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Decisions of the Superior Courts of New South Wales, 1788-1899

Henderson v. Colls (1828) NSW Sel Cas (Dowling) 8; [1828] NSWSupC 72

sale of goods, warranty, assumpsit

Supreme Court of New South Wales

Dowling J., 9 September 1828

Source: Dowling, Select Cases, Vol. 2, Archives Office of N.S.W., 2/3462

[pp 76-77]

[Horse a sound price for a horse is not tantamount to a warranty of soundness   There must be either an express warranty of soundness or fraud in the seller in order to maintain an Action for the price of the horse   Q. for the Jury][1 ]


Tuesday 9th September

Dowling J

Civil Side

Henderson v Colls

Assumsit to recover 40£ the price of a horse sold by Plaintiff to Defendant.

Norton opens case.

[p. 77]  Mr William Tavener.  I am a brickmaker I am acquainted with Plaintiff and the Defendant.  I was present at Defendants house on the Liverpool road about 9 or 10 months since.  The Plaintiff and Defendant were together.  I was on my return to Sydney and called in on Defendants house an inkeeper for refreshment and when I went in I found Plaintiff and Defendant sitting together in the parlour.  In course of conversation, they talked of dealing about a horse.  The Plaintiff sold Defendant a horse for the sum of £40.  The Plaintiff offered to sell it.  The Defendant agreed to take it at 7½ months credit he having first stipulated for nine months.  There was something drunk to bind the bargain both parties called for liquor.  The horse was stated by Plaintiff to be then running in the bush.  The horse was to be delivered in a day or two as soon as it could be caught.  The Defendant agreed to give his note of hand at 7½  months.  I don't know whether he did.  It appeared to me that the parties knew what horse they were talking of.  It was described to be a colt out of a mare belonging to a person named Morgan.

The delivery admitted by Mr Keith. [p. 78]  I cant recollect the precise time the agreement was made.  It was more than % month & a half.  The defendant appeared to be sober, but both had been drinking, but appeared to understand what they were about.  There was liquor on the table.  The defendant asked if the Colt was sound, and to the best of my knowledge the Plaintiff said it was sound; but the price would amount to a warranty.  To the best of my knowledge the Plaintiff warranted the horse but I cant say.  The Defendant said he had seen the Colt running in the bush.

rex'dThere was no warranty of soundness.  The Defendant appeared to be aware of the quality of the Colt.  The Defendant seemed to have a high opinion of it, and was anxious to purchase it for a person named Medrith.


Mr Keith  Defence unsoundness.  In Plaintiffs possession ever since.

Wm Brodrick  I know Plaintiff & Defendant.  I am son of Richard Morgan.  I know the Colt belonging to the Plaintiff   when the Colt was about [p. 79] 3 weeks old he was galloping on the road he turned short round and fell upon the broad of his back in a ditch.  The Colt is about 2 years and nine months.  The Colt was bad for fortnight after across the loins and he had been quite weak ever since.  I saw him about six weeks ago on Mr Johnsons run with some of his horses after the Defendant agreed with Plaintiff to buy the horse.  I went up to the Defendants.  I know that the same Colt was sold by Plaintiff to Defendant.

rexd  The Plaintiff gave my Father at the time it was sold to Defendant it was unsound being weakness across the loins.  The Plaintiff told me he had sold the Colt to Defendant two bullocks worth £11.10 for the Colt   it was then about six months old.

Richard Morgan  I am Father of last witness   I received the Colt.  The Plaintiff bought the Colt of me two years and a half ago and gave me two young bullocks for it   they were not broken in   I sold them to Mr Colls for £11.0.0 two or three months afterwards and that I had taken them in Swap for any Colt from the Plaintiff.  An accident happened to the Colt when he was three weeks old on the high road.  It was [p. 80] rainy weather; and he was galloping about and he turned short round and fell upon his back in a ditch.  It was injured across the loins.  I think it would not recover to carry a man a days journey.  When I sold him I did not give a warranty.  He told me he was then injured and being then about six months old.  The Plaintiff and Defendant lived about 4 miles off.  At the time he saw it injured he told me of it.  I saw the Colt again about two or three months since, but I was 20 or 30 rods off   I did not see it 8 or 9 months ago, I saw it when about two years old, but I was not near it.  When I saw it last I did not take particular notice of it.

rexd.  I asked 14£ for it and I thought it a fair price at that time.  The colt will be three years old the 1st Oct.  The Colt was dark Bay, and a little bit of a white spot in the forehead   should not always be weak.  I would not call that a permanent unsoundness.  He is worth 20£ now  nine months ago the same.  I have no idea what the value of horse flesh is now.

