Family Vignettes--Frederick Durrant Cubbitt and Henry Clement Adams

 

IMPORTANT HORSE CASE

            CUBITT v. ADAMS.—In this action, the plaintiff, Frederick Durrant Cubbitt, tobacconist, London Road, North Lowestoft, sued Henry C. Adams, grocer, Lowestoft, for £15, the balance of the agreed price of a chestnut mare and harness, bargained and sold by the plaintiff to the defendant for £20, on the 8^th April, 1892.

            Mr. H. H. Miller, barrister (instructed by Mr. A. W. Miller, solicitor, Norwich and Lowestoft) appeared for the plaintiff, and Mr. S Linay, solicitor, Norwich and Lowestoft, for the defendant.

            The defendant had paid £9 into Court.

            Frederick Durrant Cubitt, the plaintiff, said on April 7^th, defendant called at his shop and said he called about the chestnut mare he [plaintiff] had to sell, and which was fast and quiet to ride and drive.  Defendant seemed concerned more about the height and colour of the mare than anything else.  Defendant accompanied plaintiff to the stable and measured her, and appeared to be satisfied.  The next day they went for a drive, and on their return plaintiff said he would take £20 for her.  Defendant hesitated a bit, but offered to purchase at that sum with the harness thrown in.  Plaintiff took some time to consider, and afterwards sent a message to defendant, in consequence of which defendant called on plaintiff and said he’d take the mare with the harness for £20.  Defendant then paid plaintiff £5 on account, and defendant asked whether he would give a warranty.  Plaintiff said there was no necessity for a warranty, and he never gave defendant one.  The balance of the money was to be paid on the following Monday, and the money, not being forthcoming, plaintiff’s assistant was sent to defendant about it.  Ultimately, it was arranged that plaintiff should meet defendant at his shop.  Defendant, making a show of paying the money, then said, “I suppose before we settle you will give a warranty.”  This plaintiff declined to do, and defendant then said, “This matter must drop through.”  Plaintiff thereupon walked out of the counting room, and said he would see about it.  He afterwards received a letter from defendant demanding the £5 back, and stating that he had misrepresented the animal.  Plaintiff wrote in reply that the money must be paid.  He never gave defendant a warranty.

            Cross-examined—Plaintiff estimated the value of the harness at about £3.  Plaintiff had had the mare three years.  He might have told the defendant that the mare was all right, but he didn’t remember saying so.  He did describe the animal as a thorough good mare,  and spoke well of it.  Defendant’s father did not say to plaintiff, “What is this all about?”  Defendant did not say to his father in plaintiff’s presence that he had bought a mare of plaintiff which he had warranted sound, but which he now declined to warrant.  Defendant sent the mare back to plaintiff, but he refused to take it because defendant had bought it.  He did receive a letter from defendant containing a veterinary’s certificate that the mare was unsound.  The reason why he parted with the mare was because he wanted the money.

            Re-examined—He never gave a written or spoken warrant with the mare.

            Edward Moore, Dale, hairdresser’s assistant, said on the 8^th April he was in the employ of Mr. Cubitt.  He saw defendant in plaintiff’s shop, and saw him pay plaintiff £5 on account of the horse.  Defendant asked for a warranty whilst plaintiff was writing the receipt,  but plaintiff declined to give it.  Defendant also said when his father came back from the country he would pay the other £15.  He heard plaintiff say that he never received a warranty with the mare when he purchased it.

            Frederick W. Cubitt, plaintiff’s son, said he never heard of a warranty given by plaintiff to defendant.

            This being the plaintiff’s case, Mr. Linay read the veterinary’s certificate that the mare was lame in the off fore leg and unsound in wind.  Defendant considered that the harness was worth £2, and the horse was worth about £12, and as he was legally entitled to do he had paid £9 into Court which, with the £5 already paid, he considered to be the full value of the animal. He (Mr. Linay) contended that , according to plaintiff’s own showing, he had given a legal warranty, although not in writing, and although he did not use the word warranty perhaps.

