by R S Surtees
“The contract being broken, the defendant must give back the money, and the plaintiff must return the horse; but unless he has previously tendered him he cannot recover for the keep, because it was not the defendant’s fault that the plaintiff kept him.”
I must, however, add, that the law upon this point is not decided.
In the trial at the Summer Assizes at Bristol, in 1826, of M’Kenzie against Hancock, Mr. Justice Littledale said —
Notwithstanding a contrary opinion prevails, I think the plaintiff is entitled to recover the expenses for such a period only, as under all the circumstances of the case the Jury may fairly think a reasonable time for re-selling the horse.”
This opinion seems open to objection, because the purchaser would naturally get rid of the horse as soon as possible without much regard to price; and the defendant would frequently lose much more by the sale than by persisting in his obstinacy in not taking the horse back and paying his expenses.
Besides it opens a door to endless litigation.
CHAP. IV.
THERE ARE ONE or two points relating to horses, which, though not of common occurrence, it still may be as well to know.
DEALING ON SUNDAY
Is one. All dealings and contracts which are made on a Sunday by persons in their ordinary calling are declared void by the Stat. 29 Charles II. c. 7, s. 2, and, independent of the illegality of the Act, dealing on that day is not a very respectable occupation: however, if the person who buys or sells on a Sunday is not thereby following his ordinary calling, the law will not set aside the contract.
Lord Mansfield said, in the case of Drury against Defontaine, where an objection was made that the contract for sale took place on a Sunday —
“The bargaining and selling horses on a Sunday is certainly a very indecent thing, and what no religious person would do; but we cannot discover that the law has gone so far as to say that every contract made on a Sunday shall be void, although under these penal Statutes, if any man in the exercise of his ordinary calling shall make a contract on a Sunday, that contract would be void.”
And again, in Bloxsome against Williams, where Bloxsome made a bargain with Williams, who was a horse-dealer (but of which fact he was ignorant at the time), for a horse on a Sunday, which was warranted, but proved unsound, it was held by Mr. Justice Bailey, that Bloxsome having no knowledge that Williams was a horse-dealer, and exercising his ordinary calling on a Sunday, had not been guilty of any breach of the law, and therefore entitled to recover back the price of the horse on the action for the breach of the warranty.
In Fennell against Ridler, it was laid down that the Statute I before mentioned “for the better observation of the Lord’s Day” applies to private as well as public conduct; and that a horse-dealer cannot maintain an action upon a private contract for the sale and warranty of a horse if made on a Sunday.
SELLING HORSES BY SERVANTS OR AGENTS
Is father a dangerous business; and sellers ought to be very cautious what instructions they give; and the best way is to reduce them into writing, so that they can be shewn to the purchaser, which will prevent the alteration or modification of the terms by the servant.
The Judges are inclined to infer that a servant being employed to sell a horse has an implied authority to warrant him.
By private contract this perhaps is good, because it is generally supposed that horses sold by this means are sound, and will bear scrutinizing; but, were the rule to be extended to sales by auction, great injustice might be done.
In the case of Alexander against Gibson, where the action was brought upon a warranty given by Gibson’s servant, Lord Ellenborough said —
“If the servant was authorised to sell the horse, and to receive the stipulated price, I think he was incidentally authorised to give a warranty of soundness. It is now most usual on the sale of horses to require a warranty, and the agent who is employed to sell, when he warrants the horse may fairly be presumed to be acting within the scope of his authority. This is the common and usual manner in which the business is done, and the agent must be taken to be vested with power to transact the business with which he is intrusted in the common and usual manner.
“I am of opinion, therefore, that if the defendant’s servant warranted this horse to be sound, the defendant is bound by the warranty.”
Mr. Justice Bailey, in a subsequent case, went farther than Lord Ellenborough, and said, in Pickering against Busk —
“If the servant of a horse-dealer, with express directions not to warrant, does warrant, the master is bound, because the servant, having a general authority to sell, is in a condition to warrant, and the master has not notified to the world that the general authority is circumscribed.”
However, in an analogous case of Fenn against Harrison, where the above opinions were quoted — Lord Kenyon doubted the propriety of a master’s being bound by his servant’s warranty, and said he thought the maxim of “respondeat superior” applied.
In Helyear against Hawke, Lord Ellenborough said —
“I think the master having intrusted the servant to sell, he is intrusted to do all that he can to effectuate the sale; and if he does exceed his authority in so doing, he binds his master.”
The circumstances of the case were these.
The horse had been inserted in Tatter sail’s catalogue, but was not brought to the hammer, and Helyear afterwards, having the catalogue in his hand, inquired of Hawke’s groom, who had the care of the horse, if the horse was but seven years old, and if free from vice; to which the latter replied “Yes, if you have him.”
And upon an objection to this evidence being received to bind the master, Lord Ellenborough said —
“If the servant is sent with the horse by his master, and the horse is offered for sale, I think he thereby becomes the accredited agent of his master, and what he has said at the time of sale, as part of the transaction of selling, respecting the horse, is evidence; but an acknowledgment to that effect made at another time is not so: it must be confined to the time of the actual sale, when he was acting for his master.”
