Scottish Court of Session Decisions

Subject_1 SALE.
Subject_2 DIVISION II.

Sale of Moveables.
Subject_3 SECT. IV.

Lesio ultra duplum. - Sale by sample, - weight, - measure, &c. - Actio redhibitoria et quanti minoris.

Joseph Ralston, Servant to Joseph Allan of St Laurence Chapel,
v.
Thomas Robertson, Tenant in Blackwood

Date: 16 June 1761
Case No. No 65.

Repetition of the price of an unsound horse, recently quarrelled, sustained upon the implied warrandice of the contract. See Nos 68. 70. 71. 72.

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In October 1758, Joseph Ralston was sent by Mr Allan, his master, to a fair in the town of Ayr in order to purchase a couple of horses for him. He there met with Thomas Robertson, the defender, who sold him a horse for L. 8:10:0 Sterling. The price was immediately paid, and the horse delivered; and the pursuer had hardly gone thirty yards with him when he discovered that the horse was racked or slipt in the back, and had also a blemish in one of his eyes. Upon this he immediately insisted, that the defender should take back the horse and repay the price.

This he refused to do, and said, that the horse had got the rack coming over from Ireland in a boat. Upon this Ralston brought a process for repetition of the price against Robertson, before the Sheriff, “who assoilzied the defender, in respect it was not alleged, that he upheld the horse to be sound; and as the faults alleged were not hidden or concealed faults.” Soon after this, the horse was seized and condemned by a sentence of the Justices of Peace of the county, as an Irish horse.

Pleaded for Ralston in an advocation, That the defender certainly knew of the fault, as appeared from his saying that the horse had been racked by coming over in a boat; and therefore it was an act of fraud in him to sell what laboured under any material defect, without giving the least hint of it to the buyer.

But whether the defender knew the defects the horse laboured under or not, the action for repetition of the price was well founded. It is implied in the very nature of every bargain of this kind, that the thing bought is to be free of faults, especially of such faults as occur in the present case, which render the thing sold altogether useless, and which no man would have purchased if he had known of the faults attending it. In all sales, there is an obligation upon the vender, omne vitium abesse; and it is founded in the implied warrandice of the contract, that the seller is to make up to the buyer the loss accruing to him from faults which were unknown, and not under his consideration at the time of the bargain.

2do, The horse appears clearly to be an Irish horse, and was accordingly seized and condemned as such; and therefore the pursuer, who was ignorant of his being an Irish horse, is entitled upon the implied warrandice of the contract to re-payment of the price from the seller; more especially as he knew him, at the time of the bargain, to be an Irish horse, and so was knowingly versans in illicito.

Pleaded for Robertson the defender, That he had bought the horse at the public market only a very little while before he met with the pursuer: That he never offered or undertook to warrant the horse as free from faults, on the contrary, he told the pursuer expressly, that he knew nothing about the horse but what he saw, and could not venture to uphold him, as he had not had him five minutes in his possession; so that it was evident there was no fraud intended, nor any art or deceit practised upon the pursuer.

If the seller had upheld the horse as sound, he would have been liable ex contractu. If he had wilfully deceived or imposed upon the pursuer, he would have been liable ex delicto. But as neither of these was the case, it is not easy to see upon what principle of law re-payment of the price can be demanded, after the bargain was completed on both sides, and the property absolutely transferred.

2do, With respect to the horse being condemned as an Irish horse, the defender did not warrant the horse; and therefore cannot be made liable on the imaginary implied warrandice contended for by the pursuer: Neither is it easy to conceive upon what right or pretence the officers of the revenue could seize the horse above 20 miles from the sea, and after he had been so long in the country; nor does it appear in what shape, or upon what terms, he is said to be condemned. If the pursuer therefore has allowed the horse to be taken from him without any good reason, he has himself alone to blame, and the defender cannot be made liable for it.

It was suggested from the Bench, That when a man sells a horse for full value, there is an implied warrandice, both of soundness and title, nor is there any necessity to prove the knowledge of the seller.

The Lords “found the defender liable to the pursuer in the price of the horse.”

Reporter, Lord Kames. Act. Macqueen. Alt. G. Cockburn. Clerk, Gibson. Fol. Dic. v. 4. p. 255. Fac. Col. No. 38. p. 76.