Complete Works of R S Surtees

by R S Surtees

  Upon the whole, however, it seems to be clearly settled that a sale cannot be supported where the purchaser was the only real bidder, and public notice was not given of the owner’s intention to bid; but that public notice is not essential to the validity of a sale if there be a contest between real bidders after the biddings on the part of the owner have ceased. And it is conceived, that if there were real bidders at the sale it would be supported, although the bidding immediately preceding that of the purchaser was fictitious.

  Where public notice has been given, the sale will be binding on the purchaser although there was no contest between real bidders, but only the purchaser and the person employed to bid bid against each other. If, however, the particulars, or advertisement, or even the auctioneer, state (as is frequently the case) that the horse is to be sold without reserve, it seems clear that the sale would be void against the purchaser if any person were employed as a puffer and actually bid at the sale.

  I cannot say that I agree with Lord Rosslyn, that the bidding of one man has not its influence on the conduct of another.

  If I see a person who I know to be a good judge of a horse examining one particularly, and I afterwards find him bidding for the horse at the hammer, I naturally conclude that he is worth looking after, and I perhaps bid a few pounds more than I otherwise intended merely on the strength of this circumstance: though I admit that this sort of influence is more predominant at horse sales than sales where the object of competition may be land, houses, or other goods, with which all persons are more or less conversant, and have better opportunities of becoming acquainted with the particulars.

  We will now proceed to consider the horse as having been at the hammer, and either sold to a real purchaser, or bought in by the auctioneer or the owner’s bidding.

  If sold to a purchaser, the clause No. 3 of Messrs. Tattersall’s, and No. 5 of Mr. Young’s conditions, may be enforced if the auctioneer is unacquainted with the party, else he enters his name in the book as the purchaser; and on going to the office and paying the money he receives an order in this form — Deliver lot 49 — which enables him to take the horse away immediately.

  The price to be paid is the price bid at the hammer (for instance, one hundred guineas for one hundred guineas bid, the biddings being in guineas), the seller paying the auction duty, commission, and whatever is due for the horse’s keep.

  The seller is done for the day; and, on the day mentioned in the seventh of Messrs, Tattersall’s and fourteenth of Mr. Young’s conditions of sale, may either go himself or send a person with a written order to receive the money, which will be paid, deducting five pounds per cent, for auction duty, five pounds per cent, for commission, and three shillings and sixpence a night for the horse’s keep.

  The owner, however, need not despair of selling his horse because he sees him return from the hammer without having reached the price he is put in at.

  The dealers in the yards are very sagacious and inquisitive, and soon learn what horses are really for sale, and what are merely sent in to assist in the selling of others; and it not unfrequently happens that they make overtures through the grooms for the purchase of the horse before he goes up to the hammer.

  As they will take care not to offer what they know the horse to be worth, should there be other purchasers in the yard, I believe the mode most recommended is to let the horse take his turn at the hammer, and run the chance of meeting with a person who wants a horse for use, and who can afford to give more than a dealer, who calculates the profit to be realised on a re-sale, and not the services of the animal.

  It not unfrequently happens that dealers are sent to purchase horses for gentlemen. These are what are called guinea-men — their nominal fee being a guinea on each purchase; but the real one is just what they can manage to make by the bargain.

  These men are a great nuisance, inasmuch as they prevent gentlemen dealing together; and they have a most peculiar knack of depreciating the value of a horse in the hands of a seller, and extolling the same to a purchaser.

  Dealers should always be the dernier ressort; and there are very few horses that are not worth a something to some one of the trade; but the seller must exercise his own discretion, regulated by the properties of the animal to whom he offers it.

  Mere hacks are easily disposed of to dealers, especially those about or above fifteen hands and a half high; but a man would not take a hunter to Mr. Dixon’s, in the Barbican, any more than he would a thorough-bred horse to Mr. Morris’s, in St. Martin’s-lane.

  These public sales are the central point for dealers; and if one of them has bid for a horse at the hammer, he is always sure to come to the owner afterwards to treat for him.

  Where they have a purchaser in view, some of them will treat very fairly; but there is nothing like relying upon Mr. Taplin’s advice, and dealing with an honest man as one would with a rogue; and there is no fear of their forgetting to remind the seller that by disposing of his horse by private contract he will save the five per cent, auction duty.

  This will enable the owner to sell the horse a few pounds cheaper; and most people, when they are dissatisfied with their horses, will sooner part with them at almost any price than keep them; and to such this may be a convenient mode: but I advise them on no account whatever to warrant a horse to a dealer.

  The want of it will not affect its value at all; because dealers are far too sharp to be imposed upon by gentlemen; and if a horse has any injury or infirmity about him, they will not fail to discover and point it out, and also rely upon it for a reduction of price: and even if he is perfectly sound, there are some who would not scruple to make him otherwise, and return him on the breach of warranty if they found he did not answer their purpose.

  If the bargain be closed with a dealer or any other person, the seller must go to the office and transfer the horse into the name of the purchaser; and on sending to the office, in like manner as on a sale by auction, he will receive his money, deducting the commission of five per cent, and the expenses as before mentioned.

