raised for decision is, whether the defenders are liable in payment of the price which the mare fetched at the sale of 8th July 1874.

The Lord Ordinary is of opinion that the statement in the catalogue that the mare ‘had been driven regularly in double and single harness,’ was a warranty. It formed part of the contract of sale. It was an essential element in that contract. And the defender Birnie bought the mare on the faith thereof. ( Scott v. Steele, Dec. 9, 1857, 20 D. 253.) The Lord Ordinary is also of opinion that there is implied in such a warranty that the mare was free from such bad habits as prevented her from being driven regularly in harness. In short, that she ordinarily had been steady in harness.

The question then is, had the mare been driven regularly in double and single harness? After careful consideration of the proof, the Lord Ordinary considers that this question must be answered in the negative.

When tried by David Dickson, groom to the defender Birnie, a man experienced in breaking and training horses, the mare would not drive either in single or double harness, and she behaved so badly that both he and the groom who accompanied him were of opinion that she had not been driven regularly iu harness. They accordingly returned her to Moir & Son on that ground, in the absence of their master Birnie, who had gone to Ireland on the night of the purchase. Messrs Moir & Son tried her both in double and single harness on the day that she was returned, and were so satisfied of the validity of the objection stated for Birnie that they took her back, and accounted to Birnie for the price which he had paid them. On this point the evidence of Mr Moir, Henry Macdonald, William Bryan, and John Riddell is conclusive. Mr Moir, who was in the gig when the mare was tried in single harness by Macdonald, a skilled and experienced breaker, gives a full account of her behaviour, and says that from what he saw he formed a very bad opinion of her. He also says, “I thought she was a very dangerous animal, and not to be trusted into any one's care. I am satisfied, from the trial made, that she had not been driven regularly in single harness. I came to be satisfied of that because she went so very unsteadily. She pulled all to one side, and would neither trot nor canter. She did not go straight forward like a horse that had been regularly driven. She went like an untrained horse that had never been in harness before. In consequence of this I was quite satisfied that she did not come up to the representation in the catalogue.’ The mare was also tried in double harness by Macdonald, and he formed a similar opinion of her, So also did William Bryan, and John Riddell, cashier to Moir & Son, the latter of when depones, ‘I considered she was not what she was represented to be in the catalogue, and that between man and man I was justified in taking her back.’

As regards the evidence for the pursuer, the Lord Ordinary is of opinion that he has failed to prove that the mare had been driven regularly in double and single harness. Although he bought the mare about the middle of March 1874, he had her only for about a fortnight in his possession and in use whom she injured herself. He states that he drove her several times during that period in single harness, and that she went well and quietly. But the hostler who had charge of and regularly drove her during that time is not examined. The pursuer stated that he did not know where the hostler had gone to. But he does not say that he made any exertion to find him. The mare was then sent to Glasgow, as she is stated to have injured herself by what is technically called speedy cut. After being under treatment there in Fraser's stable from 14th April to 2d June, she was sent to the stable of Peter Findlay, veterinary surgeon, Glasgow, where she remained from 3d June to 8th July (that is five weeks), on which day she was sent to Edinburgh for sale by Moir & Son. The alleged speedy cut was cured about a week or ten days after 3d June. Why was the mare left at Findlay's for the remainder of those five weeks? The Lord Ordinary considers that this was done for the purpose of getting the mare broke by Findlay for harness. Findlay depones that he does not break in horses. But his groom, William Boyd, depones that it is part of Findlay's business to break in horses

