THE HIGH COURT
			1997 42 CA
BETWEEN
DAVID COTTER
			PLAINTIFF
AND
CATHERINE BREWSTER
			DEFENDANT

JUDGMENT of Mr Justice Diarmuid B O'Donovan delivered on the 18th day of December 1997
  
	These proceedings arise out of an agreement entered into between the Plaintiff and the Defendant on the 15th July, 1992 at the R.D.S. Showgrounds, Ballsbridge in the city of Dublin  whereby the Plaintiff agreed to sell to the Defendant and the Defendant agreed to purchase for a sum of £9,000 sterling a 3 year old bay gelding horse named Echo Boy.  That the parties entered into the said agreement for sale is beyond any doubt; each having admitted as much in evidence given before me.  However, while the Plaintiff seeks to enforce the said agreement in the sense that he claims from the Defendant a sum of £7,000 sterling being the balance of monies allegedly due and owing to him by the Defendant arising from the said sale, the Defendant, for her part, maintains that the Plaintiff was in breach of several of the terms of the said agreement for sale, whereby the consideration for the payment of the contractual price for the said horse has wholly failed and that the Defendant is thereby entitled to rescission of the said agreement for sale and to damages for breach of contract.  
	Insofar as the Plaintiff's claim is concerned, it is accepted by the Defendant that, if the said agreement for sale is enforceable, there is, indeed, a balance of £7,000 sterling due and owing by the Defendant to the Plaintiff in respect of the purchase of the said horse.  In this regard, while, when the sale was concluded, the Defendant paid to the Plaintiff a sum of £2,000 sterling in cash and gave to him two cheques; one drawn in his favour on the Bank of Scotland in the sum of £5,000 sterling and the other drawn in his favour on the TSB Bank in the sum of £2,000 sterling, she subsequently countermanded payment of those cheques whereby the Plaintiff received no value therefore.  Accordingly, on the face of the transaction, there remains due and owing to the Plaintiff the sum of £7,000 sterling.  However,  in her defence, the Defendant claims that the said agreement for sale was subject to four terms arising from specific representations in that behalf made by the Plaintiff to the Defendant before the sale was concluded.  These terms were; (1) that the said horse had never been lame in its life, (2) that the said horse had been certified as being fit by the Plaintiff's veterinary surgeon and that a certificate from the said veterinary surgeon would be furnished by the Plaintiff, (3) that the said horse would be ideal as an event horse for the Defendant's daughter and (4) that the said horse had no vices.  The Defendant claimed that each of those terms had been breached by the Plaintiff, in that; (1) the said horse was lame when sold by the Plaintiff to the Defendant on the 15th July 1992, (2) the Plaintiff failed to provide a veterinary certificate for the said horse, (3) the said horse was not ideal as an event horse by reason of its lameness and (4) the said horse did have vices, in that, it was and is a box walker.
	At the outset, I must determine whether or not the said agreement for sale was subject to all or any one of the said terms asserted by the Defendant.  In this connection, I have no doubt at all but that the Plaintiff did, indeed, represent to the Defendant that the said horse was not lame and had never manifested lameness to him.  He conceded under cross examination that, in reply to a specific query in that behalf from the Defendant, he had told her that the horse had never exhibited any lameness to him.  Accordingly, I am satisfied that it was a term of the agreement for sale that the horse had never manifested lameness.  Now, while, in the course of his evidence, the Plaintiff vehemently denied that it was a term of the said agreement for sale that he would furnish the Defendant with a certificate of fitness in respect of the said horse from his own veterinary surgeon, he did concede that he had told the Defendant that, some few days prior to the said sale, he had had the horse examined by  his own veterinary surgeon, a Mr Liam Hutch, who had then passed it as being fit in all respects.  Mr  Cotter said that he had arranged for that examination in order to satisfy himself that the horse was fit to participate at the forthcoming Dublin Horse Show because it would be a waste of time and money for him to take the horse to that show if it were not fit.  However, he rejected an assertion by the Plaintiff that he told her that it would be waste of time for her to have the horse subjected to a veterinary examination by a veterinary surgeon of her own choice, although he said that he told her that she had that option, if she so wished and, in particular, he rejected the Plaintiff's assertion that he went out of his way to persuade her not to have the horse examined by a veterinary surgeon of her own choice.  