It afterwards appeared that nothing had been said about the price; and his Lordship was of opinion that it could not be deemed a complete contract for the sale of the horse, and would not support a warranty at all.
However, who shall decide when Judges disagree? therefore I arrive at my old position; viz that the best way is to write down the instructions if the master either cannot, or does not choose to be referred to; but in the latter case, perhaps Messrs. Tattersall’s public auction -would answer his purpose better than running any risks.
LIVERY STABLES.
In a trial before Lord Wynford (when Chief Justice of the Common Pleas), of Wallace against Woodgate, the law relative to a livery-stable keeper’s lien upon the horses standing in his stables for the expenses of their keep was laid down.
Woodgate was a horse-dealer, and had sold Wallace three horses, and taken his bills of exchange in payment.
As well as being a horse-dealer Woodgate kept a livery-stable, into which (out of the sale stable) he removed the horses in question; but there was no evidence to shew that there was any agreement made that they should remain there until their keep was paid for.
Wallace was in the habit of using the horses whilst they were kept by Woodgate, and one day, under pretence of using them, took them entirely away to another stable.
Woodgate, finding out where they had been removed to, in the absence of Wallace repossessed himself of them, upon which Wallace brought his action; and the defence was that Woodgate had a right to retain the horses until the keep was paid for, he having a lien by agreement.
The Chief Justice, in summing up, told the Jury that a livery-stable-keeper had not by law a lien for the keep of horses, unless by special agreement with the owner of them; and that if they were satisfied that there was an agreement to that effect, and that Wallace had removed the horses to defraud Woodgate of his lien, then their verdict must b
e for Woodgate, which they accordingly gave.
An innkeeper, who is obliged to take a horse in to stand at livery, though neither the owner nor his servant lodge in the house, is therefore entitled by law to detain the horse until satisfied for his keep: and if he be stolen the innkeeper is liable to an action for his value.
With certain exceptions in favour of trade, the general rule of law is, that all things upon the premises are liable to the landlord’s distress for rent, whether they belong to the tenant or a stranger.
Consequently all horses standing at livery are liable to be seized for the landlord’s rent.
In London this frequently happens: it is therefore desirable, where a doubt may exist as to the solvency of the parties, either to inquire of the landlord if the rent be in arrear, or to examine the receipts in the possession of the tenant.
RESALE BY A PURCHASER, WITH A WARRANTY.
Where a purchaser, relying upon his warranty, sells the horse to another, giving a similar warranty to the one he received, and upon its failing an action is brought against him, and he gives notice of such failure and action to the original seller, who gives no direction for defending or abandoning the cause, the costs sustained thereby will be added to the amount of the original damage accrued by reason of the false warranty, and the second seller will be entitled to recover the sum from the original vendor.
It must, however, be proved that the horse was unsound at the time of the first sale.
SMITHS.
Where a horse is delivered to a smith to shoe, and he injures him, an action can be brought. So if he delivers him to another smith, the owner may have his action against the latter. And it is said that an action lies for not shoeing according to promise if the horse is injured from the want thereof.
VETERINARY SURGEONS.
Formerly it was understood, if a veterinary surgeon undertook to cure a horse of any malady, and through negligence or unskilful treatment he died or was injured, that the owner could recover the value of the horse in an action against the surgeon without proving any express agreement, on the ground that whoever undertakes a duty is bound to exercise proper and competent skill in his occupation.
This doctrine, I am informed by Professor Coleman, was reversed in an action wherein he was a witness, and bore testimony to gross mismanagement on the part of a veterinary surgeon; notwithstanding which the Jury, under the direction of the Judge, returned a verdict for the defendant.
CHAP. V.
SALES BY AUCTION.
As the Judges have gradually become more strict in their constructions of general warranties of soundness, and qualified ones do not answer the purpose of sellers as they necessarily diminish the prices obtained; sales by public auction (where the doctrine of “caveat emptor”— “let the buyer beware” — well applies) have gained ground.
While they embrace all the advantages of sales by private contract, they get rid of the difficulty of being obliged to specify all defects, and moreover the time that shall be considered a reasonable trial is more accurately defined.
The owner of a good horse has the same advantage of warranting him sound as he has on a sale by private contract, without incurring the risk of having him returned at the end of five or six weeks, or perhaps as many months (unless indeed it can be proved that the cause of the breach of warranty existed at the time of the sale), while the less fortunate owner of a bad horse puts him up for public competition, and though he may expatiate as largely as ever he likes upon his good points, still (if he does not warrant him) he is not bound to mention any of his imperfections.
There is a species of praise which all sellers are considered at liberty to adopt in disposing of their goods.
In common parlance it is called puffing, and when practised in the selling of horses is termed “chaunting,” or singing their praise.
The rule of the civil law was “simplex commendatio non obligate.” And where the seller merely made use of those expressions which are usual to sellers who praise at random the goods they are desirous to dispose of, the buyer, who ought not to have relied upon such vague expressions, could not procure the sale to be dissolved upon any such pretext.