            Henry Clement Adams, the defendant, said on the 8^th April he saw plaintiff and accompanied him to a stable to see the mare.  They went for a drive, and on their return defendant asked the price, and whether she was all right.  Plaintiff said, “She’s a real goof mare, she’s sound and perfect in every way.”  Ultimately plaintiff said he would take £20 for her.  Defendant said on his (plaintiff’s) representation he would give £20 for the mare and harness, and plaintiff afterwards accepted that price, and defendant paid him £5, and either one or both of the plaintiff’s sons was in the shop.  Plaintiff afterwards applied to defendant’s father for the £15.  Defendant had the mare examined, and forwarded the veterinary’s certificated to plaintiff.  A week afterwards plaintiff came to his shop, and he was going to pay him, and handed him pen and ink saying, “Mr. Cubitt, give me that warranty, you promised.”  Plaintiff refused to give the warranty, and defendant then refused to pay the £15.  It was on the faith of plaintiff’s representations defendant purchased the mare.  Defendant had had experience of horses.  He was not satisfied with the mare when he drove it to Pakefield; she went all over the road.

            Plaintiff explained the mare’s running to the side of the road because she was “fresh,” and when he (defendant) mentioned to the plaintiff anything about her habits they were always explained away.  When defendant asked plaintiff for a warranty with the receipt for the £5, plaintiff said, “Oh, that will do when we settle.”

            Sidney Smith, M.R.C.V.S., Lowestoft, said on the 16^th April, at the request of defendant, he examined a chestnut mare, and found her lame on the off foreleg, and unsound in wind. The lameness had existed for some little time.  The enlargement had existed two or three months at the least.  Her wind was bad, and had been so quite six months, probably more.  She was unsound, and certainly not “all right.”  The value of the mare might be £10, but he (witness) would not give that for her.

            Cross-examined—The enlargement from which the mare was suffering would not in all probability have been seen by a nonprofessional person.  The unsoundness of the wind ought to have been obvious to anybody driving the mare.

            Henry Pratt, harness maker, put the value of the harness at £2.

            Mr. Adam Adams Deputy-Mayor of Lowestoft, defendant’s father, said he heard a conversation between plaintiff and defendant, and he asked “What was up!”  Defendant said “I’m prepared to pay Mr. Cubitt, but he won’t give to me the warranty he promised me.”  Plaintiff said he would not take the money and left the shop in high dudgeon.  Witness wouldn’t give £5 for the mare.  He stigmatized it as a swindle.

            Mr. Miller contended the evidence showed defendant purchased the horse with his eyes wide open, and plaintiff gave him no warranty of any sort.

            His Honour found that there was a breach of warranty, and the defendant had established his case.  Judgment would, therefore , be for the defendant with costs.

 

Genealogy:  Henry Clement Adams 1869-1936 was the son of Adam Adams 1834-1921 and his daughter was Gertrude Emma Adams 1861-1948 and her husband was George Mobbs 1862-1923 and his father was William Mobbs 1838-1915 and his father was George Mobbs 1810-1867 and his mother was Elizabeth Beckett 1789-1871 and her father was William Beckett 1766-1834 and his father was Sir John Beckett 1732-1810 and his daughter was Mary Beckett 1772-1847 and her daughter was Judith (Julie) Snowling 1795-1883 and her daughter was Eliza Dye 1835-1873 and her daughter was Caroline Forster 1864-1906 and her husband was George "Pikey" William Welch-Adams 1867-1940.

Genealogy:  Frederick Durrant Cubitt 1889-1983 was the husband of Frances Maud Spurgeon 1893-1984 and her mother was Elizabeth Chilvers 1853-1931 and her husband was George Waters 1851-1905 and his son was George Waters 1875-1917 and his daughter was Eleanor Laura Kate Waters 1896-1978 and her husband was Thomas William Adams 1894-1975 and his father was George "Pikey" William Welch-Adams 1867-1940.