He also denied an allegation by the Plaintiff that she had told him that she required a certificate of fitness in respect of the said horse from a veterinary surgeon for insurance purposes and that he had agreed to furnish her with a certificate in respect of the examination carried out by Mr Hutch a few days earlier, in spite of the fact that the Defendant's evidence in that behalf was fully corroborated by a friend of hers, a Mrs Elizabeth Parker, who gave evidence that she had been present during some of the negotiations and had heard Mrs Brewster telling the Plaintiff that she required a certificate from a veterinary surgeon for insurance purposes and his response that he would post it on to her during the following week.  In fact, the Plaintiff said that it was not until a few days after the sale, when the Defendant telephoned him to advise him that the horse was lame, that she first mentioned the question of insurance and first requested that he obtain a certificate from Mr Hutch so that she might furnish it to her insurance company.  In that connection Mr Cotter said that he did not, in fact, contact Mr Hutch with regard to furnishing a certificate to the Defendant but rather gave the Defendant Mr Hutch's telephone number and suggested that she contact him directly.  Mr Cotter added that, if, as she said she had, the Defendant had received a certificate from Mr Hutch, it must have been posted to her directly by Mr Hutch although the Defendant said that she had received Mr Hutch's certificate without a covering letter in an envelope addressed to her in handwriting which she recognised as that of the Plaintiff.  In the light of the evidence given before me, I have no doubt but that, during the course of the negotiations between the Plaintiff and the Defendant for the sale of the horse in question, there was discussion with regard to a certificate of fitness from a veterinary surgeon.  I am also satisfied that the Defendant did pose the question as to whether or not Echo Boy had ever manifested lameness, that the Plaintiff denied any such manifestation and, in support of that denial, pointed out that the horse had been examined and passed fit a few days earlier by his own veterinary surgeon, Mr Hutch, and that, on the previous day, had also been examined and had been passed fit to participate in the Dublin Horse Show by a veterinary surgeon employed by the Royal Dublin Society; a Mr Henry Wall.  Moreover, I think it likely that,  in the circumstance of those two examinations, the Plaintiff could well have said that he did not consider that any further examination by a veterinary surgeon was called for.  However, I can think of no good reason why the Plaintiff would have tried to persuade the Defendant not to have the horse examined by a veterinary surgeon in her own interests.  Despite the fact that there was evidence which I accept that, some days after the sale, the horse was diagnosed as suffering from degenerative joint disease in its feet, I am satisfied that the Plaintiff was totally unaware of that fact and had no reason whatsoever to suspect that there was anything physically wrong when he sold it to the Defendant.  Accordingly, so far as he was concerned, he had nothing to fear from an examination by a veterinary surgeon of the Plaintiff's choice and, therefore, I cannot see any reason why he would have tried to dissuade the Plaintiff from arranging such an examination and, in fact, I do not believe that he did.  Accordingly, I do not think that that agreement for sale was subject to a term that the Plaintiff furnished the certificate of fitness from his veterinary surgeon so as to satisfy the Defendant that the animal was suitable for purchase by her.  In my view, the Defendant was satisfied by the Plaintiff's assertions that the horse had been examined and passed fit by two veterinary surgeons in the previous few days, by the history of the horse's success at various shows throughout the country during the previous two months and, more particularly, by its performance at the Dublin Horse Show on the day of sale and by the tests through which she herself put the horse immediately before she agreed to purchase it that it was fit and well and that she made a deliberate decision not to have it further examined by a veterinary surgeon in her own interests although she appreciated that it would be usual for a purchaser to arrange for such an examination.  