Schawel v Reade

• Jurisdiction: Ireland
• Judge: Appeal.,H. L.
• Judgment Date: 18 October 1912
• Docket Number: (1910. No. 10337.)
• Court: King's Bench Division (Ireland)
• Date: 18 October 1912

Schawel

and

Reade (1).

Appeal.

H. L.

(1910. No. 10337.)

CASES

DETERMINED BY

THE KING'S BENCH DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL,

AND BY

THE COURT FOR CROWN CASES RESERVED.

1913.

Sale — Horse purchased for stud purposes — Verbal representation by seller of soundness — Express warranty — Form of question left to jury.

Held, by the House of Lords, reversing the judgment of the Court of Appeal, that the words deposed to by the plaintiff as having been used by the defendant constituted an express warranty of the soundness of the horse; and that although the word “warrant” or “warranty” did not appear in the question submitted to the jury, that question, especially taken in connexion with the Judge's charge, presented for the consideration of the jury all the elements of what constituted a warranty, and that their answer to it in the affirmative, showing that they believed the plaintiff's evidence, was a clear finding of an express warranty.

Appeal by the defendant from the order of the King's Bench Division (Palles, C.B., and Gibson and Boyd, JJ.), dated the 16th November, 1911, whereby his motion to enter judgment for him or for a new trial was refused.

The action was brought to recover damages for loss sustained by the plaintiff in the purchase from the defendant of a stallion called “Mallow Man.”

The statement of claim alleged (a) an express warranty by the defendant that the horse was sound, and free from hereditary disease; (b) an implied warranty by the defendant to that effect; (c) false representation by the defendant to that effect: and alleged that the horse was unsound, and suffered from a cataract. The statement of defence traversed these allegations, and further alleged that, as far as the defendant knew or believed, the horse was not suffering from cataract or any hereditary disease, infirmity, or unsoundness—that the horse was sold as he stood, subject only to inspection, and that cataract is a patent defect, discoverable by inspection, and that the plaintiff accepted and paid for and took delivery of the horse after such inspection. The plaintiff joined issue.

The action was tried before Lord O'Brien, L.C.J., and a special jury in Dublin on the 4th, 5th, and 8th May, 1911.

On the occasion of the purchase of “Mallow Man” the plaintiff was looking out for stallions for stud purposes for the Austrian Government, and having heard that the defendant, a horse dealer, at Carnew, county Wexford, had a couple for sale, went to that place, and saw the defendant, with whom he had been dealing for twenty years, and in whom he placed much confidence, never employing a veterinary surgeon in his purchases.

Plaintiff's visit was on the 22nd March, 1910. His evidence as to this was as follows:—

“The horses were pulled out. I think there were four. Two were sent away at once. I did not care for them. We looked at the remaining two, ‘Mallow Man’ and a chestnut horse. A little later I said I did not want the chestnut. The chestnut was sent away, and ‘Mallow Man’ left there alone. I walked up to him and looked at him. Defendant said, ‘You need not look for anything; the horse is perfectly sound. If there was any thing the matter with the horse, I should tell you.’ That was all.” Plaintiff remained that night at Carnew, and saw the horse again the next day, when he said that for the purpose of getting an export certificate the horse should be examined by a veterinary surgeon, whom he left it to the defendant to select, and Mr. Walsh, V.S., of Carlow, was selected. The plaintiff explained that this was done solely for the purposes of export and not because he had lost confidence in the defendant.

A few days afterwards the defendant dined with the plaintiff at the Shelbourne Hotel, Dublin. When they were going into dinner, plaintiff said, “We won't go in and talk about the horse at the dinner; you must make the bargain here; will you accept £350?” The defendant said, “All right, I'll take your price.” The plaintiff explained that it would be necessary to export the horse to the authorities in Vienna, and that the bargain should be confirmed by them before the sale was completed, and the horse was not actually bought until the 16th April.

When the horse arrived at Vienna, he was examined by Dr. Jaroshe, a veterinary surgeon at Chorostkow, Galicia. He found the horse suffering from inflammation of the eye, called iridio-chorisiditis recidiva equorum, commonly called moon-blindness because it recurs once a mouth. Cataract is a direct result of moon-blindness. Dr. Jaroshe said the disease must have existed on the 22nd March, 1910, although not perhaps visible to an ordinary man. When Jaroshe examined the horse, it was chronic; he also stated that it was an hereditary disease. As a result of this examination, which was confirmed by two Viennese experts, the horse was rejected by the Austrian authorities, and sent back to Ireland. The defendant refused to take him back; and he was resold for £40 by auction at Sewell's, on notice to defendant.

