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

Brown v. Hayward [1840] NSWSupC 52

promissory note, sale of goods, warranty

Supreme Court of New South Wales

Willis J., 23 September 1840

Source: Sydney Herald, 28 September 1840[1]

Before Mr. Justice Willis, with Messrs. Johnstone and Donaldson, Assessors.

            BROWN vHAYWARD. - The plaintiff in this action was the Sheriff's bailiff at Campbelltown, and the defendant Mr. Augustus Hayward, attorney.  It was an action of assumpsit, brought to recover the sum of £42, being the amount of a promissory note, which the defendant had given to the plaintiff, as the value of an iron grey horse, payable three months after the purchase had been made, which took place in Campbelltown in May last, under the following circumstances.  Mr. Hayward had occasion to go to Stonequarry in March last, and on his arriving at Campelltown found that all the seats in the Stonequarry mail were full, and the only horse he could obtain in that quarter was the one in question, which plaintiff lent him, on which he rode to Stonequarry that day and returned on the following, being a distance of about eighteen miles going and the same returning.  After returning to Campbelltown the defendant was so well pleased with the horse that he offered to purchase him, and on enquiring the price was told forty guineas; the plaintiff having paid forty pounds for the same animal about a fortnight before.  The defendant offered thirty-five pounds cash, which was refused; but the plaintiff offered to take the defendant's bill at three months, if he would take the animal at forty guineas, which the defendant agreed to give, provided the plaintiff gave him a warranty; the plaintiff told him he could not give that, as he had got no warranty with it, he believed the horse was sound, but poor in condition he having been lately brought from a cold country; he also stated to the defendant that as the horse was sound, if he had been in good condition, he would have been worth £60, these verbal statements were the only warranty which the defendant received.  Defendant having completed the purchase, left the horse at Campbelltown to be forwarded to Sydney, so as not to exhaust him; he was accordingly sent down, and on his arrival appearing unwell was sent to Sandwell's livery stables, when on examination the horse appeared very much wailed, weak, and to have a stiff neck; the animal lingered for about a month and died, on which the defendant refused to take up the note.  His Honor cited a case of verbal warranty, and left it to the assessors to say, whether the words respecting the horse being sound amounted to a warranty, when they found a verdict for the defendant.


[1]              See also Australian, 29 September 1840.


Published by the Division of Law, Macquarie University