Accordingly, I do not think that it was in the minds of either the Plaintiff or the Defendant that there was anything physically wrong with the horse at the material time and that, therefore, it was not a term of the agreement for sale that it was subject to the production of a certificate from the Plaintiff's veterinary surgeon for the purpose of satisfying the Defendant that the horse was fit and sound.  I might add that I am influenced in this conclusion by the fact that, in the originating letter of complaint from the Defendant's Solicitor to the Plaintiff dated the 27th July, 1992, there is no suggestion that the agreement for sale was a subject to the production of a certificate from a veterinary surgeon.  On the other hand, I am persuaded by the evidence of Mrs Elizabeth Parker that, during the negotiations for the sale of the horse, there was mention by Mrs Brewster that she would require a certificate from a veterinary surgeon for the purpose of insuring the horse and I have little doubt but that Mr Cotter agreed to furnish such a certificate.  Again, he would have no good reason for refusing to do so.  Accordingly, I reject Mr Cotter's evidence in that regard and I also reject his evidence that he was not instrumental in furnishing the Defendant with a copy of Mr Hutch's certificate of the 8th July, 1992.  In this regard, as I have already pointed out, Mrs Brewster gave evidence that she received that certificate without a covering letter in an envelope addressed to her in handwriting which she recognised as being that of the Plaintiff and she said that she recognised that handwriting because it was the same as the handwriting on a card which she had received from the Plaintiff in the month of April, 1992 and on the envelope in which that card was enclosed.  As it happened, the Plaintiff gave evidence that the card which he accepted he had sent to the Defendant in April, 1992 and the envelope in which it was enclosed was written by his wife, but I am satisfied that it was in the same handwriting as that on the envelope to the Defendant in which Mr Hutch's report of the 8th July, 1992 was enclosed.  Accordingly, as I have said, despite his protestations, I think that the Plaintiff was, in fact, instrumental in forwarding Mr Hutch's report of the 8th July, 1992 to the Defendant.  I might add that I also do not accept the Plaintiff's evidence that he did not forward Echo Boy's passport to the Defendant on the 27th July, 1992, as she said that he did.  Again, I am persuaded by the handwriting on the envelope in which that passport was sent to the Defendant that it emanated from the Plaintiff.  I think that the Plaintiff's lack of honesty with regard to these two matters is deplorable.  I can only surmise that he must have persuaded himself that any concessions that he might have made with regard to those two matters would have damaged his case but, whatever his reasons, I think that his dishonesty was inexcusable.  On the other hand, even though I accept that, when the sale of the horse was being negotiated, the Defendant requested that she be furnished with a certificate from Mr Hutch and the Plaintiff agreed to furnish such a certificate, as I have already indicated, I think that it is clear that the Defendant required that certificate; not for the purpose of satisfying herself as to the fitness of Echo Boy, but for the purpose of having the horse insured and, therefore, the production of that certificate was not a term of the agreement for sale to the extent that failure to produce it would entitle the Defendant to avoid the sale.  In any event, the Plaintiff did, in fact, produce a certificate from a Mr Hutch and there was no evidence which satisfied me that that certificate was not suitable for the purpose of insuring the horse.  As for the allegation that the agreement for sale was subject to a term that Echo Boy would be ideal as an event horse for the Defendant's daughter, while the Plaintiff conceded in evidence that he had expressed the hope to the Defendant that the horse would be suitable as a show jumper, or a hunter or even an event horse, in the circumstance that, at the time of the agreement for sale, the horse had not yet been broken, or ridden, I was satisfied by the available evidence that it was impossible for anyone, much less the Plaintiff, to prognosticate with any certainty as to how it might eventually turn out and therefore, I do not accept that Mr Cotter agreed, by implication or otherwise, that it was a term of the said agreement that the said horse would be ideal as an event horse.  However, I think that it would be an implicit term of the sale of any horse that it had no known vices and, accordingly, I accept the Defendant's assertion that that was a term of the agreement for sale the subject matter of these proceedings.  
