Gill v M'Dowell

• Jurisdiction: Ireland
• Judgment Date: 30 October 1902
• Date: 30 October 1902
• Court: King's Bench Division (Ireland)

Gill

and

M'Dowell (1).

K. B. Div.

CASES

DETERMINED BY

THE KING'S BENCH DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND ON APPEAL THERE FROM IN

THE COURT OF APPEAL,

AND BY

THE COURT FOR CROWN CASES RESERVED.

1903.

Contract of sale — Sale of hermaphrodite animal — Parties not ad idem — Fraud.

The defendant sent three head of cattle to a fair for sale, a bullock, a heifer, and an animal which from one point of view appeared to be a bullock, and from another a heifer, and which was, in fact, a hermaphrodite. The three animals were bought at £10 5s. each by the plaintiff, a cattle dealer. No warranty was given, and nothing was said as to the sex of the animals; but the plaintiff bought under the belief that he was buying either a bullock and two heifers, or a heifer and two bullocks. The defendant knew of the malformation of the hermaphrodite, and knew that the plaintiff would not have purchased it had he known of the malformation. By a careful and skilled examination the defect could have been discovered by the plaintiff; but in fact it was not discovered by him until after the sale. The animal afterwards died, the death being the direct consequence of the malformation:—

Held, that the case came within the principles laid down by Blackburn and Hannen, JJ., in Smith v. Hughes (L. R. 6 Q. B. 597); that there was no binding contract for the sale of the animals in question, the parties never having been ad idem; and that the plaintiff was entitled to recover the price paid.

Held, also, per Lord O'Brien, L.C.J., and Gibson and Boyd, JJ., diss. Madden, J., that there was evidence of misrepresentation sufficient to sustain an action.

Case stated by the Lord Chief Baron on the hearing of a civil bill appeal.

The following are the material facts as set out in the case:—The case came before the Lord Chief Baron at the Spring Assizes, 1902, for the county of Longford, upon an appeal by the defendant from a decree given by the County Court Judge for £10 damages. The process claimed damages for breach of warranty,

and (by amendment made by the County Court Judge) also for false and fraudulent misrepresentation. It was proved in evidence that the defendant had in his possession an animal of the ox tribe which when looked at from the back appeared to be a heifer, but which looked at from certain other directions appeared to be a bullock. The animal was, in fact, and as the defendant knew, a hermaphrodite. It had teats like those of a heifer, but its urinary organs had the outward appearance of those of a bullock. The defendant sent the animal to the April fair of Barry, in the county of Longford, for sale, together with two other animals, a bullock and a heifer. The three animals were purchased in the fair by the plaintiff, a cattle dealer, at the sum of £10 5s. each. A warranty was not asked for or given. Nothing whatever was actually said at the sale as to the sex of the animals, but the plaintiff bought under the belief that he was buying either a bullock and two heifers, or one heifer and two bullocks. The plaintiff to defendant's knowledge would not have purchased had he known of the malformation of the animal the subject of the cause of action. By a careful and skilled examination by the plaintiff the defect could have been discovered, but in point of fact it was not discovered by the plaintiff until the following day, when he sent a notice or message to the defendant to take the animal back, which the defendant refused to do. The animal, which was in bad health from the time of sale, died in the plaintiff's possession in the month of July following from uræmic poisoning occasioned by the retention of urine the result of swellings and abscess caused by the malformation; and the Lord Chief Baron found as a fact that the death was the direct consequence of such malformation.

The question for the Court was, whether the facts stated constituted evidence sufficient to support any cause of action by the plaintiff against the defendant in respect of the animal. If they did the process was, if necessary, to be deemed amended by stating such cause of action.

Gaussen, for the plaintiff:—

The conduct of the defendant in selling this animal, together with a bullock and a heifer, at a fair where bullocks and heifers are ordinarily sold, was calculated to mislead the plaintiff and amounts to fraud: Hill v. Gray (1); R v. Barnard (2); Schneider v. Heath (3); Kerr on Fraud, 3rd ed., p. 64. Even if this did not amount to fraud, the facts as found by the Lord Chief Baron bring the case within the principle laid down in Smith v. Hughes (4): by Blackburn and Hannen, JJ.

P. Law Smith, for the defendant:—

No deception of any kind was practised by the defendant. Unless there was a special fair for the sale of hermaphrodite cattle what could the defendant do but sell this animal at an ordinary fair? No warranty or representation is implied from the sale being at a fair: Ward v. Hobbs (5). There was no obligation on the defendant to point out the defect: Benjamin on Sales, 4th ed., p. 404. The mere passive acquiescence of the seller in the self-deception of the buyer will not entitle the latter to avoid the contract: Smith v. Hughes (6), per Cockburn, C.J. The maxim caveat emptor applies. The plaintiff was a cattle dealer, and therefore competent to make the “careful and skilled examination” mentioned by the Lord Chief Baron. The findings here as to the mental state of the parties are not sufficient to bring the case within the doctrine of Smith v. Hughes (4).

Cur. adv. vult.

Gaussen, for the plaintiff:—

P. Law Smith, for the defendant:—

Lord O'Brien, L.C.J.:—

This case, which has been stated for our determination by my Lord Chief Baron, is certainly a strange one. It has been said that so many cases have been decided in the course of the administration of the law that it is a cause of wonder that any remain for decision. However, such is the complexity and ever-changing nature of human transactions that new facts or new combinations of fact will continue to present themselves, and that new questions, arising on those facts or combinations of facts...