Smith v Hughes

Legal Citation:
Smith v Hughes, (1871) LR 6 QB 597 (Queen's Bench Division)

1871 June 6.
COCKBURN, C.J., BLACKBURN and HANNEN, JJ.
Vendor and Vendee - Sale of Chattels - Passive Acquiescence of a Seller in the self-deception
of the Buyer does not entitle the latter to avoid the Contract.
The plaintiff offered to sell to the defendant oats, and exhibited a sample; the defendant took
the sample, and on the following day wrote to say that he would take the oats at the price of 34 per
quarter. The defendant afterwards refused to accept the oats on the ground that they were new, and
he thought he was buying old oats; nothing, however, was said at the time the sample was shewn as
to their being old; but the price was very high for new oats. The judge left to the jury the question
whether the plaintiff had believed the defendant to believe, or to be under the impression, that he
was contracting for old oats, and, if they were of opinion that the plaintiff had so believed, he
directed them to find for the defendant. The jury having found for the defendant:-
Held, that there must be a new trial:
Per Cockburn, C.J., on the ground that the passive acquiescence of the seller in the self-
deception of the buyer did not entitle the latter to avoid the contract.
Per Blackburn, J., on the ground that there is no legal obligation in a vendor to inform a
purchaser that the latter is under a mistake not induced by the act of the vendor; and that the
direction did not bring to the minds of the jury the distinction between agreeing to take the oats
under the belief that they were old, and agreeing to take the oats under the belief that the plaintiff
contracted that they were old.
Per Hannen, J., on the ground that the direction did not sufficiently explain to the jury that, in
order to relieve the defendant from liability, it was necessary that they should find, not merely that
the plaintiff believed the defendant to believe that he was buying old oats, but that the plaintiff
believed the defendant to believe that he, the plaintiff, was contracting to sell old oats.
APPEAL from the County Court of Surrey holden at Epsom.
The plaintiff sought to recover 34 15 8, being the price of sixteen quarters of oats sold by the
plaintiff to the defendant at 34 per quarter, and the loss on the resale by the plaintiff of twenty-nine
quarters of oats agreed to be purchased by the defendant, and which he refused to receive; and the
storage of the quarters of oats for five weeks.
The plaintiff is a farmer. The defendant is an owner and trainer of racehorses.
The plaintiff’s evidence was as follows: "In July last I had a quantity of new winter oats for
sale. I was anxious to get rid of them, because oats were then dear, the supply of English oats being
very short. On Saturday, the 31st of July, I took a sample of these oats to Hughes, who manages for
the defendant, and asked him if he was a buyer of oats. He replied he was always a buyer of good
oats. I said I had some good oats for sale; he asked me how many? I told him from forty to fifty
quarters; he said he would have them all if they were good. I shewed him my sample, and asked 35
a quarter; he took the sample, and said he would give me an answer next day. On the following
Monday he wrote to me to say he would take the oats at 34 a quarter, and I then sent in sixteen
quarters. Soon afterwards I met the defendant, and he said, ‘Why, those were new oats you sent
me.’ I replied, ‘Well I knew they were, and had none others.’ He said, ‘I thought I was buying old
oats. New oats are useless to me; you must take them back again.’ I refused to take them back." On
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cross-examination, the plaintiff said: "I was not aware that the defendant never bought new oats. I
do not know that trainers never use new oats; a trainer has since this transaction offered me money
for new oats. I never told defendant that they were old oats. Nothing was said about it: the word
‘old’ was not mentioned by either of us."
Hughes, the defendant’s manager, stated: "The plaintiff asked me if I was a buyer of oats. I
said I was always a buyer of good old oats. He said, ‘I have some good old oats for sale,’ and gave
me a sample, and asked me 35 a quarter. I said I would let him know. I wrote to say I would give
him 34 When I found they were new oats, I refused to have them, and they were immediately
returned to the plaintiff on his refusal to fetch them back. I never buy new oats if I can get old.