The same rule prevails in our law, and has received a very lax construction in favour of sellers.
Unless “chaunting” be coupled with fraud or more particular terms of warranty, the words which are made use of cannot be considered otherwise than as of unmeaning import, and cannot be made the foundation of an action.
Though puffing or chaunting is sometimes practised in dealers’ yards, it is more generally considered to be the attribute of sales by auction, where a knot of persons getting together continue to praise a horse in the hearing of a stranger, who is thereby perhaps induced to become the purchaser.
If a seller affirms that his horse is of a certain value, it is deemed to be the purchaser’s own folly if he believes him, and it turns out to be untrue; besides, value consists in judgment and estimation, in which many men differ.
As sales by auction have gradually advanced in public estimation, so likewise the number of competitors for public favour have increased, and sales of horses by auction are to be found in all parts of the metropolis, from the aristocratic yard of the Messrs. Tattersall at Hyde Park Corner to the humble yet useful establishment of Mr. Dixon in the Barbican, not forgetting the princely Bazaar of Mr. George Young in King-street, Portman-square.
As all these establishments are conducted pretty much on the same principle, and the conditions of sale are nearly, if not exactly, the same, I shall only insert those of Messrs. Tattersall and Mr, Young.
CONDITIONS
Of every Sale by Auction and Private Contract at Hyde Park Corner.
1. The highest bidder to be the purchaser; and if any dispute arise between any two or more bidders, the lot so disputed shall be immediately put up again, and re-sold.
2. No person to advance less than 5s.; above 51.
10s., and so on in proportion.
3. The purchasers to give in their names and place of abode (if required), and to pay down five shillings in the pound (if required), as earnest and in part payment; in default of which the lot so purchased may be immediately put up again and re-sold, if the auctioneer shall think fit.
4. The lots to be taken away within one day after the sale is ended at the buyer’s expense, and the remainder of the purchase money to be absolutely paid before the delivery of the lot.
5. Upon failure of complying with the above conditions, the money deposited in part of payment shall be forfeited to the owner of the lot, he paying there out all just expenses; and the lot shall be re-sold by public auction or private sale, and the deficiency (if any) attending such re-sale shall be immediately made good by the defaulter at this sale.
6. If any person shall purchase a lot, and not pay for it in the time limited by the 4th condition, nothing contained in the 5th condition shall prevent the auctioneer or owner of the lot from compelling the purchaser to pay for it, if the auctioneer or seller shall think fit.
7. The vendor shall be entitled to receive the purchase money of each lot not warranted sound on the third day from the sale day; and all horses sold as sound on the Monday shall be paid for on the Friday; and all horses sold as sound on the Thursday shall be paid for on the Tuesday, provided the auctioneer shall have received the purchase money, or delivered the lot out of his custody, but not before.
8. The purchaser of any lot warranted sound, who shall conceive the same to be unsound, shall return the same on or before the evening of the second day from the sale: otherwise the same shall be deemed sound, and the purchaser obliged to keep the lot with all faults.
9. The King’s Tax shall be paid by the seller.
10. All horses and carriages, &c brought to this Repository for sale, and sold by private contract, either by Messrs. Tattersall or the owner, or any one acting as the agent for the owner of such horses, carriages, &c shall pay the usual commission; and no person shall have a right
to take away his horses, carriages, &c until the commission, keep, or other expenses are paid whether the same have been sold by public auction or private contract, or are not sold.
11. All horses, carriages, &c advertised by Messrs. Tattersall (though not upon the premises at the time of sale), either by private contract or public auction, shall pay the usual commission.
Lastly. The conditions of sale are —
If sold by public auction, 2s in the pound. If by private contract, 1s in the pound. And if not sold, 3s for putting up. N. B. No money paid without a written order.
The Monday sales continue throughout the year, and at particular times (generally about the height of the London season) there is also a sale on Thursdays; though this day, except for large and well-known studs, does not answer so well.
For the Monday’s sale it is necessary that the horses should be sent on the preceding Friday, or Saturday morning at latest, for the catalogues are printed on the latter day: and at the time of sending, the horses must be entered in the book kept in the office for that purpose at the right hand side of the yard, and such pedigree or other description given as the owner wishes to have inserted in the catalogue.
The casual observer would consider one stable as good as another; but persons acquainted with the yard say, that at Messrs. Tattersall’s (where the company for the most part consists of fashionable men who seldom rise till noon) it is a matter of no small importance to secure a favorable position in the list.
The second seven-stall stable I believe is considered a fair one, but the favorites are the twelve and eight-stalled ones.
Horses in the second seven-stall stable come out about three o’clock in the afternoon, the first lot in it generally being between thirty or forty in the catalogue (depending upon whether the horses in boxes are brought out first or not): then comes the twelve, and after it the eight-stall stable, which brings the day on to about four o’clock in the afternoon, when there is generally the fullest attendance in the yard.
