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DOWNIE
v. STEVENSON
This
was an action raised by John Downie, cow-feeder, West Cambus, against
Robert Stevenson, farmer, Park, to recover the sum of ten pounds, eight
shillings sterling, being the price of a cow, and its "keep"
since July last.
John
Downie deponed that on the day of Clackmannan fair, in June last, he saw
a number of cows in Mr Stevenson's possession, and asked him the price
of the one in question. £8 was spoken of. Mr Stevenson said it would
calve in a fortnight. Mr Reid of Gibsley was there, who was asked by Mr
Stevenson if he would not give 15s for the calf. The bargain was
struck at £7 5s. That was in June, but the cow had not calved yet.
(Laughter). Witness soon found that the cow was diseased. There
was a swelling, which the veterinary said was caused by chronic indigestion,
and this, witness supposed, was the cause of the calflessness.
(Laughter). Witness saw Mr Stevenson on the 1st of July, (the Tuesday
after the purchase) and wanted him to take back the cow as being sound,
and also because he suspected she was not in calf, Mr Stevenson said he
would not take it back, but proposed to give £1 off the price. Witness
said the cow was of no use to him and he would rather lose £1 himself
by the transaction. On the following Wednesday, witness saw Mr Bryce,
the veterinary surgeon, who granted a certificate as to the unsound
state of the cow. Witness saw Mr Stevenson on the Saturday following ,
near to the Commercial Inn, and he agreed to take back the cow, and have
it sent with some others to Glasgow. But the man who came for the cow,
would not take it away after seeing it. Witness afterwards spoke to Mr
Stevenson as to what was to be done, but he only laughed at him, hence
the present action.
By
Mr Ewing No person was present when Mr Stevenson was first spoken to
about the cow. When the cow was taken home she got dry cut grass, but
she took very little food at any time. She had to be fed with meal and
water from a bottle, and was taken care of like a child. (Laughter). The
cow had to get linseed oil occasionally , but she was not drugged.
Thomas
Reid, Gibsley, deponed that when in Taylor's public house when the
bargain was struck, something was said about the cow being in calf, but
whether it was the cow Mr Downie got, or another cow, witness could not
recollect. He rather thought it had reference to another cow, for there
was a conversation about another cow. Had no recollection of Mr
Stevenson asking 15s for the calf.
William
Bowie, flesher, Clackmannan, never thought the cow was in calf, thought
Taylor said that he thought she would calve in a fortnight. Providing
that the cow had been all sound, and in calf, she was worth more money
than was paid for her.
By
Mr Ewing Witness had no idea that the cow was not in calf.
(Laughter). In examining a cow to ascertain whether she was in calf, you
would trust more to your hands than your eyes? Witness : Of course.
William
Taylor deponed that though he thought the cow was likely from its
appearance to calve in a fortnight, he did not hear Mr Stevenson say a
single word as to the cow being in calf.
Jemima
Alexander, servant to Mt Downie, deponed to the unhealthy condition of
the cow after it had been brought home.
Mr
John Bryce, veterinary surgeon, Stirling, deponed as to having granted a
certificate as to chronic indigestion being the disease under which the
cow laboured, and it must have been diseased for weeks before the sale.
The disease produces a hoving or swelling.
By
Mr Ewing I have been a veterinary surgeon for twenty years. The cow
was swollen and the stomach distended, and it had a cough, which taken
altogether, show the cow to be unsound. The cow had not been feeding and
was in a wasted condition. Were any person to tell witness that the cow
had been feeding well, and milking well, up to the day of the sale, he
would no believe the statement. The cow must have been ill for at least
a month previous to the time when the witness first saw it.
Andrew
Snaddon, flesher, deponed that he saw Mr Stevenson, who stated that
there was dispute betwixt himself and Mr Downie as to the cow, and
wished him to go and look at it with a view to buy it. Witness went to
see it, but the cow was hoved, and would not suit him.
By
Mr Ewing I supposed I was to buy the cow from Mr Stevenson. I am
not so intimate with Mr Downie as with Mr Stevenson. Mr Stevenson having
asked me to look at the cow, my impression certainly was that he wished
me to buy it from himself.
