Newman (Née Prince) v Marks (Née Parris) and Leros Ltd (Trading as Sorrel Stables)

CourtRoyal Court
JudgeTomes, Deputy Bailiff and Jurats Picot and Myles:
Judgment Date13 May 1986
Date13 May 1986
Tomes, Deputy Bailiff and Jurats Picot and Myles:

F.J. Benest for the plaintiff;

G. Le V. Fiott for the defendants.

Cases cited:

(1) Bentley (Dick) Prods. Ltd. v. Smith (Harold) (Motors) Ltd., [1965] 1 W.L.R. 623; [1965] 2 All E.R. 65; (1965), 109 Sol. Jo. 329, distinguished.

(2) Buchanan v. Parnshaw (1788), 2 Term Rep. 745; 100 E.R. 401.

(3) Channel Hotels & Ppties. Ltd. v. Rice, 1977 J.J. 111.

(4) Esso Petroleum Co. Ltd. v. Mardon, [1976] Q.B. 801; [1976] 2 All E.R. 5; [1976] 2 Lloyd's Rep. 305; (1976), 120 Sol. Jo. 131, distinguished.

(5) Kwanza Hotels Ltd. v. Sogeo Co. Ltd., 1981 J.J. 59; on appeal, 1983 J.J. 105, dicta of Ereaut, Bailiff applied.

(6) McIlroy v. Hustler, 1969 J.J. 1181.

(7) Scarfe v. Walton, 1964 J.J. 387.

Texts cited:

Dalloz, Rpertoire, vol. 44, Pt. 1, Vices Rdhibitoires, para. 213, at 92 (1863).

Domat, Loix Civiles, vol. 1, Du Contrat de Vente, sect. XI, para. 3, at 48; para. 11, at 49 (1745).

Contractmisrepresentationrelianceno action for innocent or negligent misrepresentation unless representation intended to be relied upon and in fact relied upon by party to whom made

Contractconditions and warrantieswarrantiesstatement amounts to warranty if intended to induce contract and in fact does sointention inferred if representor has special knowledge and statement made for purpose of inducing representee to enter contract

Sale of Goodsdefective goodsdiscoverable defectsno action in respect of defects discoverable by purchaser on reasonably careful inquiry

The plaintiff sought the rescission of a contract made with the first defendant for the purchase of a horse or, alternatively, damages for misrepresentation or breach of warranty.

The first defendant, the owner of the second defendant stables, advertised for sale a horse, stating its age to be 13 years and ascribing to it certain desirable qualities, in particular, that it was a "super schoolmaster." The plaintiff, who had ridden the horse at the stables in the past, wished to continue to ride it and, after some discussion, during which the plaintiff allegedly stated that she needed a schoolmaster for five years and the defendant allegedly advised that the horse might be older than the stated age and that the plaintiff should seek a professional opinion, the plaintiff purchased the horse, with a quantity of tack, without having the animal vetted. Some months after the purchase, the plaintiff became disenchanted with the horse and, upon trying to resell it, discovered that it was about three years older than the defendant had represented. The plaintiff asked the defendant to take the horse back and, upon her refusal, brought the present proceedings.

The plaintiff submitted, inter alia, that, although the horse was able to act as a schoolmaster in the short term, it would be unable to work for a full five years as she had originally intended and was, by reason of its age, a much less valuable animal and, therefore, (a) the contract should be set aside as having been entered into in reliance on a material misrepresentation as to the horse's correct age and restitution should be ordered; (b) alternatively, she should be awarded damages on the grounds that the defendant was in breach of a warranty as to the horse's age, which could be inferred from the defendant's express statement, coupled with the fact that she was, due to her greater experience with horses, in a better position than the plaintiff to know its true age; (c) alternatively, the defendant was in breach of a warranty that the statement as to age had been made with reasonable care, when in fact, by failing to keep adequate records at the stables, the defendant had not taken such care; and (d) the plaintiff should not be denied recovery for having been at fault in failing to have the horse vetted, since she had no idea that there was any doubt as to the horse's age and she denied having been advised to have it vetted.

