Scottish Court of Session Decisions

This was an action brought in the Sheriff Court at Fort William by George Malcolm, factor, Iuvergarry, against Ewen Cross, shepherd, Glen Turret, Roy Bridge, in which the pursuer craved (1) repetition of the sum of £29, being the price paid by the pursuer for a horse purchased by him from the defender on 1st June 1897; and (2) decree for the expense of the keep of this horse from 16th July 1897, when it was discovered to be unsound, and intimation of rejection was sent to the defender, until it should be sold under judicial sale, less the free proceeds of such sale.

The pursuer averred, inter alia—“(Cond. 1) On or about 10th May 1897 the pursuer met defender at Spean Bridge where the horse in question was shown 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.”

The defenders denied that the horse was warranted sound. It was ultimately admitted that it was unsound when sold to the pursuer. The pursuer did not maintain that the defender knew the horse to be unsound at the date of the sale.

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—“(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.”

A proof was allowed. The facts may be summarised as follows:—In April 1897 the pursuer met the defender by arrangement for the purpose of looking at a horse which the defender had for sale. No sale was effected upon this occasion, but the horse was examined by the pursuer and by an innkeeper called Wilkinson, and some conversation with regard to it took place between the parties. Referring to this interview, the pursuer deponed—“He (Wilkinson) said he had suspicion as to one of the hocks being unsound. He asked defender why the hock was so thick and unsound looking, and he replied that what appeared wrong with the horse arose from bad shoeing on the last occasion. 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 Gross's representation, as I had had previous dealings with him of a satisfactory kind.”

The defender deponed—“Mr Malcolm did not ask me to warrant it sound. … While in the hotel Mr Malcolm did not ask me to warrant the horse for any purpose or for soundness. … Mr Wilkinson remarked that he thought there was something wrong with the horse's leg, and I said that so far as I was aware there was nothing wrong. I told Mr Wilkinson that if I thought there was anything wrong with the horse I would not sell it to Mr Malcolm. … Mr Wilkinson said nothing to me about the horse being lame, nor did he advise me not to warrant the horse as sound. I am sure that I did not tell Mr Wilkinson that I was to warrant the horse sound.”

Wilkinson deponed—“When the horse was put into the stable I asked defender if he warranted it as thoroughly sound, and he said he did. I cannot remember that I heard the defender give to pursuer a warranty in any terms. Mr Gross said to me in the stable that he was going to give a warranty of soundness to Mr Malcolm. I told Mr Malcolm that I thought the horse was not sound. He replied that he had every confidence in the defender, and I did not press my opinion upon pursuer. I warned defender that, as Mr Malcolm was a great friend of his, he should be careful not to warrant a horse sound which was not so.”

The price which the defender asked was £31.

Some weeks later the defender having received no communication about the horse from the pursuer took it to Invergarry himself, and ultimately left it there with the pursuer's consent, on approval. Referring to this occasion the pursuer deponed—“Defender brought the horse, and in the presence of William Hislop, groom at Invergarry, he repeated the warranty of soundness in much the same words as used by him at Spean Bridge.” Hislop deponed—“At the door pursuer and defender had some talk about the horse, when the defender said he would guarantee the pony to be a quiet pony in all kinds of work except carriage harness work, which it had not been used to. I did not hear him guarantee the horse in any other respect. I did not hear pursuer ask for a guarantee in any other respect. That was all I had heard mentioned with regard to a guarantee.” The defender said that when he met Mr Malcolm with the groom in charge of the horse he did not warrant its soundness.

Thereafter the horse was given light exercise by Hislop with a view to its being

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fit for carriage work when Mrs Ellice arrived from the south.

Some weeks later, the defender having heard nothing further from the pursuer, wrote to him asking whether he meant to keep the horse. Mr Malcolm replied saying that he was going to keep the horse, and on the following day (2nd June) he wrote to the defender—“Referring to my note of yesterday, I now send you deposit-receipt with the Caledonian Bank here for £29 in your favour in payment of the price of the black pony which you left here for Mrs Ellice. This amount is slightly under the price which you asked for the pony, but as I am informed by the most competent judges that the selling value of the horse would not have been more than from £26 to £28, I have no doubt you will feel yourself well satisfied with the enclosed amount. I also send you a receipt for the same, which please sign and return.”

The defender accepted the sum mentioned although smaller than what he had originally asked, but no letter from him in answer to the pursuer's letter of 2nd June was brought under the notice of the Court. On record he admitted (Ans. 2) that “on 1st June 1897 the pursuer purchased the horse which had been left in his custody on 24th April 1897 for approval.”