Trainers, as a rule, use old oats." On cross-examination, witness hesitated and contradicted himself
somewhat as to whether the word "old" was used at the time of making the contract.
Evidence was also given for the defendant, that at the time of the contract 34 a quarter was a
very high price for new oats, and such as a prudent man of business would not have given; but that
oats were then very scarce.
In summing up, the judge told the jury that the first question for their consideration was,
whether the word "old" had been used by the plaintiff or defendant in making the contract, and that
the inclination of his opinion was that the word "old" had not been so used; but that was a question
entirely for their consideration. If they were of opinion that the word "old" had been so used, they
would return a verdict for the defendant. If, however, they thought that the word "old" had not been
used, the second question would be, whether they were of opinion, on the state of the evidence, that
the plaintiff believed the defendant to believe, or to be under the impression, that he was contracting
for the purchase of old oats. If so, there would be a verdict for the defendant. But if the jury were of
opinion that nothing was said as to the oats being old or new, and if they were of opinion that the
plaintiff did not believe that the defendant believed or was under the impression that he was
contracting for old oats, then they would find for the plaintiff.
The jury found a verdict for the defendant.
The question for the opinion of the Court was, whether the direction to the jury as above is or
is not correct.
May 2. Pollock, Q.C. (McKellar with him), for the plaintiff. The judge was wrong to leave the
second question to the jury. If the plaintiff believed the defendant to believe that he was buying old
oats, the plaintiff was under no legal obligation to undeceive him. The defendant had the sample; he
could judge for himself what he was buying, and if he had any doubt as to the subject-matter of the
contract he might have demanded a warranty. In Benjamin on the Sale of Personal Property, p. 315,
it is stated: "The mistaken belief as to facts may be created by active means or by fraudulent
concealment, or knowingly false representation; or passively, by mere silence, when it is a duty to
speak. But it is only where a party is under some pledge or obligation to reveal facts to another that
mere silence will be considered as a means of deception." So in Story on Contracts, s. 519, it is laid
down:
"A distinction should be observed between the concealment of extrinsic circumstances
affecting the value of the subject-matter of sale, or operating as an inducement to a contract, such as
the state of the market; and the concealment of intrinsic circumstances appertaining to its nature,
character, and condition, such as natural defects and injuries. In respect of intrinsic circumstances,
the rule is that mere silence as to anything which the other party might by proper diligence have
discovered, and which is open to his examination, is not fraudulent unless a special trust or
confidence exist between the parties, or be implied from the circumstance of the case. ... In respect
to extrinsic circumstances, the rule is that neither party is ordinarily bound to notify them to the
other, and mere concealment will not nullify the contract. But the party concealing a fault must be
careful to do no act and say no word indicative of his assent to any mistaken proposition by the
other; and must play an entirely negative part, for if he do anything positive he will render himself
liable." If, therefore, the plaintiff believed that the defendant was under the impression that he was
buying old oats, and did nothing by word or act to produce this impression on the mind of the

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defendant, but merely allowed him to remain under that impression, the plaintiff’s conduct is not
such as would avoid the contract. According to Paley(Paley’s Moral and Political Philosophy, book
III., chap. 5.), a promise is to be interpreted "in the sense in which the promiser apprehended at the
time that the promisee received it." The judge’s direction ought to have been, that if the plaintiff
believed the defendant to believe that the plaintiff had contracted to sell to the defendant old oats,
then they should find their verdict for the defendant. The question as to the difference between
concealment and mere silence is discussed by Cicero(Cicero de Officiis, Lib. III., capp. xii., xiii.).
He puts the case of a merchant at Rhodes selling corn in a time of scarcity, and asks the question
whether the seller is bound to inform the buyer of what he is aware but the buyer is not, viz., that
there are other ships laden with corn on their way to Rhodes. The conclusion arrived at appears to
be that he is not acting dishonestly in not giving the information.