The first defendant submitted that the contract should not be set aside nor should damages be awarded since (a) the statement that the horse was 13 years of age did not amount to a warranty because the defendant had said at the time of the sale that it might have been older and, in another advertisement, which the plaintiff had seen, the horse was described simply as "aged"; (b) in any case, the plaintiff had not relied on the representation in entering into the contract since her principal requirement was for a schoolmasterit was well known that many schoolmaster horses were at their best when over 13 years, its age was only a minor consideration, and her mind was so set on the purchase that she needed no inducement; and, (c) in the horse trade, in which it was customary for a purchaser to arrange to have a horse vetted, the principle of caveat emptor applied so that a vendor was not liable for defects in goods which could reasonably have been discovered by the purchaser; since vetting would have revealed the horse's true age, the plaintiff was barred from recovery by her failure to have the horse inspected.

Held, dismissing the action:

(1) Since the plaintiff had failed to show that the representation as to the horse's age had been intended to induce her to enter into the contract and that she had in fact relied upon it, it was not open to her to claim either rescission for innocent misrepresentation or damages for negligent misrepresentation, whether the latter were framed as an action in tort or contract (page 351, lines 15-33; page 357, lines 34-41).

(2) The statement of the horse's age did not amount to a warranty for breach of which damages might be awarded since it could not be inferred from the facts that the defendant had had an intention that it should constitute such a warranty: such an intention had never been clearly manifested and could not be inferred simply from the fact that the defendant, as vendor and as a person experienced in horse-dealing, was in a better position than the plaintiff to discover the true age of the horse (page 354, lines 23-25; page 356, lines 4-16).

(3) Moreover, the plaintiff could not now complain about a defect in the subject-matter of the sale, such as the horse's age, which she could have discovered had she exercised that degree of care which could reasonably have been expected of a prudent purchaser. Her failure to have the horse vetted, particularly after she had been warned by the defendant that the stated age might be an under estimate, was a sufficient lack of care to bar her from seeking relief. Her action would therefore be dismissed (page 358, lines 1-21).

TOMES, DEPUTY BAILIFF: This action arises from the purchase by the plaintiff, on March 12th, 1983, from the first defendant, the proprietress of Sorrell Stables, at Mont Fallu, in the Parish of St. Peter, of a skewbald mare named "Coffee Royale" ("Coffee") for the sum of 800, together with tack for the said horse to the value of 552. Although the first defendant is a director and beneficial owner of the second defendant it was admitted in the answer to the plaintiff's Order of Justice that the first defendant sold the horse and tack; thus the plaintiff sought redress against the first defendant alone and the hearing of the action proceeded on that basis. We refer to the first defendant, therefore, as "the defendant."

Coffee had been advertised for sale on the notice board at Sorrel Stables in the following terms: "Coffee Royale. 14.2 skewbald mare. 13 years. Super schoolmaster. Perfect to handle, lovely jump, will teach novice rider." Another card was exhibited in the office of Sorrel Stables, listing the several horses that were for sale, the relevant entry of which read: "Coffee Royale.

Skewbald mare 14.2. Aged."

The Order of Justice brought by the plaintiff alleged misrepresentation and breach of warranty, relying on an allegation that the defendant orally represented to the plaintiff and thereby warranted that the horse was: (a) 13 years of age; (b) a schoolmaster; (c) safe and sound in all respects; and (d) fit for the purpose for which the plaintiff wanted it. The alleged purpose for which the plaintiff required the horse was that she wanted a schoolmaster for at least five years until her own colt was ready to be broken and compete and that as the plaintiff was a beginner the horse should be suitable for this purpose and safe and sound in all respects. The Order of Justice claimed that the representations and warranties were fortified by the terms of the advertisement on the notice board at Sorrel Stables and that, in reliance on the said representations and warranties made by the defendant and contained in the said advertisement, and acting on the faith and truth of the facts stated, the plaintiff was induced to and did enter into the contract of sale and purchase with the defendant. The plaintiff's Order of Justice further alleged that each of the representations made by the defendant were untrue and that the defendant was in breach of the said warranties. The plaintiff sought the rescission of the contract and the immediate return of the sum of 1,352 in exchange for which she would return the horse together with the tack purchased or, in the alternative, damages for the misrepresentation and breach of warranty.

The court heard evidence at considerable length over three days on March 3rd, 4th and 5th, 1986 and again on March 12th.

When the court re-convened on March 13th Mr. Benest conceded, very properly and, in our view, somewhat belatedly, that the plaintiff could not prove the alleged misrepresentations concerning the qualities of Coffee other than that relating to age and that the trial should now proceed only upon the alleged breach of warranty as to Coffee's age. This makes it unnecessary for us to review a great deal of the evidence that we heard over a period of four days and we go on to consider only the alleged misrepresentation and warranty as to Coffee's age. The evidence as to...

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