  The paying the agent five per cent, for doing what the owner has done himself may appear an anomaly; but the fact is, that the charge is made for guarantying the payment of the money, and not for the mere trouble of offering the horse for sale.

  Should the horse not be sold either at the hammer or by contract, a charge of three shillings is made for putting him up.

  I have already stated that it is not the usual custom on sales by auction to warrant the horses sound.

  Looking through any of Messrs. Tattersall or Mr. Young’s lists, it will be seen that the description of their qualifications are frequently given in this manner —

  “A grey gelding, quiet to ride and quiet in harness—” a black pony, rides and draws — or, “a brown gelding, a good roadster and been in harness.”

  These I consider to be an assurance that the horses will do what is specified; and therefore, if I buy a horse with the description of the grey gelding, and find that he cither is not quiet to ride, or will not go in harness, I am entitled to return him on the breach of that warranty within the period specified in the condition.

  By Messrs. Tattersall’s eighth condition of sale it will be seen that the purchaser of any lot warranted sound, who shall conceive the same to be unsound, shall return the horse on or before the evening of the second day from the sale, otherwise he is to be deemed sound, and the purchaser obliged to keep the lot with all faults.

  Thus, therefore, if I purchase a horse on Mon day’s sale under a warranty of soundness, of course I use all expedition in ascertaining the correctness of it; and, if I find any thing the matter with the horse, I return him on or before the Wednesday evening: and so, on a Thursday’s sale, I return him on or before the Saturday evening.

  Messrs. Tattersall’s conditions do not mention any warranty other than that of soundness; but I consider that, if the horse does not answer the warranty as to riding or drawing quietly, he is equally returnable at the time menti
oned in the eighth condition.

  Mr. Young is more specific in his conditions, and No. 13 is made especially to meet the case, CHAP. VI.

  We will now consider the case of a horse which has been sold by auction under a warranty of soundness.

  Although by the conditions of sale the purchaser is bound to return the horse if not found to answer the warranty by a certain day from the sale, after which he is held to be retained, at the risk of the buyer, as to all after-accidents; yet it does not follow, because he has not been able to discover a latent defect or infirmity within such period, that he is not to be allowed to return a horse as unsound which will perhaps be useless in a week.

  As Lord Loughborough said, in the before-mentioned case of Fielder against Starkin —

  “No length of time elapsed after a sale will alter the nature of a contract originally false.”

  And by what code of reasoning shall we adopt this doctrine with respect to sales by private contract, and reject it as applicable to sales by public auction?

  It is, therefore, clear that the buyer can return a horse bought under a warranty of soundness at a public auction at any reasonable, not to say indefinite period, provided he can prove the existence of disease or lameness at the time the purchase was made.

  Were this principle not admitted, the word warranty would become a mere dead letter as applied to sales by public auction, and little or no distinction would exist between a horse purchased with or without one; for though the generality of disorders or infirmities are such as are apparent to the general observer (at least can always be discovered before the expiration of the time allowed for trial), yet not even a professional man can be certain of the non-existence of latent disease.

  It is, therefore, clear that the same law which appertains to warranty on sales by private contract is equally applicable to warranty made on sales by public auction.

  With respect to the age of a horse sold by public auction, it has been held that where a horse was warranted six years old and sound (and one of the conditions of sale was that the purchaser of any warranted horse, who should conceive the same to be unsound, should return him within two days, otherwise he should be deemed sound), the vendor was liable to have him returned after the expiration of the second day, should he prove more than the age specified.

  This was in a case of Buchanan against Parshaw and Lord Kenyon said —

  “The question turns upon the meaning of this condition of sale, and I am of opinion that it must be confined solely to the circumstance of soundness.

  “There is good sense in making such a condition at public sales, because, notwithstanding all the care that can be taken, many accidents may happen to the horse between the time of sale and the time when he may be returned, if no time were limited; but the circumstance of age is not open to the same difficulty.”

  AUCTIONEERS.

  The conditions of sale being publicly exhibited, either on the auctioneer’s box or in the office, but generally in both, it is presumed that all persons attending the sale are conversant with the terms upon which business is transacted, and the law implies a tacit consent on their parts to conform to these terms; and Lord Kenyon said, in a case of Mesnard against Aldridge the auctioneer, where Mesnard brought the action on Aldridge refusing to receive a horse as unsound after the lapse of a second day, that the action could not be supported, and the plaintiff was nonsuited.

  All the further law which it seems necessary for our purpose to know respecting auctioneers is, that they are liable to the seller for the amount of his goods, if he lets them out of his possession without receiving the price of them from the purchaser, which was laid down in an action of Brown against Staton.

  Auctioneers have long been the privileged dealers in flowery metaphors and exaggerated descriptions, but the thing is now carried to such a height as to call loudly for the interference of the Legislature.

  We have all heard of the advertisements of an estate for sale commanding an extensive view over hill and dale, having the landscape varied by a beautiful “hanging wood,” and which, on the purchaser’s taking possession of the house, proved to be a gallows.