The above evidence, given by and on behalf of the plaintiff, will be sufficient to enable the judgments to be understood on the only point with which this report is conversant, namely, the way in which the question of express warranty was submitted to the jury by the Lord Chief Justice.

It is right to add, however, that the plaintiff's account was not borne out by Mr. Keenan, who was present when the horse was inspected on the 22nd March, and was contradicted by the defendant and his stud-groom. Both the latter deposed that the horse was carefully examined by the defendant on the 23rd. Mr. Aidan Walsh was the veterinary surgeon on whose certificate the transport order was obtained. It was dated the 24th March, 1910, and was as follows:— “I have this day examined bay thoroughbred. The animal is, in my opinion, free from hereditary disease, and sound for stud purposes.” A great body of expert evidence was given as to the ophthalmia. Witnesses for the defendant gave it as their opinion that it was the result of an accident, and not hereditary. All seemed agreed, however, that, from whatever cause it arose, it existed on the 22nd March, whether discernible or not.

At the close of the defendant's case, the Lord Chief Justice said that he would leave to the jury the questions:—

I. Did the defendant warrant the horse?

II. Did he assure the plaintiff that the horse was fit for stud purposes?

III. Was the defendant guilty of fraud?

Mr. Sullivan, K.C., for the defendant, asked His Lordship to leave to the jury the questions: (a) Did the defendant warrant the horse sound? or (b) Did the defendant represent the horse as sound to his knowledge? (c) Was the horse in fact unsound for stud purposes? (d) Was the horse at the time of the sale unsound to defendant's knowledge?

In the course of his charge to the jury, after referring to the question of fraud (upon which His Lordship, without directing, charged in favour of the defendant), His Lordship said, “There are two other questions that will make Mr. Reade responsible if they are decided against him. The first question you have to try is, Did the defendant at the time of the sale represent to the plaintiff, in order that plaintiff might purchase the horse, that the horse was fit for stud purposes? That is plain enough. Did he make any representation to him that the horse was fit for stud purposes as sound? If you believe Mr. Schawel, he did.” After commenting on the evidence of Schawel, Reade, and his stud-groom, His Lordship continued, “There was direct contradiction. Which of them do you believe? … Did the defendant at the time of the sale represent to the plaintiff, in order that the plaintiff might purchase the horse, that the horse was fit for stud purposes; and did the plaintiff act upon that representation in the purchase of the horse? If the defendant did not represent it in order that the plaintiff might purchase the horse, what is the use of it at all?.… It is for you to say whether you will answer that question—Yes or No. Was the horse fit for stud purposes? You heard all that. If there was any hereditary disease, he is not fit for stud purposes.”

The following are the questions which were left in the issue paper to the jury, and their answers to the same:—

I. Did the defendant at the time of the sale represent to the plaintiff, in order that the plaintiff might purchase the horse, that the horse was fit for stud purposes, and did the plaintiff act upon that representation in the purchase of the horse (1)? Answer—Yes.

II. Was the horse fit for stud purposes at the time of sale? Answer—No.

III. Was the defendant guilty of fraud? Answer—No.

IV. What damages, if any? Answer— £350.

The learned Lord Chief Justice entered judgment for the plaintiff for £350 with costs.

In his notice of motion to enter judgement for him, or for

a new trial, the defendant relied, inter alia, on the following grounds:—

(d) That the evidence established that the sale was a sale upon inspection, and subject to a veterinary surgeon's certificate, and not a sale on a warranty.

(e) That the representation alleged prior to the negotiations for sale was not a warranty in law.

(g) That the warranty (if any) would not in law apply to the defect alleged, which was discoverable by the veterinary examination, stipulated and made at plaintiff's instance.

A. M. Sullivan, K.C. (with him, D. S. Henry, K.C., and Mahony), for the appellant:—

The question of warranty was not left to the jury, and, in the absence of their finding on it, the Court cannot decide it: Royal Mail Steam Packet Co. v. George and Branday (1). That was a decision of the Privy Council, on section 48 of the Jamaica Code of Civil Procedure analogous to the English Order XL, Rule 10, and the corresponding Irish Rule. Lord Hobhouse, in delivering the unanimous judgment of the Privy Council, followed the judgment of the Court of Appeal in...