John Moss.  I live at Salt Bank Creek.  In [p. 81] August last I saw horses running at Colonel Johnsons   the Plaintiff had horses then running there   I know the Colt sold by Morgan to Henderson.  I saw it in August last and he appeared to be lean and stiff in the loins.  I knew it when it was in Morgans possession   I considered the lameness arose from the hurt it got when it was young.  It appeared to me to be unsound or it would not go lame, I have no great knowledge of horseflesh   when I saw it in August last it was running with other horses of Mr Henderson   it was dark bay with a star in the forehead   the Plaintiff lives between three and four miles from Defendant.  The Plaintiff asked me to say that Mr Colls had told me that he had bought the Colt and would keep me out of the money, Mr Colls did not say so to me to the best of my knowledge.

Rexd.  It might be whether I recollected.  He did not ask me whether I recollected.

I know Mr Keon.

I swear I did not offer to the Plaintiff in the presence of Keon that would prove the soundness of the Colt, I did not offer this to Mr Keon.  I saw an [p. 82] entry in Mr Colls books when there was an entry of the Defendant having bought a Colt on agreement, and that Mr Colls was to bring in one pint of spirits   the price was 40£   I saw it on the books on Sunday.

Jno Roberts  I was in the Defendants employ before he left the house, about two years since.  I have seen the Plaintiff several times at Defendants.  I was at the Defendants in August last year when the Colt was brought.  The Plaintiffs man put the colt in the Stable.  The Defendant was not at home then I fed the Colt.  The Plaintiffs man directed to take care of the Colt as it was very wild.  The Plaintiff was there himself and ordered the man to go home.  The Plaintiff told me to take care of him.  I afterwards turned him out of the stable when my Master returned.  I dont know where the Colt is now   I saw nothing the matter with the colt then and when I turned him out I saw no halting or limping.

Robert Kemp  I am a horse dealer.  I have heard the description of the accident.  If a colt is hurt across the loins when young he will never over come it.  I should [p. 83] not consider a Colt to be sound with such an accident, for he always feels it when put to work.  Colts worth £14 two years ago have since fallen to half,  Two years ago 40£ would be cheap for a two years and a half old Colt, if sound   nine months ago it would be worth about 30£.  I have never seen the Colt.  It would be worth 25£ if in the rate [sic] then described to be.  That horse is now I consider about 10£ value.  It might be sold at 30£ or 40£, or 50£, although no use to the gentleman.


Norton no warranty no fraud even if warranty proved, no lameness proved at the time of sale singular course, turning horse out.  No tender of it no complaint.

Dowling J. told the Jury that if the horse was sold with warranty of soundness and it turned out to be unsound the Plaintiff could not recover   if a horse having a secret malady is sold without a warranty of soundness and without any fraud on the part of the seller, the purchaser. The purchaser is without remedy   Formerly it was a current opinion that a sound price given for a horse was [sic] would amount to a warranty of soundness [p. 84] but that doctrine since exploded for per Ld Mansfield (2 East 320) "There must either be an express warranty of soundness, or fraud in the seller in order to maintain the Action there.

1st  Was there an express warranty  2nd.  If not was there fraud !

For Assessors to decide as matter of evidence

Verdict for the Plaintiff Damages 40£.


[1 ] The importance of this case led it to be selected for publication despite the confusing expression in the notebooks on which it is based, particularly in the summary of the reasoning of Dowling J.  In editing it for publication, none of the grammar was changed, but large spaces were inserted where it appears that a new sentence was intended.

For a case decided on similar facts, see Bryant v. KentishAustralian, 21 October and 4 November 1831; Sydney Herald, 7 November 1831.

Published by the Division of Law, Macquarie University