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and that the horse was out in the breaks, both single and double, every other day. If the mare was only standing at livery in Findlay's stable, it was, as he admits, his duty to exercise the horse. But in his account he charges the pursuer, besides livery, for breaking the mare, the charge for both for the five weeks being £7, 15., or 31s. a-week. While the mare stood in Fraser's stables before going to Findlay's stable, the weekly charge for livery was only 17s. 6d. Findlay depones that he drove the mare while in his charge both in single and double harness, and that after the first two or three days she went steadily. There is other evidence for the pursuer to the same effect. The Lord Ordinary looks upon that evidence with great suspicion. The evidence of Mr Moir, the pursuer's agent in the sale of the horse, and of his breaker, groom, and cashier, as to the behaviour of the horse on the 10th July, is above all suspicion. They corroborate the evidence of Birnie's breaker and groom as to her behaviour in harness on 9th July. In such circumstances the Lord Ordinary cannot believe that the mare could have gone quietly in harness during the three weeks before 8th July, when she was sent from Findlay's to Edinburgh for sale, and then have behaved so very badly in harness as it is clearly proved she did on 9th and 10th July, immediately after the sale. It is proved that the mare was not in season (at which times mares cannot be depended on), and she received a full and careful trial in Edinburgh. The Lord Ordinary considers that the mare was sent to Findlay in order that, when her speedy cut was cured, he might break her in, and make her steady in harness, with a view to her sale. Such breaking in cannot, he thinks, support the warranty of the pursuer that she had been driven regularly in double and single harness. The pursuer depones that he drove the mare twice in double harness when she was at Findlay's stables. But both Findlay and his groom deny this. John Dolan, the horse-dealer who sold the mare, on the same day that the pursuer bought her, to the dealer from whom the pursuer bought her, states that he drove her repeatedly, that she went quietly in both double and single harness while in his keeping, and that there was nothing wrong with her mouth. But it is clearly proved by the persons who tried her in Edinburgh that she had a very bad mouth, one side of it being very tender. If the mare had a good mouth and went quietly in harness when in Dolan's hands, (as to which the Lord Ordinary is not satisfied) she must have been spoiled after the pursuer got her. When the mare was sold a second time on 26th August, she was purchased by James Miller, a cab proprietor in Edinburgh. The pursuer obtained an adjournment of his proof in consequence of the non-attendance at the proof of James Miller and other three witnesses, although duly cited. A warrant for letters of second diligence, to compel the attendance of Miller and these other witnesses was also granted at the same time. Notwithstanding this, the pursuer did not examine Miller, although his evidence as to the behaviour of the mare in harness would have been very important, and the Lord Ordinary called the attention of the pursuer's counsel to that.”

Rough reclaimed.

Pleaded for pursuer—“(1) The defender Patrick Birnie, having purchased at Messrs Moir & Son's sale on or about the 8th day of July 1874 a bay mare, the property of the pursuer, at the price of £36, 15s. sterling, and having paid the said price to Moir & Son, the latter are liable to the pursuer in the same, under deduction of their charges, with interest on the balance; or otherwise, the defender Patrick Birnie is bound to make payment to the pursuer of the said sum of £36, 15s., with interest thereon as concluded for. (2) The present action having been rendered necessary by the defender, Patrick Birnie, having groundlessly repudiated his said purchase, he should be found liable in expenses. (3) In the event of their opposing, the defenders Peter Moir & Son should also be found liable in expenses.”

The defenders pleaded—“(1) The pursuer having falsely and fraudulently represented the mare in question as one ‘driven regularly in double and single harness,’ and the same having been found to be disconform to this representation, the defender Birnie was entitled to return the same. (2) The pursuer is not entitled to payment from either of the defenders of the sum for which the mare was sold to Birnie in respect of said false and fraudulent representations, and they are therefore entitled to absolvitor. (3) The defenders Moir & Son having been willing to pay to the pursuer the sum for which the mare was ultimately sold, less the expenses of sale and cost of livery, and the only difference between the parties being a sum of about £10, the action should have been brought in the Small Debt Court. (4) In the circumstances of the case, the defenders ought to be assoilzied from the conclusions of the present action with expenses.”

Authorities— Percival v. Oldaker 1865, Scott, Comm. Bench Rep., N.S. 18, 398; Behn v. Burness, 24th Feb. 1863, 32 Law Journ., Q.B., 204; Scott v. Steel, 9th Dec. 1857, 20 D. 253 Oliphant on Law of Horses, p. 113; Young v. Giffen, 4th Dec. 1858, 21 D. 87; Hardy v. Austin, 5th May 1870, 8 Macph. 798.

At advising—