  This may be a true story or not; but I can vouch for the truth of a person having been induced to bid ten thousand pounds for an estate, merely because the auctioneer stated it to be worth twenty thousand pounds; and when it was knocked down to him, he said he only bid to give the thing a start, and the actual value was only four thousand pounds.

  Whatever an auctioneer states verbally, relative to the value or advantages of an estate, or anything else, I think should be looked upon as mere verbiage, but I would confine them within some bounds in their printed descriptions.

  Formerly it was a proof of the truth of any thing, however improbable, if it were in print. Allegory itself became real the moment it came forth in type, and a mere supposition in manuscript issued with the dignity of history from the press.

  The March of Intellect has in a manner superseded this doctrine: but there are still many persons who pin their faith to the printer, and are deceived by the specious advertisements of the auctioneers.

  It is not of their verbal or printed puffs that I complain so much, as of the statements they make with the appearance of truth.

  For instance: at a sale of pictures, if I see one stated in the catalogue to be by Vandyke, I may fairly suppose it to be the production of that painter; and yet it appears, by some evidence given in the Court of Chancery very lately, in a cause of Huygh v. Gray, that among picture-dealers the mere adding the name of an artist is only considered to imply that the picture is a copy from one of his, but that the word “ warranted” conveyed an assurance that the picture was an original by the master specified.

  The same way with horses. Some auctioneers do not hesitate to insert in their catalogue, as excellent or superior hunters, horses which have never been in the field, or to give any other description equally fallacious.

  Others again insert horses in their catalogue as the property of persons to whom they never belonged.

  An action was tried very lately at Oxford, where this had been done. It was brought by Mr. Taunton, a solicitor, against Adams, an auctioneer. The circumstances of the case were these: —

  The defendant, an auctioneer at Oxford, was employed by Mr. Sadler, a well-known livery-stable keeper there, to dispose of his stud of horses by auction, as he was about to retire from business. The plaintiff attended the sale, and the defendant having represented all the horses as the genuine property of Mr. Sadler, he was induced to bid for one of them, a bay gelding, and became the purchaser of it at forty-one guineas. A day or two after he had got the animal home, he discovered that it was lame; and on making inquiries, ascertained that it had never, in fact, belonged to Mr. Sadler, but was the property of his brother-in-law, a Mr. Beechy, for whom it had been introduced into the sale along with Mr. Sadler’s horses. The lameness was pronounced to be of such a description as to be incurable; and the plaintiff therefore brought the present action, by which he sought to recover back the money he had paid for the horse, together with the sum it had cost him for its keep, and the veterinary surgeon’s bill, amounting altogether to sixty-two pounds thirteen shillings.

  Mr. Taunton and Mr. Chilton conducted the plaintiff’s case. The foregoing facts having been given in evidence —

  Mr. Serjeant Russell (with whom was Mr. Talfourd) addressed the Jury for the defendant. The Learned Serjeant, after submitting that the action was not maintainable, went on to contend that no deceit had been practised by the defendant; nothing, he observed, was more common in sales by auction than to have some goods of another person put into the catalogue.

  Mr. Justice Bosanquet: And perhaps nothing can be more improper.

  Mr. Serjeant Russell: The horses which the defendant had sold were represented as belonging to a livery-stable keeper at Oxford — a place, as admitted by Mr. Sadler himself, most unlikely to find a good horse in; for they were generally ridden by young gentle
men of the University, who had only one pace, and that was as hard as they could go. The plaintiff had hoped to get a good bar gain, and it had turned out a bad one; but the defendant had practised no deceit, and made no wilful misrepresentation.

  Mr. J. Bosanquet left it to the Jury to say whether or not there had been such a misrepresentation by the defendant as induced the plaintif!’ to bid more for the horse than he would otherwise have done. If they thought that there was, they would find for the plaintiff for such sum as they thought he would have given less than the forty-one guineas which he bid under the defendant’s representation.

  The July found for the plaintiff — damages twenty-eight pounds.

  With respect to the best place for disposing of horses, I believe it is generally considered that a real good one is more likely to meet with a purchaser at Messrs. Tattersall’s than at any other Repository, this being the resort of sportsmen and gentlemen of fortune from all parts of the kingdom; and that sometimes an indifferent horse will bring a large price if the owner is known many people being kind enough to attach to the horse what is in reality the attribute of the rider; but for selling middling-priced horses, Mr. Young’s Bazaar, by uniting the properties of a good livery-stable, with the advantages of a weekly auction on the spot, and the opportunity of selling by private contract every day, possesses advantages which Messrs. Tattersall’s Repository does not.

  The extent of Messrs. T.’s stables not being equal to the number of horses sent, the owner of one who fails to sell him on the Monday cannot rely upon being able to keep him there until the following Monday, or even the Thursday’s sale; but the immense range of stabling at the Bazaar renders any difficulty of this sort very unlikely to happen. At either place the men in the yard will pay every attention to horses who have not grooms sent with them.

  As to purchasers at sales by public auction, I believe a buyer with a fair knowledge of horses is considered to be in a much better situation than any seller; but for a person to go to an auction without any ideas on the subject, or previous acquaintance with the horses, and thinking every person blind except himself, is the height of absurdity.