Scottish Court of Session Decisions

This was an action brought for repayment of the price of a horse sold by the pursuer, acting as agent of the defender, and which was returned to the pursuer as being disconform to warranty. The facts are sufficiently explained in the interlocutor of the Lord Ordinary, which was as follows:—

“ Edinburgh, 18 th March 1873.—The Lord Ordinary having heard counsel for the parties, and considered the argument and proceedings, including the proof: Finds it proved that the horse in question was, on the 31st of January 1872, sold by the pursuer, acting as the defender's agent, to, and taken delivery of by, Mr William Curror, acting for Mrs Baird of Elie, at the price of £105, under a written warranty that he was sound and quiet to ride and drive in single and double harness, and that the horse, if he did not suit the lady, would be taken back and the money refunded: Finds it also proved that, although the horse was within a week thereafter tried by Mr Curror and Mr Jamieson, the factor on the estate of Elie, and found by them not to be conform to the warranty, inasmuch as he was not quiet to drive in double harness; upon this being communicated by Mr Curror to the pursuer, he was told by the pursuer, without reference to or authority by the defender, on two several occasions in the course of the month of February 1872, to keep the horse and continue to try him, as he would ultimately turn out to be satisfactory: Finds that, accordingly, the horse was retained by Mr Curror in his possession till on or about the 1st of March 1872, when he was sent by him from Fifeshire to Rosemount in Ayrshire, where Mrs Baird then resided, and that the horse, having been there tried, was again found not to be quiet to drive in double harness, and was returned by Mrs Baird to the pursuer on the 15th day of the said month of March: Finds it also proved that the horse was then received back in bad condition into the stables of the pursuer, and kept by him without objection: Finds it proved that the return of the horse to the pursuer, as now referred to, or that any objection had been made to him either by Mr Curror or Mrs Baird, was not intimated by the pursuer to the defender until on or about the 10th of April 1872, being nearly two months and a-half after the horse had been sold and delivered to Mr Curror: Finds that the pursuer has failed to prove that he had any authority from the defender to receive back the horse as before stated: Finds that the pursuer, on or about the 29th of May last repaid to Mr Curror the price of the horse; without the consent or authority of the defender, and without being judicially ordained to do so; Finds, in the foregoing circumstances, that the defender is not liable to the pursuer in the conclusions of this action; therefore assoilzies him from the same, and decerns: Finds the defender entitled to expenses; allows an account thereof to be lodged, and remits it when lodged to the auditor to tax and report.

Note.—The evidence in the present, as in most disputes about horses, is conflicting and unsatisfactory in many respects. But it appears to the Lord Ordinary that the findings of fact in the interlocutor he has now pronounced are sufficiently supported, and, if so, that the defender has been rightly assoilzied.

The horse in question was originally purchased in 1871 by the pursuer, in Ireland, as sound and quiet to drive in single and double harness, and he was afterwards sold by the pursuer to the defender

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on that understanding. This is admitted by the pursuer himself in the course of his testimony; and he also admits that when the horse was again sold by him as acting for the defender, on 31st January 1872, to Mr Curror, the defender explained, in his as well as Mr Curror's presence, that he had not himself tried the horse in harness. It is obvious, therefore, that although the defender must be held on proof to have warranted the horse to Mr Curror as sound and quiet to drive in single and double harness, he did so entirely on the information and warranty he had previously himself received from the pursuer. This may, the Lord Ordinary thinks, go far to account for what could not be otherwise well accounted for in the subsequent conduct of the pursuer in reference to the horse. Be that, however, as it may, the Lord Ordinary cannot doubt that the pursuer, by his own unauthorised acts and conduct, has barred himself from maintaining his present claim against the defender. It is a well-established principle in regard to the sale of a horse that the buyer must without any unnecessary delay return him on discovering that he is faulty and disconform to warranty. Now here, although the horse in question was sold and delivered by the pursuer, as acting for the defender, to Mr Curror, on the 31st of January 1872, he was not returned to the pursuer till the 15th of March following—that is to say, till after the lapse of between six and seven weeks—and it was not till the 10th of April thereafter, between three and four weeks more, that the pursuer made any intimation on the subject to the defender, when he, of that date, wrote the letter, No. 33 of process, stating;—‘Your horse has been returned here. The gentleman called to-day. We will have to do something at once about it. I am very sorry about anything having gone wrong with the horse, but the sooner we get settled the better. You will see what you think of him when you come in.’ The pursuer does not in this letter state that the horse had been returned on the 10th of March; he leaves it rather to be inferred that he had just been returned when he wrote. Nor does he refer to any communications he had received from Mr Curror on the subject of the horse in the previous month of March, and as little does he explain in what condition the horse was when he was returned.