Arthur Wilson, for the defendant. The judge’s direction, in substance, amounts to this: If the
defendant contracted to buy old oats, he is not bound to accept new oats. And in that sense the
direction is correct. If the plaintiff was selling new oats, and the defendant was buying old oats, the
parties were not ad idem, and there was no contract; and that is what the jury have found. That the
sale was by sample is immaterial; the sample only affects the quality, provided the subject-matter is
the thing contracted for: Azemar v. Casella (Law Rep. 2 C. P. 431); Mody v. Gregson (Law Rep. 4
Ex. 49). In Chitty on Contracts, 5th ed. p. 593, the law on the subject is thus stated: "It has been held
that, where one party to a contract stands by and allows the other to enter into the contract under a
delusion of the existence of which he was aware, and which he might have removed, the contract is
void:" citing Hill v. Gray (1 Stark, 434).
Pollock, Q.C., in reply. In Keates v. Cadogan (10 C. B. 591; 20 L. J. (C.P.) 76), Jervis, C.J.,
points out that in Hill v. Gray (1 Stark, 434) there appears to have been a positive aggressive deceit;
and that case, therefore, is no authority for the proposition for which it is cited in Chitty on
Contracts.
Cur. adv. vult.
June 6. The following judgments were delivered:-
COCKBURN, C.J.
This was an action brought in the county court of Surrey, upon a contract for the sale of a
quantity of oats by plaintiff to defendant, which contract the defendant had refused to complete, on
the ground that the contract had been for the sale and purchase of old oats, whereas the oats
tendered by the plaintiff had been oats of the last crop, and therefore not in accordance with the
contract.
The plaintiff was a farmer, the defendant a trainer of racehorses. And it appeared that the
plaintiff, having some good winter oats to sell, had applied to the defendant’s manager to know if
he wanted to buy oats, and having received for answer that he (the manager) was always ready to
buy good oats, exhibited to him a sample, saying at the same time that he had forty or fifty quarters
of the same oats for sale, at the price of 35 per quarter. The manager took the sample, and on the
following day wrote to say he would take the whole quantity at the price of 34 a quarter.
Thus far the parties were agreed; but there was a conflict of evidence between them as to
whether anything passed at the interview between the plaintiff and defendant’s manager on the
subject of the oats being old oats, the defendant asserting that he had expressly said that he was
ready to buy old oats, and that the plaintiff had replied that the oats were old oats, while the plaintiff
denied that any reference had been made to the oats being old or new.
The plaintiff having sent in a portion of the oats, the defendant, on meeting him afterwards,
said, "Why, those were new oats you sent me;" to which the plaintiff having answered, "I knew they
were; I had none other." The defendant replied, "I thought I was buying old oats: new oats are
useless to me; you must take them back." This the plaintiff refused to do, and brought this action.
It was stated by the defendant’s manager that trainers as a rule always use old oats, and that
his own practice was never to buy new oats if he could get old.

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 But the plaintiff denied having known that the defendant never bought new oats, or that
trainers did not use them; and, on the contrary, asserted that a trainer had recently offered him a
price for new oats. Evidence was given for the defendant that 34 a quarter was a very high price for
new oats, and such as a prudent man of business would not have given. On the other hand, it
appeared that oats were at the time very scarce and dear.
The learned judge of the county court left two questions to the jury: first, whether the word
"old" had been used with reference to the oats in the conversation between the plaintiff and the
defendant’s manager; secondly, whether the plaintiff had believed that the defendant believed, or
was under the impression, that he was contracting for old oats; in either of which cases he directed
the jury to find for the defendant.
It is to be regretted that the jury were not required to give specific answers to the questions so
left to them. For, it is quite possible that their verdict may have been given for the defendant on the
first ground; in which case there could, I think, be no doubt as to the propriety of the judge’s
direction; whereas now, as it is possible that the verdict of the jury - or at all events of some of them
- may have proceeded on the second ground, we are called upon to consider and decide whether the
ruling of the learned judge with reference to the second question was right.
