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

Bryant v. Kentish (1832) NSW Sel Cas (Dowling) 28; [1832] NSWSupC 18

sale of goods, warranty of soundness - sale of goods, rescission - cheques

Supreme Court of New South Wales

Forbes C.J., 7 March 1832

Source: Australian, 16 March 1832[1 ]

 

Wednesday, 7th. Before the Chief Justice and Messrs. Bettingtom and Ross, assessors. Bryant v. Kentish. This was an action brought to recover the sum of £11 5s. being the amount of at [sic] dishonored cheque on the Bank of Australia, drawn by defendant, in payment for a horse bought at auction of the plaintiff, with which horse defdt. contended there was given a verbal warranty, and that on trial the beast proved unsound. A special verdict was returned - for the plaintiff, subject to disproof of the warranty alleged: thereby implying the sufficient of verbal warranties. For the pltf. Messrs. Foster, Therry and Sheehy ; for the defendant, Mr. Keith. [The specialty of the case not having been argued on the same day, according to the rule of Court, in absence of Counsel, - we presume this notable case in now done with.]

 

Forbes C.J. and Dowling J., March 1832[2 ]

Source: Dowling, Select Cases, Archives Office of N.S.W., 2/3466

[p. 170] [Where Vendee paid Vendor a Check on a Banker for the price of a horse warranted sound, and on discovering the horse to be unsound promptly rescinded the contract by refusing payment of the check and tendering the horse to the vendor;  Held that the latter could not maintain an action on the check.]

 

Bryant v Kentish

The Judgment of the Court in this case was delivered this day for Dowling Js opinion.

Forbes CJ delivered his judgment to same effect   I am of opinion that the finding of the Assessors that the Plaintiff did not know the horse to be unsound at the time the warranty was given makes no difference it appearing in evidence that the contract was rescinded within a reasonable time after the unsoundness was discovered, by the Defendants tendering the horse to the Plaintiff in the same state he had received it.  This decision in supported by the doctrine of the cases of Weston v [p. 171] Downes 1 Doug 23.  Power v Wells Cowp 818. Doug 24 Towers v Barrett 1 T.R. 133 Curtis v Hannay 3 Espinasse 82 Ellis v Mortimer 1 NA. 257.  The case of Lewis v Cosgrove 2 Taunt 2 does not decide this case as was contended.  The point to be raised was not decided.  The case went off upon its appearing manifest that there was fraud which rendered the discussion of the point here raised wholly unnecessary.  I am of opinion that there was no necessity in this case to prove knowledge of the unsoundness in the Plaintiff to defeat his right of action.

Rule Refused.

 

Notes

[1 ] See also Sydney Herald, 12 March 1832.  For other cases in this series, see Kentish v. Norton, 1832; Poignand v. Kentish, 1832.

[2 ] From its position in the Select Cases, it is likely that this hearing took place at the end of March 1832.

Published by the Division of Law, Macquarie University