Scottish Court of Session Decisions

George Robertson Chaplin, residing at Murlingden, Brechin, on 8th May 1885 raised this action against David Jardine, a horse-dealer in Edinburgh, for the sum of £85, being the price he had paid the defender for a chestnut horse which he had bought from him on 15th January 1885, and paid for on 29th January 1885, and of which he had taken delivery on 28th January 1885. The ground of action averred by the pursuer was that the defender had warranted the horse sound in every way, and perfectly quiet in harness, but that the horse had turned out not conform to warranty. The defence was (1) no warranty given, and (2) no timeous rejection; the defender pleading—“The horse having been the property of the pursuer since the 15th day of January 1885, the present action should be dismissed with expenses.”

The latter defence alone need here be referred to.

The horse was purchased on the 15th January 1885, and was delivered on the 28th of that month, and the price paid the next day. On 23d February Robert Campbell, the pursuer's coachman, wrote to Jardine as follows:—“Dear Sir,—Just a few lines to say that the horse is doing well, and expect to hear from you soon, with a little discount.—Yours respectfully, Robert Campbell.”

The pursuer stated on record that he “went from home for six weeks immediately after the said horse was sent to him, and before he had used him.” On 19th March, having by that time returned home, he wrote thence to the defender, as follows:—“Dear Sir,—I have been from home for the last month, and expected to have heard from you ere this about the bay horse. I do not quite know what to do about the chesnut I bought from you. So far he has made no mistake in harness, but in saddle he is quite the most vicious animal I ever saw. He rises straight up on meeting another horse and makes for them, and altogether is a most dangerous animal both to his rider and to those he meets on the road. I haven't quite made up my mind to part with him yet, but should I do so, would you take him back and supply me with another bay or chesnut, the latter for choice?”

On 24th March the pursuer wrote as follows:—“Dear Sir,—Kindly let me hear from you by return of post in reply to my letter of last week, in which I stated that I was thinking of parting with the chesnut horse I got from you. The horse is now as vicious in harness as he was before in the saddle, and I must be quit of him at once. Have you another animal likely to suit me, bay or chestnut, not more than 15.2 1 2. Please let me hear if it will suit you if I return the horse on Friday next per train reaching Waverley 2.25 p.m.”

On 1st April the pursuer's brother wrote to Jardine as follows:—“Sir,—My brother, Mr G. R. Chaplin of Murlingden, Brechin, has written to me regarding the chestnut horse he bought from you some time ago, and also in reference to the bay horse of his which is or was in your possession. He has repeatedly written to you

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himself, and as he has had no reply, he has placed the matter in my hands. From the result of inquiries made on my behalf, I find the career of the chestnut horse both before and since he came into your possession is far from satisfactory, and I now beg to give you notice that, unless you write to me to the above address on receipt of this letter, intimating your readiness to take back the chestnut, and either return the bay horse you had for sale, or send a cheque for the price you received for same, also the amount paid you by my brother for the chestnut, I will place the whole affair in the hands of the police, and instruct our lawyers to see that you are dealt with accordingly.”

On the same date the defender had written to the pursuer stating that if the pursuer came to Edinburgh he would negotiate an exchange.

No arrangements having been come to, the pursuer's agents on 28th April wrote demanding return of the price. The horse had been returned early in April and placed in a livery stable in Edinburgh.

At the proof John Duncan, who succeeded Campbell as the pursuer's coachman, deponed—“I think I was at Murlingden about a week before the pursuer returned from England [early in March]. I had the horse in question out before that. I had him out twice in single harness. He did not behave very well; in passing other horses on the road he would rear and plunge to get on them. I concluded from that that the horse was a stallion or a rig; he behaved himself like that. He acted in the same way on both occasions; I had difficulty in keeping him in.”

Pending the dispute the horse was sold under warrant of Court, and the price consigned.

The Lord Ordinary ( Fraser) found that there was a breach of warranty, and that the pursuer timeously called upon the defender to take back the horse and refund the money, which he refused to do. His Lordship therefore found the pursuer entitled to decree for £85, the sum sued for, less the price consigned in Court, which he granted him warrant to uplift.

“ Note.—.. . From the time of the delivery to the time when the pursuer peremptorily required the defender to take back the horse there elapsed a period of two months. A vendee is bound to make timeous rejection if the article he receives is said to be disconform to contract, but what is timeous rejection depends upon the circumstances of the case. If the defect of the article is immediately discoverable, then there should be immediate rejection, but if such discovery cannot be obtained without the use of the article for some time, such prompt action in the way of rejection is not necessary. The circumstances which rendered the horse sold by the defender to the pursuer restless in harness was quiescent in the ordinary condition of things, and only developed itself under the stimulus of temptation and opportunity. It was when the animal was in the company of, or met on the road, other horses that he became excited, restless, and vicious. The pursuer was absent for six weeks after the horse had been delivered, and he had not an opportunity of himself properly ascertaining the character of the animal until his return. The plea of bar founded upon the delay cannot in the circumstances be stated as against this action.”. . .

The defender reclaimed.