For this purpose we must assume that nothing was said on the subject of the defendant’s
manager desiring to buy old oats, nor of the oats having been said to be old; while, on the other
hand, we must assume that the defendant’s manager believed the oats to be old oats, and that the
plaintiff was conscious of the existence of such belief, but did nothing, directly or indirectly, to
bring it about, simply offering his oats and exhibiting his sample, remaining perfectly passive as to
what was passing in the mind of the other party. The question is whether, under such circumstances,
the passive acquiescence of the seller in the self-deception of the buyer will entitle the latter to
avoid the contract. I am of opinion that it will not.
The oats offered to the defendant’s manager were a specific parcel, of which the sample
submitted to him formed a part. He kept the sample for twenty-four hours, and had, therefore, full
opportunity of inspecting it and forming his judgment upon it. Acting on his own judgment, he
wrote to the plaintiff, offering him a price. Having this opportunity of inspecting and judging of the
sample, he is practically in the same position as if he had inspected the oats in bulk. It cannot be
said that, if he had gone and personally inspected the oats in bulk, and then, believing - but without
anything being said or done by the seller to bring about such a belief - that the oats were old, had
offered a price for them, he would have been justified in repudiating the contract, because the seller,
from the known habits of the buyer, or other circumstances, had reason to infer that the buyer was
ascribing to the oats a quality they did not possess, and did not undeceive him.
I take the true rule to be, that where a specific article is offered for sale, without express
warranty, or without circumstances from which the law will imply a warranty - as where, for
instance, an article is ordered for a specific purpose - and the buyer has full opportunity of
inspecting and forming his own judgment, if he chooses to act on his own judgment, the rule caveat
emptor applies. If he gets the article he contracted to buy, and that article corresponds with what it
was sold as, he gets all he is entitled to, and is bound by the contract. Here the defendant agreed to
buy a specific parcel of oats. The oats were what they were sold as, namely, good oats according to
the sample. The buyer persuaded himself they were old oats, when they were not so; but the seller
neither said nor did anything to contribute to his deception. He has himself to blame. The question
is not what a man of scrupulous morality or nice honour would do under such circumstances. The
case put of the purchase of an estate, in which there is a mine under the surface, but the fact is
unknown to the seller, is one in which a man of tender conscience or high honour would be
unwilling to take advantage of the ignorance of the seller; but there can be no doubt that the
contract for the sale of the estate would be binding.
Mr. Justice Story, in his work on Contracts (vol. i. s. 516), states the law as to concealment as
follows:- "The general rule, both of law and equity, in respect to concealment, is that mere silence
with regard to a material fact, which there is no legal obligation to divulge, will not avoid a

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contract, although it operate as an injury to the party from whom it is concealed." "Thus," he goes
on to say (s. 517), "although a vendor is bound to employ no artifice or disguise for the purpose of
concealing defects in the article sold, since that would amount to a positive fraud on the vendee;
yet, under the general doctrine of caveat emptor, he is not, ordinarily, bound to disclose every
defect of which he may be cognizant, although his silence may operate virtually to deceive the
vendee." "But," he continues (s. 518), "an improper concealment or suppression of a material fact,
which the party concealing is legally bound to disclose, and of which the other party has a legal
right to insist that he shall be informed, is fraudulent, and will invalidate a contract." Further,
distinguishing between extrinsic circumstances affecting the value of the subject-matter of a sale,
and the concealment of intrinsic circumstances appertaining to its nature, character, and condition,
he points out (s. 519), that with reference to the latter, the rule is "that mere silence as to anything
which the other party might by proper diligence have discovered, and which is open to his
examination, is not fraudulent, unless a special trust or confidence exist between the parties, or be
implied from the circumstances of the case." In the doctrine thus laid down I entirely agree.