In point of fact, however, it turns out, as is clearly shown on the proof, that Mr Curror had tried the horse in double harness within a week after obtaining delivery of him, and had then found he was not quiet to drive in double harness, or conform to warranty in that respect. It further appears very clearly that the horse was not only so tried by Mr Curror, but that it was also tried by Mr Jamieson, Mrs Baird's factor, along with Mr Curror, and about the same time, and with a similar result. Mr Jamieson accordingly depones that ‘he kicked and broke one of the traces.’ And on being asked what opinion he formed of the horse, he says, ‘I never liked the horse. I did not think it was a match for the other horse at all. (Q.) Did you think, as the result of the second day's trial, that he would suit Mrs Baird or not?—(A.) I never thought he would suit. (Q.) In short, after the second day's trial, you had no doubt he would not do?—(A.) I would not have had the horse at all. (Q.) Did you tell Mr Curror that?—(A.) No. (Q.) Did Mr Curror know what your opinion of the horse was?—(A.) I have no doubt he knew perfectly well what my opinion was from the way in which I looked, although I did not express it. I was not at any other trial of the horse. I was satisfied from what I had seen that he would not do, and I wanted to have nothing more to do with him.’

Having regard to the evidence, it cannot be questioned that it was the duty of Mr Curror to have at once returned the horse, or that if he did not do so he would be barred from thereafter returning him and reclaiming the price. But it appears from the pursuer's own testimony that Mr Curror did, without loss of time, on two several occasions in February 1872, inform the pursuer of the result of his trials of the horse, and that he would require to return him. It may also, the Lord Ordinary thinks, be fairly enough held that the horse would have then been returned, had it not been that the pursuer, without any authority from or even the knowledge of the defender, desired Mr Curror ‘to keep him on.’ On this point the pursuer expressly says that he told Mr Curror ‘that if he kept him on for some time the ‘freshness might disappear, and he agreed to do so.’ But this was an entirely new bargain or arrangement made by the pursuer with Mr Curror, to which the defender was not a party in any form, which was not authorised by him, of which he had no notice at the time, and of which he does not appear to have been made aware of till it transpired in the course of the proof in the present litigation.

The pursuer, however, having entered into that new arrangement with Mr Curror, may have felt himself bound to take back the horse, when ultimately returned to him, after the lapse of between six and seven weeks, on the 15th of March, and also to refund the price, as he afterwards did, in the course of the month of May. But the Lord Ordinary is unable to see on what ground the defender is bound to relieve the pursuer, as he is asked to do in this action, from the consequences of these, his own unauthorised acts. It may well be doubted, indeed, whether, even if the horse had been returned to the pursuer in February, immediately on his having been tried and found disconform to the warranty, he had any right to receive him back without further authority from the defender; but certainly he had no right or authority, as acting for the defender, to instruct Mr Curror to keep on the horse till the 15th of March, and then to receive him back without inquiry or objection, and afterwards to refund the price—the more especially was the pursuer not entitled thus to act, so as to bind the defender, seeing that the horse, when returned in March, is proved to have been in a greatly worse condition than he was in when sold and delivered to Mr Curror on the 31st of January.

The pursuer at the debate seemed to maintain that he was entitled to act as he did for two reasons—1st, that it was part of the original bargain with Mr Curror that he might keep the horse for a couple of months before sending him to Mrs Baird for her approval or rejection; and, secondly, that, at any rate, Mr Curror's objections to the horse, and the return of him on the 15th of March, were all timeously made known to the defender through Mr Rorison, by whose instructions, as authorised by the defender, he, the pursuer, acted throughout as he did. But these grounds of excuse for his conduct do not appear to the Lord Ordinary to have any sufficient support in the proof. There is

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nothing in the warranty which was given to Mr Curror with the horse entitling him to keep it for a couple of months or any other given time. There appears at most to have been only some loose conversation on the subject; and what is very important on this point is the fact stated by Mrs Baird, that she never authorised Mr Curror to keep the horse, in place of at once sending him to her for her approval or rejection. And at any rate it cannot, in any view of this matter, be held that Curror was entitled without fresh authority to keep the horse, after trying him and finding that he was not conform to the warranty. Accordingly, the proof shows that he would have been timeously returned in February after trial had it not been for the unauthorised instructions of the pursuer to Curror ‘to keep him on.’ In regard, again, to the pursuer's other statement or plea, that his conduct was authorised by the defender through Rorison, it is enough to say that he is entirely contradicted in this by that individual, who expressly says that he never had any authority from the defender to act for him in the matter, and never was instructed by the pursuer to make any communication or give any notice to the defender on the subject of the horse.

In the circumstances of this case as now explained, the Lord Ordinary apprehends that Curror, as the buyer of the horse, was in mora in returning him, supposing he had not been directed by the pursuer ‘to keep him on,’ and, if so, that the defender, as the seller of the horse, would not have been bound to take him back and refund the price—Bell's Prin. sec. 129 (4), and cases there cited. And if the Lord Ordinary he right in this, it follows that the defender is not liable to the pursuer in the relief sought by him in the present action, in respect the latter had no authority from the defender to direct Curror to keep on the horse after he had tried and found him to be disconform to warranty, or to receive him back on the 15th of March, and thereafter to refund the price.”

The pursuer reclaimed.