Mr
Stevenson deponed that when he sold the cow he never thought she was in
calf, and never said so. The cow had been in his possession about six
weeks before |
being
sold, and he had never heard any complaints
about her. In June, cows were selling rather
high. Witness trade in buying and selling cows
was extensive. Supposing the cow had been in
calf, she would have been worth £10 15s. the cow
fed and gave her milk regularly enough, so far
as he understood. Any old wife in the country
may well tell whether a cow is in calf a
fortnight before the expected calving. Witness
met Snaddon, (and in
Downie's presence, he thought), who asked him if he had any cheap lots
for Glasgow. Witness told Sanddon, either in his shop or at his door, of
Downie's cow, but he never meant to sell the cow for himself, as he had
sold it already.
By
Mr Spence We give cows as much meat before selling as possible to
give them a good appearance. The cow was in perfect health
at the date of sale. Witness considered he sold the cow rather cheap.
Mr
Ritchie, Bowhouse, deponed that he had seen the cow about a fortnight
after the sale. He knew that the cow was not in calf. His calculation
was, that if the cow was sound, it might be worth about £10.
Mary
Fallon, remembered the cow, for she fed and milked it from the time Mr
Stevenson brought it to the dairy. The cow took its meat the same as the
others. Witness milked her twice a day. The cow was hale and well the
day she left for the market. Never noticed any swelling about the cow.
By
Mr Spence A number of cows went away on the fair morning to
Clackmannan market. One or two came back. Don't know the cow that was
sold to Mr Downie.
By
Mr Ewing All the cows in the dairy were in good health.
Mary
Fallon, cousin to previous witness, deponed that she attended the cows
in Broad Street. A number went away to Clackmannan market, and two or
three came back. Witness heard that cow that stood No. 4 in the byre had
been sold to Mr Downie. It took its meat as well as the others. Witness
never saw anything wrong with the cow.
Mr
Bryce having been called upon by the Sheriff to say whether, after
hearing the evidence of some of the witnesses for the defender, his
opinion was changed as to the condition of the cow at the date of sale,
stated that he held if possible more firmly to his opinion that the cow
for weeks prior to the time when he saw it must have been unsound.
Mr
Spence, fro the pursuer, addressed the Court at some length. While he
admitted that the evidence was not very conclusive as to the cow having
been sold by Mr Stevenson as in calf, the testimony was irresistible
that the cow was unsound at the date of the sale to Mr Downie. He also
argued that it might fairly be deduced from the evidence of Snaddon,
that the defender had actually agreed to take back the cow, and
accordingly sent Snaddon to look at her with a view to a purchase. The
attempt made to show that the defender intended Snaddon to
purchase the cow from the pursuer, and not from himself, had received a
flat contradiction from that person, and the pursuer, who had large
experience in the buying and selling of cows, was not the person
voluntarily to agree to take back a cow which he was convinced was
sound. The testimony of the veterinary surgeon was clear and explicit
upon the point of the animal being diseased for weeks before the sale.
Mr Spence concluded by pleading for judgement in favour of the pursuer.
Mr
Ewing, fro the defender, argued that beyond the unsupported statement of
Downie himself there was no evidence whatever that the cow was sold as
in calf, and he supposed that was part of the case not now insisted
upon. As for the cow being unsound at the date of sale, evidence had
been adduced to show that the cow was in a healthy condition at that
time, and besides, there was no warrant express or implied of the
soundness of the animal when sold, and farther, that the doctrine of
Implied warrandice could not apply to the case inasmuch as it was not
averred or attempted to be established, that the alleged unsoundness of
the cow was latent, which must be made out before that doctrine
can have effect.
The
Sheriff summed up, holding that it had been established by the pursuer's
witnesses, and by the evidence of the defender himself, that the cow had
been sold for a fair price, and that she was unsound at the date of
sale. His Lordship did not give effect to the view stated by the
defender that it had not been established that the unsoundness of the
cow was latent, inasmuch as it had been proved that the symptoms of
disease exhibited, namely, hoving or swelling, had rather led
inexperienced persons who had seen the cow, to suppose that she was in
calf, than to appear that she was diseased. The Sheriff then gave
judgement for the pursuer, he being inbound return the cow, upon
receiving payment of the price, and keep at the modified rate of 6d per
day, with expenses. |