Now, in this case, there was plainly no legal obligation in the plaintiff in the first instance to
state whether the oats were new or old. He offered them for sale according to the sample, as he had
a perfect right to do, and gave the buyer the fullest opportunity of inspecting the sample, which,
practically, was equivalent to an inspection of the oats themselves. What, then, was there to create
any trust or confidence between the parties, so as to make it incumbent on the plaintiff to
communicate the fact that the oats were not, as the defendant assumed them to be, old oats? If,
indeed, the buyer, instead of acting on his own opinion, had asked the question whether the oats
were old or new, or had said anything which intimated his understanding that the seller was selling
the oats as old oats, the case would have been wholly different; or even if he had said anything
which shewed that he was not acting on his own inspection and judgment, but assumed as the
foundation of the contract that the oats were old, the silence of the seller, as a means of misleading
him, might have amounted to a fraudulent concealment, such as would have entitled the buyer to
avoid the contract. Here, however, nothing of the sort occurs. The buyer in no way refers to the
seller, but acts entirely on his own judgment.
The case of Horsfall v. Thomas (1 H. C. 90; 31 L. J. (Ex.) 322), if that case can be considered
good law, is an authority in point. In that case a gun which had been manufactured for a purchaser,
had, when delivered, a defect in it, which afterwards caused it to burst; yet it was held that, although
the manufacturer, instead of making the purchaser acquainted with the defect, had resorted to a
contrivance to conceal it, as the buyer had had an opportunity of inspecting the gun, and had
accepted it without doing so, and had used it, it was not competent to him to avoid the contract on
the ground of fraud. The case has, however, been questioned, and dissenting altogether from the
decision, I notice it only to say that my opinion in the present case has been in no degree influenced
by its authority.
In the case before us it must be taken that, as the defendant, on a portion of the oats being
delivered, was able by inspection to ascertain that they were new oats, his manager might, by due
inspection of the sample, have arrived at the same result. The case is, therefore, one of the sale and
purchase of a specific article after inspection by the buyer. Under these circumstances the rule
caveat emptor clearly applies; more especially as this cannot be put as a case of latent defect, but
simply as one in which the seller did not make known to the buyer a circumstance affecting the
quality of the thing sold. The oats in question were in no sense defective, on the contrary they were
good oats, and all that can be said is that they had not acquired the quality which greater age would
have given them. There is not, so far as I am aware, any authority for the position that a vendor who
submits the subject-matter of sale to the inspection of the vendee, is bound to state circumstances
which may tend to detract from the estimate which the buyer may injudiciously have formed of its
value. Even the civil law, and the foreign law, founded upon it, which require that the seller shall
answer for latent defects, have never gone the length of saying that, so long as the thing sold
answers to the description under which it is sold, the seller is bound to disabuse the buyer as to any
exaggerated estimate of its value.
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 It only remains to deal with an argument which was pressed upon us, that the defendant in the
present case intended to buy old oats, and the plaintiff to sell new, so the two minds were not ad
idem; and that consequently there was no contract. This argument proceeds on the fallacy of
confounding what was merely a motive operating on the buyer to induce him to buy with one of the
essential conditions of the contract. Both parties were agreed as to the sale and purchase of this
particular parcel of oats. The defendant believed the oats to be old, and was thus induced to agree to
buy them, but he omitted to make their age a condition of the contract. All that can be said is, that
the two minds were not ad idem as to the age of the oats; they certainly were ad idem as to the sale
and purchase of them. Suppose a person to buy a horse without a warranty, believing him to be
sound, and the horse turns out unsound, could it be contended that it would be open to him to say
that, as he had intended to buy a sound horse, and the seller to sell an unsound one, the contract was
void, because the seller must have known from the price the buyer was willing to give, or from his
general habits as a buyer of horses, that he thought the horse was sound? The cases are exactly
parallel.
The result is that, in my opinion, the learned judge of the county court was wrong in leaving
the second question to the jury, and that, consequently, the case must go down to a new trial.
BLACKBURN, J.