	Given that it is my view that the said agreement for sale was subject to terms; firstly, that Echo Boy had never been lame in its life and, in particular, was not lame when sold by the Plaintiff to the Defendant on the 15th July, 1992 and, secondly, that it had no vices, I must now consider whether or not the Plaintiff was in breach of those terms. In this connection, as I have already indicated, I am persuaded by the evidence of Mr Bruce David Steele, a veterinary surgeon, who gave evidence on behalf of the Defendant, that, when he examined Echo Boy on the 21st July, 1992, it manifested signs of lameness and I fully accept Mr Steele's evidence that a subsequent x-ray examination of the horse's feet showed that it was suffering from degenerative joint disease which, in all likelihood, had been present for approximately six months.  I accept this evidence because, essentially, it was not contradicted.  However, while the horse may well have manifested signs of lameness when first seen by Mr Steele on the 21st July, 1992 and, indeed, may also have manifested such signs when examined by Mr Stephen Wilson, another veterinary surgeon who examined the horse on behalf of the Defendant on the 18th July, 1992 and it may well be that it was suffering from degenerative joint disease in both feet during the previous six months, it does not, in my view, follow that the Plaintiff was aware that the horse was lame, or that it was suffering from degenerative joint disease when he agreed to sell it to the Defendant.  In this regard , there was irrefutable evidence that, between the 24th May, 1992 and the 15th July, 1992 inclusive, Echo Boy had participated in eleven different horse shows throughout the country and, on each occasion, he had performed with distinction being champion horse on four occasions, second on four occasions and third on three occasions.  Moreover, there was evidence, which I accept, that if, during any one of those shows, the horse had exhibited signs of lameness it would have been taken out of the show by the relevant judge.  That never happened so I think that I am entitled to conclude that the horse never manifested signs of lameness during any one of those shows.  Moreover, apart from the evidence of the Plaintiff himself, who said that, from the time that he purchased  Echo Boy in March of 1991, it had never manifested any signs of lameness to him, there was evidence from a Ms Mary Connolly, a teacher, who had known Echo Boy since it was purchased by the Plaintiff and who had attended seven of the shows in which it had performed with distinction that she had never noticed any manifestations of lameness in the horse and evidence from a Mr Gerry Daly, a neighbour of the Plaintiff, who had also known Echo Boy since the Plaintiff acquired him and had attended nine of the shows at which the horse had performed with distinction and who also asserted that he had never noticed any lameness in it.  Add to that the certificate of the 8th July, 1992 furnished by Mr Liam Hutch in which he certified that, on that date, he had examined Echo Boy and had not found any clinical signs of disease, injury or physical abnormality and the sworn testimony of Mr Henry Wall, a veterinary surgeon employed by the Royal Dublin Society, who had examined Echo Boy on the 14th July, 1992 and, as a result of that examination, concluded that the horse was fit and sound and, in particular, was not lame and I am inexorably drawn to the conclusion that, whatever may have been wrong with Echo Boy when seen by Mr Wilson on the 18th July, 1992 and when seen by Mr Steele on the 21st July, 1992, it was not lame at the time when it was sold by the Plaintiff to the Defendant, the Plaintiff had no good reason to suspect that there was anything physically wrong with it at that time.  In this regard, I have little doubt but that, as a result of the degenerative joint disease discovered by Mr Steele, the probabilities are that Echo Boy is now lame and will not be suitable as an event horse for the Defendant's daughter but, that is as it may be, I do not accept that it was lame at the time that the Plaintiff sold it to the Defendant.  Accordingly, I do not think that the Plaintiff misrepresented the horse's condition to the Defendant and, in particular, I do not think that there was any breach of the term of the said agreement that Echo Boy had never been lame prior to the said agreement for sale.  In this regard, I have every sympathy for the Defendant although I am not convinced that, even had she arranged for a veterinary examination of Echo Boy at the time of sale, she would have been any wiser about its condition because she admitted in evidence that such an examination would not have included an x-ray examination and, as I interpret Mr Steele's evidence, the degenerative joint disease from which the horse suffers would only be disclosed from an x-ray examination.  As for the suggestion that Echo Boy suffered from the vice that it was a box walker, there was, in my opinion, no evidence whatsoever to support that proposition and therefore, I do not think that there was a breach of the term of the said agreement of sale that the horse had no vices.  
	Having regard to the foregoing, I dismiss the Defendant's appeal and affirm the Order of the learned Circuit Court Judge.