From this time until Mrs Ellice arrived the horse did no heavy work, but was merely exercised. When Mrs Ellice came to Invergarry about the middle of July it was put into double harness. Mrs Ellice's coachman then pronounced it to be unsound from spavin in both hocks. The pursuer thereupon, of date 16th July, wrote to the defender—“I have to inform you that the black pony which I bought from you for Mrs Ellice, and which you represented and sold as sound, has broken down in both hocks as soon as it was put to regular work. Mrs Ellice, who has come here, wont use it, as it is quite lame, and she is displeased with me for buying it. I hope you will take it back. It was really bought on that footing. Mrs Ellice is willing to allow you £5 for the time she had it. Let me know, please, at once, whether you accept this offer. If you do not, I will call in a veterinary surgeon to prove the animal's unsoundness, which must have been of long standing, and then I will have the matter put right in another way.” In answer to this letter the defender on 23rd July wrote to the pursuer as follows—“I have received your letter stating that the pony which I sold to you is unsound and lame, whereas he was sound in limb and wind and very promising when I sold it to you, otherwise I would not have given it to you. You had the horse for about four weeks to see if it would suit you, and then paid it. I am not supposed to be responsible for it at any time that an accident might happen, and therefore I am under the belief that it is against right and reason to ask me to take the horse back.” The pursuer replied on 28th July 1897—“I have received your letter of 23rd inst. in reference to the black pony which you sold to me. I must say your letter is very unsatisfactory, and I have no other course to follow than to call in a V.S., and to sell the pony for what it will fetch after receiving his certificate. I will then raise an action at Fort William against you for any deficiency in the price obtained. No accident befel the pony. It was simply that the unsoundness in his hocks began to show as soon as he was put to regular work. You surely remember Mr Wilkinson having alluded to one of his hocks when you were showing him to me at Spean Bridge.”

A veterinary surgeon was accordingly called in, who examined the horse and certified that it had spavins on both hocks, and was therefore unsound.

Thereafter the horse remained in the pursuer's possession until 22nd October, when it was sold by warrant of the Sheriff, and realised £10, 17s. 6d. The delay in applying for warrant to sell was not explained in the proof, and this ground of defence apparently was not discussed in the Sheriff Court.

The pursuer deponed that after paying the expenses of the petition and sale, and charging keep of the horse from 16th July until sold, he was out of pocket £5, 0s. 5d.

During the period between 16th July and 22nd October the horse did not receive any treatment for the cure of its ailment.

It appeared that in the district horses of this description were depreciated in value in autumn owing to the coaching season being over by that time.

In reference to the question whether the horse was timeously rejected the pursuer deponed—“I regarded the period during which the horse was at Invergarry as within the terms ‘on approval,’ which were terms agreed on between myself and defender. The horse having been sent before I expected or desired it makes the time during which it was in my possession look longer. I regarded the time that the horse was in my possession as quite reasonable for testing its fitness for the purpose for which it was bought.” … “When defender and I spoke of the horse being on trial, I had in view that the time should extend until Mrs Ellice came to the country.”

On 23rd February 1898 the Sheriff-Substitute ( Davidson) issued the following interlocutor:—“Finds in point of fact (1) that in April 1897 the pursuer and defender met by arrangement at Spean Bridge Hotel that the defender might show a horse belonging to him to the pursuer to whom he wished to sell it; (2) that on said occasion the defender gave an express verbal warranty that the horse was sound in all respects, but a sale was not then completed, and the defender took the horse home with him, the pursuer promising to write him when he could receive the horse; (3) that in the end of April or early in May the defender, not hearing from the pursuer, took the horse to Invergarry, and at the pursuer's request, and with the sanction and approval of the defender, it was put into the stables there belonging to Mrs Ellice of Glengarry, in charge of her groom William Hislop, that it might be exercised and tried

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as to its suitableness as a carriage horse for Mrs Ellice; (4) that on 1st June the pursuer intimated to defender that being satisfied with the progress of the horse in harness, he would on the following day pay to his credit in bank the sum of £29 as its price; that he did so, and that defender accepted said price, and the sale was concluded; (5) that between the meeting of the parties at Spean Bridge Hotel and the date of sale no written or verbal communication appears to have passed between them in regard to said warranty of soundness; (6) that from the time the horse was placed in charge of the groom until the arrival of Mrs Ellice at Invergarry about the middle of July, the horse was not put to any work or use by the pursuer for his own behoof as his own property, and that it received only moderate and gentle exercise, and was well cared for, to fit it for the carriage work to Mrs Ellice for which pursuer bought it; (7) that on Mrs Ellice's arrival the horse was put to regular work by her coachman, and he discovered that it was unsound in both hocks and quite unsuitable for its purpose; that on 16th July the pursuer wrote to the defender that the horse had broken down on both hocks, and requesting him to take it back, and that the defender refused to do so by letter addressed to the pursuer dated 23rd July, and the horse has since been sold by judicial warrant on the pursuer's application; (8) that the horse was unsound by reason of spavin when left by the defender at the Invergarry stables, and at the date of the sale to the pursuer, and that the unsoundness was not apparent and not known to the parties at either date, and might not be readily detected by them, being persons without skill and knowledge of spavin: Finds in law that in respect of said unsoundness and consequent breach of warranty, the pursuer is entitled to repetition of the price paid by him for the said horse: Therefore repels the defences, decerns against the defender for the sum of £29, reserving to him any claim he may have in connection with the sale of the horse under judicial warrant: Finds the defender liable in expenses,” &c.