In this case I agree that on the sale of a specific article, unless there be a warranty making it
part of the bargain that it possesses some particular quality, the purchaser must take the article he
has bought though it does not possess that quality. And I agree that even if the vendor was aware
that the purchaser thought that the article possessed that quality, and would not have entered into
the contract unless he had so thought, still the purchaser is bound, unless the vendor was guilty of
some fraud or deceit upon him, and that a mere abstinence from disabusing the purchaser of that
impression is not fraud or deceit; for, whatever may be the case in a court of morals, there is no
legal obligation on the vendor to inform the purchaser that he is under a mistake, not induced by the
act of the vendor. And I also agree that where a specific lot of goods are sold by a sample, which
the purchaser inspects instead of the bulk, the law is exactly the same, if the sample truly represents
the bulk; though, as it is more probable that the purchaser in such a case would ask for some further
warranty, slighter evidence would suffice to prove that, in fact, it was intended there should be such
a warranty. On this part of the case I have nothing to add to what the Lord Chief Justice has stated.
But I have more difficulty about the second point raised in the case. I apprehend that if one of
the parties intends to make a contract on one set of terms, and the other intends to make a contract
on another set of terms, or, as it is sometimes expressed, if the parties are not ad idem, there is no
contract, unless the circumstances are such as to preclude one of the parties from denying that he
has agreed to the terms of the other. The rule of law is that stated in Freeman v. Cooke (2 Ex. at p.
663; 18 L. J. (Ex.) at p. 119). If, whatever a man’s real intention may be, he so conducts himself
that a reasonable man would believe that he was assenting to the terms proposed by the other party,
and that other party upon that belief enters into the contract with him, the man thus conducting
himself would be equally bound as if he had intended to agree to the other party’s terms.
The jury were directed that, if they believed the word "old" was used, they should find for the
defendant - and this was right; for if that was the case, it is obvious that neither did the defendant
intend to enter into a contract on the plaintiff’s terms, that is, to buy this parcel of oats without any
stipulation as to their quality; nor could the plaintiff have been led to believe he was intending to do
so.
But the second direction raises the difficulty. I think that, if from that direction the jury would
understand that they were first to consider whether they were satisfied that the defendant intended
to buy this parcel of oats on the terms that it was part of his contract with the plaintiff that they were
old oats, so as to have the warranty of the plaintiff to that effect, they were properly told that, if that
was so, the defendant could not be bound to a contract without any such warranty unless the
plaintiff was misled. But I doubt whether the direction would bring to the minds of the jury the
distinction between agreeing to take the oats under the belief that they were old, and agreeing to

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take the oats under the belief that the plaintiff contracted that they were old.
The difference is the same as that between buying a horse believed to be sound, and buying
one believed to be warranted sound; but I doubt if it was made obvious to the jury, and I doubt this
the more because I do not see much evidence to justify a finding for the defendant on this latter
ground if the word "old" was not used. There may have been more evidence than is stated in the
case; and the demeanour of the witnesses may have strengthened the impression produced by the
evidence there was; but it does not seem a very satisfactory verdict if it proceeded on this latter
ground. I agree, therefore, in the result that there should be a new trial.
HANNEN, J.
I think there should be a new trial in this case, not because the ruling of the county court judge
was incorrect, but because, having regard to the evidence, I think it doubtful whether the jury
sufficiently understood the direction they received to enable them to take it as their guide in
determining the question submitted to them.
It appears from the evidence on both sides that the plaintiff sold the oats in question by a
sample which the defendant’s agent took away for examination. The bargain was only completed
after this sample had been in the defendant’s possession for two days. This, without more, would
lead to the conclusion that the defendant bought on his own judgment as to the quality of the oats
represented by the sample and with the usual warranty only, that the bulk should correspond with it.
There might, however, be superadded to this warranty an express condition that the oats should be
old, and the defendant endeavoured by his evidence to establish that there was such an express
bargain between him and the plaintiff. This was the first question which the jury had to consider;
but as they have not stated whether they answered it in favour of he defendant, it is possible - and,
from the judge’s report, it is most probable - that they did not so answer it, and the case must be
considered on the assumption that there was no express stipulation that the oats were old.
There might have been an implied term in the contract arising from previous dealings or other
circumstances, that the oats should be old; but the learned judge probably thought the evidence did
not make it necessary that he should leave this question to the jury. And the second question, which
he did leave to them, seems intended to ascertain whether there was any contract at all between the
parties.
