Scottish Court of Session Decisions

William Newlands, horse dealer, Glasgow, on 5th January 1884 purchased from William Leggatt, horse dealer, a chestnut mare which was warranted sound. The price paid was £39, 15s. Newlands took delivery of the mare and placed her in his stables. The mare died on the 17th January. This was an action raised by Newlands against Leggatt to obtain repayment of the sum of £39, 15s., the price of the mare.

The pursuer averred that at the date of the sale the mare was not conform to warranty, as She was labouring under a severe cold and was not a good feeder, of which the defender was well aware.

He further averred that he took the greatest care of the mare while she was in his stables, but that she refused to feed, and died on the 17th January.

The defender averred that while warranting the mare sound at the date of sale, he only, as regarded her feeding, represented to the pursuer that she had always fed well with him. He denied that she had any cold when delivered to the pursuer. He further averred that upon the fourth day after he got delivery of the mare, the pursuer docked her rump or tail, and he alleged that her death was caused by excessive fever brought about by neglect of a slight cold which she had caught after she left his (the defender's) stables, and by the docking of her tail.

He pleaded, inter alia — “(2) The mare in question having been at the date of delivery sound, the action should be dismissed. (3) The mare having died through the pursuer's own neglect and act, the defender is entitled to absolvitor. (4) In any case, the action is barred by the pursuer having, without defender's authority, docked the rump or tail of the mare in question.”

The Sheriff-Substitute ( Spens) pronounced the following interlocutor, from which the facts fully appear—“Finds the defender, on or about 5th January 1884, sold the pursuer a chestnut mare at the price of £40; Finds it was sold with a warranty that it was sound, all correct, and a good feeder: Finds the said mare was taken delivery of by pursuer on or about said date: Finds, under reference to note, that while with the pursuer said mare was not properly treated: And finds, as matter of law in these circumstances, that the pursuer is barred from making any claim of repetition for the price of said mare, which died in the defender's hands on or about the 17th day of said month of January: Sustains accordingly the defences, and assoilzies the defender: Finds' him entitled to expenses, &c.

“ Note. — There is some conflicting evidence as to the precise terms of the warranty granted. I think there is no doubt the mare was warranted to be sound and a good feeder, and I also incline to believe that it was warranted all correct. I do not think it is proved that when she left defender's stables the mare was unsound, or had manifested any signs of anything being the matter with her. She was sound and a good feeder, therefore, when she left the stables. It is open to argument that she must, when she left the stables, have had the seeds of the cold in her which ultimately developed into inflammation of the lungs, through which, or the fever caused by which, she died. If this argument were sound, the further argument would then follow that the mare was not at

Page: 541↓

the date of sale all correct. This would, I think, be a difficult question to determine, and in the view which I take of the case it is unnecessary to decide it.

The evidence of the defender goes to shew that immediately after getting delivery of the mare symptoms of cold manifested themselves on her. No veterinary surgeon was called in, but at pursuer's own hands the mare was blistered the day after she arrived at pursuer's stables. The day after that again the pursuer proceeded to inflict upon the mare the painful operation of ‘docking.’ It is open to argument that by the pursuer at his own hands permitting such operation, so that the mare could not be restored in such a state as received, per se any right to return the mare was barred. There is always a certain element of risk attaching to docking, and I am inclined to think that it is a sound contention in point of law that the ‘docking’ of the mare's tail per se bars return or otherwise repetition of the price. But I am at present dealing with this matter with reference to the treatment which the mare received as aggravating, or tending to aggravate, any ailment from which she was suffering. It is obvious to common sense, but the skilled evidence points in the same direction, that it was an inadvisable thing, to say the least of it, to dock a mare which had been blistered the previous day, and which at the time of docking was still labouring under symptoms of cold. Further, it appears that the mare, subsequent to the date she came to the pursuer's stables shewed symptoms of lameness. A reasonable explanation of this lameness may be afforded by the conjecture that it was due to injury received either at the time when the operation was effected, or through nervous excitement subsequent thereto. It is, I think, obviously plain in the circumstances ‘docking’ would not have been sanctioned by any veterinary surgeon who had been consulted. Subsequent, however, to the docking, according to the pursuer's own account, the mare gradually got worse, but in spite of this no veterinary surgeon was called in till the very last moment, when the case was perfectly hopeless. It is, I think, impossible to say whether, if skilled assistance had been summoned at an earlier date, the mare would have pulled through or not, but the pursuer is not to reap the benefit of any dubiety upon that point. If he was looking to his warranty, or intending to act upon it in any way, it was his plain duty to the warranter to call in, long before he did, skilled assistance. Whether the mare died from inflammation of the lungs, or whether death was due to the fever induced by inflammation, it is not necessary to determine. But I consider it plain, first, that it was improper treatment of a mare labouring under a cold, and blistered the previous day, to dock her tail; and second, that there was neglect of an ordinary and reasonable duty on the part of pursuer in not calling in skilled assistance at a much earlier date than he did. I therefore think the mare was improperly treated in pursuer's stables, and as matter of law I have no hesitation in holding that improper treatment bars the claim for repetition.”

On appeal the Sheriff ( Clark) pronounced this interlocutor—“Finds that the mare in question was sold under a warranty of being sound and a good feeder: Finds that breach of that warranty has not been established: But finds that, in any view, the pursuer is barred from pleading breach of warranty by his own conduct, inasmuch as he did not return the mare, or communicate with the defender as soon as he had reason to suspect unsoundness, but instead thereof did, without any communication with the defender, and without even calling in veterinary aid, proceed to treat the mare by blistering and otherwise, and did further subject her to the operation of docking while labouring under indisposition: Therefore adheres to the interlocutor appealed against: Finds the pursuer liable in the expenses of the appeal, and decerns.”

The pursuer appealed to the Court of Session, and argued — The horse was unsound at the date of sale; it was suffering from a cold, which developed into the complaint of which it subsequently died. The pursuer had a practical knowledge of horses, and treated the mare properly. No allegation of unsuitable treatment was made on record. In a case like the present, cold was unsoundness, and the mare was disconform to warranty at the date of sale. The pursuer was in the circumstances entitled to repetition.

Authorities— Gardiner v. M'Leavy, February 24, 1880, 7 R. 612; Dykes v. Hill, July 20, 1860, 22 D. 1523; Coates v. Stevens, 2 Moody and Robinson, 157; Benjamin on Sales, 612; Brown on Sale, 307; Ralston v. Robb, M. App., Sale, 6, p. 10.

Replied for defender—The evidence showed that the mare caught cold after she left the defender's stables. The cause of her death was undoubtedly inflammation and shock to her system caused by the docking of her tail. The pursuer was barred by his actings from claiming repetition.

At advising—