Where a horse is sold at a repository on the condition that, if it does not answer the warranty given with it, it may be returned within a certain time, the auctioneer is statute-holder between the seller and purchaser, and the money paid by the latter does not rest in the seller until such time has elapsed. The purchase-money, until such time has elapsed, should be retained by the auctioneer. A misdescription of horse put up for sale by the auctioneer will vitiate a sale, and may even amount to fraud, as if a horse be wrongly described as the property of a certain gentleman deceased, or as belonging to a certain stud. Where, too, it is expressed in the conditions of the sale that " the highest bidder shall be the purchaser, and if a dispute arise, it shall be decided by a majority of the persons present", it would be fraudulent for the seller to bid either himself or by an agent.
Puffing also is illegal, and if the buyer finds it out, the seller cannot recover the price (Pilmore v. Hood, 5 Bingham, N.C. 97, 1838). This point was fully considered in Crowder v. Austin (3 Bingham, 368, 1826). This action was brought to recover the price of a horse sold at Aldridge's Repository, where one of the conditions of sale was that each horse should be sold to the highest bidder. The seller had employed his groom to run up the price of the horse, and the buyer, having discovered this, refused to take it. The plaintiff was non-suited. Auctioneers have also a lien (or claim) upon horses sold by them for their commission and charges (Robinson v. Butter, 4 E. v. B. 954, 1855; Williams v. Millington, v. supra; and Grice v. Kenrick, L.R. 5, 2 B. 340, 1870). Where fraudulent representations are put into the mouth of the auctioneer, the seller cannot recover the price (Murray v. Mann, 2 Exch. 538, 1848).
Generally, it may be stated that a sale in a fair or market overt is binding upon all persons claiming any property in the thing sold. In the country, market overt is only held upon certain fixed days, in a place specially set apart for the purpose; but shops are not market overt. In the city of London every shop is market overt for the class of goods usually sold there, and every day, except Sunday, is a market day. In the case of horses, the general rule as regards sales in market overt are somewhat modified by statute. The first statute dealing with the question was passed in 1555 (2 v. 3 P. v. M.C. 7), and this was followed in 1589 by another (31 Elir. C. 12). They provide inter alia that, in all fairs and markets overt where horses are sold, a toll-keeper shall be appointed to keep the place from ten o'clock in the morning till sunset, and to take tolls for all horses. Such toll-keeper was further required to enter the names, descriptions, and addresses of buyers and sellers in a book kept for the. purpose, together with a full description of the horses sold. These statutes were mainly directed against horse-stealing, and practically effected their object.
It should be noticed here that a sale at a repository outside the city of London is not a sale in market overt (See v. Bayes, 18 C.B. 599, 1856).
Another class of persons who are liable to the laws of warranty are job-masters. When a job-master lets out a horse or carriage for any particular purpose, he is taken to have warranted it for that purpose.
This reservation is important, as such liability ceases if the hirer has used the horse for any other purpose than that for which it is let out.
Thus, if a horse is let out for riding, the hirer must not put it into harness; if he does so, and an accident thereby happens, he, and not the owner, is liable.
Generally, also, if the hirer keeps the horse for a longer period than that for which it is hired, he is responsible. With these exceptions, however, and certain others which I shall presently notice, the letter is responsible for every accident and loss which he cannot prove to have been due to the positive negligence of the hirer (Cooper v. Burton, 3 Camp. 5, 1810). What constitutes negligence in contemplation of law is not capable perhaps of exact definition.
Some acts, however, are clearly negligent.
Thus, in driving on the wrong side of the road, one is bound to exercise more than ordinary care to avoid a collision; if one do not exercise such care, and an accident happens, one will clearly be liable for such accident on the ground of negligence. So, too, a hirer has been held liable for "overdriving" a horse (Walley v. Holt, 35 L.T., N.S., 630, 1876).
But where a horse is returned with broken knees the letter must prove negligence in the hirer (Cooper v. Burton, v. supra).
If a horse fall ill during the hiring, and the hirer prescribes for it himself and the horse dies, he is liable, but not if he calls in a farrier (Deane v. Keate, 3 Camp. 4, 1811); also, if a horse become exhausted and refuse its food, the hirer must discontinue the use of it (Bray v. Maine, Gow. 1, and see Edwards v. Carr, 13 Gray's Massachusetts Rep. 234, 1859). To support an action for negligence the rule is that there must be some affirmative proof of negligence; where the evidence does not go to prove which party failed to take proper care, the plaintiff will fail in his action. Further, if there has been contributory negligence, that is if an accident alleged to have been caused by the negligence of the defendant would not have happened but for negligence on the part of the plaintiff, the latter could not recover. The owner is also bound to supply strong and proper harness where a horse is employed to draw any vehicle, and is liable if any accident occurs through the reins breaking (Cotterill v. Starkey, S.C. v. P. 693). It was there stated that "if a person driving along the road cannot pull up because his reins break, that will be no ground of defence, as he is bound to have proper tackle". It was also decided in this case that " a foot-passenger has a right to cross a highway, and persons driving carriages along the road are liable if they do not take care, so as to avoid driving against the foot-passengers who are crossing the road ". They are also bound "to drive slowly, cautiously, and carefully over a crossing for foot-passengers", while a correlative duty is cast upon the foot-passengers "to use due care and caution in going upon a crossing, so as not recklessly to get among the carriages (Williams v. Richards, 3 C. v. K. 82). "The rule", however, "as to the proper side of the road does not apply with respect to foot-passengers; and as regards foot-passengers, the carriages may go on whichever side they please" (Cotterill v. Tuff).
Where a job-master lets horses by the day, week, or job, and also supplies the driver, he is generally responsible for all the injuries resulting from careless driving; if, however, the hirer supplies the driver, he would appear to be responsible for any accident or loss arising from negligence or want of skill in such driver (Croft v. Alison, 4 B. v. Ald. 590). Where, however, the letter supplies the driver, the hirer may make himself responsible under certain circumstances, as where he takes upon himself the actual management of the horses, or directs the driver to do something unusual or improper, in consequence of which an accident happens (Quarman v. Burnett, 6 M. v. W., 507).
The mere fact of the hirer sitting on the box-seat alongside the driver will not, however, as commonly supposed, relieve the latter of responsibility. Of course, if an accident happens through a servant exceeding or not acting within the scope of his duties, the master is not liable. What acts are and what are not within the scope of the servant's employment it is not always easy to determine, and is a question that must necessarily depend to a large extent upon the facts of each particular case.