It is essential to the creation of a contract that both parties should agree to the same thing in
the same sense. Thus, if two persons enter into an apparent contract concerning a particular person
or ship, and it turns out that each of them, misled by a similarity of name, had a different person or
ship in his mind, no contract would exist between them: Raffles v. Wichelhaus. (2 H. C. 906; 33 L.
J. (Ex.) 160)
But one of the parties to an apparent contract may, by his own fault, be precluded from setting
up that he had entered into it in a different sense to that in which it was understood by the other
party. Thus in the case of a sale by sample where the vendor, by mistake, exhibited a wrong sample,
it was held that the contract was not avoided by this error of the vendor: Scott v. Littledale. (8 E. B.
815; 27 L. J. (Q.B.) 201)
But if in the last-mentioned case the purchaser, in the course of the negotiations preliminary
to the contract, had discovered that the vendor was under a misapprehension as to the sample he
was offering, the vendor would have been entitled to shew that he had not intended to enter into the
contract by which the purchaser sought to bind him. The rule of law applicable to such a case is a
corollary from the rule of morality which Mr. Pollock cited from Paley(Moral and Political
Philosophy, Book III., ch. v), that a promise is to be performed "in that sense in which the promiser
apprehended at the time the promisee received it," and may be thus expressed: "The promiser is not
bound to fulfil a promise in a sense in which the promisee knew at the time the promiser did not
intend it." And in considering the question, in what sense a promisee is entitled to enforce a
promise, it matters not in what way the knowledge of the meaning in which the promiser made it is
brought to the mind of the promisee, whether by express words, or by conduct, or previous
dealings, or other circumstances. If by any means he knows that there was no real agreement
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between him and the promiser, he is not entitled to insist that the promise shall be fulfilled in a
sense to which the mind of the promiser did not assent.
If, therefore, in the present case, the plaintiff knew that the defendant, in dealing with him for
oats, did so on the assumption that the plaintiff was contracting to sell him old oats, he was aware
that the defendant apprehended the contract in a different sense to that in which he meant it, and he
is thereby deprived of the right to insist that the defendant shall be bound by that which was only
the apparent, and not the real bargain.
This was the question which the learned judge intended to leave to the jury; and, as I have
already said, I do not think it was incorrect in its terms, but I think that it was likely to be
misunderstood by the jury. The jury were asked, "whether they were of opinion, on the whole of the
evidence, that the plaintiff believed the defendant to believe, or to be under the impression that he
was contracting for the purchase of old oats? If so, there would be a verdict for the defendant." The
jury may have understood this to mean that, if the plaintiff believed the defendant to believe that he
was buying old oats, the defendant would be entitled to the verdict; but a belief on the part of the
plaintiff that the defendant was making a contract to buy the oats, of which he offered him a
sample, under a mistaken belief that they were old, would not relieve the defendant from liability
unless his mistaken belief were induced by some misrepresentation of the plaintiff, or concealment
by him of a fact which it became his duty to communicate. In order to relieve the defendant it was
necessary that the jury should find not merely that the plaintiff believed the defendant to believe
that he was buying old oats, but that he believed the defendant to believe that he, the plaintiff, was
contracting to sell old oats.
I am the more disposed to think that the jury did not understand the question in this last sense
because I can find very little, if any, evidence to support a finding upon it in favour of the
defendant. It may be assumed that the defendant believed the oats were old, and it may be suspected
that the plaintiff thought he so believed, but the only evidence from which it can be inferred that the
plaintiff believed that the defendant thought that the plaintiff was making it a term of the contract
that the oats were old is that the defendant was a trainer, and that trainers, as a rule, use old oats;
and that the price given was high for new oats, and more than a prudent man would have given.
Having regard to the admitted fact that the defendant bought the oats after two days’ detention
of the sample, I think that the evidence was not sufficient to justify the jury in answering the
question put to them in the defendant’s favour, if they rightly understood it; and I therefore think
there should be a new trial.
Judgment accordingly.
Attorneys for plaintiff: Park W. B. Nelson.
Attorney for defendant: Haynes.