The defender appealed to the Court of Session, and argued—(1) Where an express verbal warranty was alleged, the very words used must be proved so that the Court might be in a position to judge whether they amounted to a warranty in law— Robeson v. Waugh, October 30, 1874, 2 R. 63; Rose v. Johnston, February 2, 1878, 5 R. 600. It could not be maintained that any particular words, of such a kind as to constitute an express verbal warranty, had been proved to have been uttered by the defender at any time. (2) Apart from that, however, even supposing that words were used at the first interview, or when the horse was left on trial, which, if a sale had been concluded on either of these occasions, would have amounted to a warranty, yet as no sale was concluded till some time afterwards, these words could not be imported into the subsequent bargain so as to make it a sale upon warranty, there being no mention made of a warranty at the time when the purchase was made— Hopkins v. Tanqueray (1854), 15 C.B. 130—more especially in view of the fact ( a) that the price ultimately offered by the buyer and accepted by the seller was less than the price asked when the warranty was said to have been given, and ( b) that the horse had been out of the seller's custody for a considerable time at the date of the sale. The terms of the bargain were embodied in the pursuer's written offer, which said nothing about warranty, and the previous communings could not be considered. (3) Even assuming that the horse was sold with a warranty, the pursuer was barred, because (a) his intimation of rejection was too late; and ( b) he failed timeously, after intimation of rejection, either to sell the horse by judicial warrant or to place it in neutral custody. A purchaser, who intimates rejection, if the seller refuses to take back the horse, was bound at once to resort to judicial proceedings, or to place it in neutral custody— M'Bey v. Gardiner, June 22, 1858, 20 D. 1151; Caledonian Railway Company v. Rankin, November 1, 1882, 10 R. 63, per Lord Young at p. 66. The only relevant excuse for not doing so would be a communication from the seller authorising the buyer to retain the horse in his custody after intimation of rejection. Here no such communication passed between the parties. Sufficient notice of the defence founded upon the pursuer's inaction after intimation of rejection was given by the plea of mora, which was the plea in M'Bey and in Caledonian Railway Company, cit.

Argued for the pursuer and respondent (1) A warranty of soundness was given. Whether an express verbal warranty was proved or not was a jury question, and the proof required was just the same as in the case of any other verbal contract— Rose v. Johnson, cit., per L.J.C. Moncreiff, at p. 603, where there were some observations which must be taken to be a comment on the dicta of L.P. Inglis in Robeson v. Waugh, cit., at p. 66 (foot). Here, moreover, the defence was not that the words used did not amount to a warranty but that nothing was said about a warranty of soundness at all. The exact words used were not therefore of such importance as in the cases cited. If the evidence of the pursuer and Wilkinson was believed, then there could be no doubt that a warranty of soundness was given. (2) From the time when the first interview took place till the horse was sold the transaction was continuous. The defender's offer to sell with a warranty as originally given remained open for the pursuer's acceptance all the time until it was finally accepted by him, for his letter was not a fresh offer, but an acceptance subject to a small modification which was acquiesced in by the defender. This acceptance did not show that the warranty embodied in the defender's offer was dispensed with. The sale as ultimately concluded, therefore, was a sale on warranty. (3) The rejection was timeous. The horse was bought for Mrs Ellice, and subject to trial by her; it

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could not be fully tried at once, as it was young and not in condition, and it could not be properly tried till Mrs Ellice came. As soon as she came and it was fully tried its unsoundness was discovered, and intimation of rejection was given. The defender was well aware of all this. In these circumstances—and this was always a question of circumstances—the rejection was timeous. (4) As to the subsequent delay in applying for warrant to sell, that was accounted for by the remoteness of the locality and the Court being in vacation. As regards neutral custody, it was extremely improbable that in such a district there was any other place within a reasonable distance where the horse would have been as well stabled as it was. But further there was no notice given of this defence, and if proper notice had been given, evidence might have been led to explain the delay.