Scottish Court of Session Decisions

John Torrance, horse dealer in Edinburgh, claimed from David Paton, residing at Monorgan, near Dundee, £28, 8s. 6d., as being the loss he had sustained in consequence of a horse purchased by him from the defender being disconform to warranty. The pursuer purchased the horse at Perth on the 5th March. The sum paid for it was £41, and the defender gave pursuer a warranty that the horse was sound, free from vice, and a good worker. After removing the horse to Edinburgh, the pursuer resold it, but the purchaser shortly afterwards complained that it was so troublesome that he could not keep it. The pursuer was convinced that the horse was not in the condition described in the warranty, and accordingly wrote to the defender asking him to take the animal and return the purchase-money. No satisfactory answer being returned to this communication, the pursuer got the horse sold by authority of the Sheriff. The sum realised by the sale was £21, 2s., and the difference between this sum and the original cost, along with £8, 4s. 3d. for keep and maintenance of the horse for two months, and 6s. 2d. for interest, made up the claim.

The pleas in law for pursuer were—(1) The defender having Bold the horse with express warranty that it was sound and free from vice, and the horse having been unsound and vicious, and disconform to warranty, at the date of sale, the defender is bound to repeat and pay back the price received by him, with interest, less the free proceeds of sale, all as concluded for. (2) The defender is bound to make payment to the pursuer of a reasonable sum for the horse's keep while in the pursuer's possession, and other expenses and charges incurred by the pursuer as above set forth. (3) The pursuer, in respect of the facts above set forth, is entitled to decree against the defender in terms of the conclusions of the action, with expenses.

The pleas-in-law for defender were—(1) The retaining the horse in the pursuer's own possession, and under his own treatment, till the 16th of April 1869, in the face of the defender's notification of non-liability, made in direct course on 25th March, constitutes such mora as to bar the pursuer from suing the action. (2) The statements of the pursuer as to the horse being unsound at or before the date of sale being untrue, and the action being groundless, the defender should be assoilzied, with the expenses.

The issue sent to the jury was in the following terms:—“Whether on or about the 5th day of March the defender sold to the pursuer a brown horse, at the price of £41, which was then paid by the pursuer; and whether the defender warranted the said horse as sound, free from vice, and suitable for all farm work; and whether at the date of said sale the said horse was unsound, was not free from vice, and was not a good worker, or was disconform to warranty in one or more of the above particulars; and whether the said horse was offered back to the defender by the pursuer within reasonable time; and whether the defender is due and resting-owing to the pursuer the sum of £28, 8s. 6d.?”

Macdonald and Deas for the pursuer.

Scott for the defender.

Evidence was led at considerable length, which went chiefly to support the pursuer's allegations; and Lord Jerviswoode having summed up, the jury returned a unanimous verdict for the pursuer.