In those days – the late 1960ies – my office was on the first floor of the Victoria University of Wellington’s 19th century building. To get to it from the lobby, I had to enter the corridor leading to the library and pass the guard who asked you not to take your bag into the library. In my case, this rule did not apply.
I suspected that my office used to be the librarian’s room. Still, for the last ten years it had been the office of the Head of the English and New Zealand Law Department. I got its use when I was constituted a professor at Wellington’s University.
The spacious room was well designed. The window had a breathtaking harbour view. I could enjoy it from my desk. A few steps led to the main reading room of the law library. Most of the books I used were stacked on shelves on the mezzanine terraces. These terraces had been constructed by the turn of the 20th century. Originally, the architect installed movable library ladders, which used to go from the ground to the high ceiling. They had been replaced by the current terraces after one of my predecessors had had a bad fall.
On this specific morning – early in 1969 – I walked to the library in order to get a book on the sale of goods. I needed it to prepare a reading list for classes to be conducted in the coming teaching semester. To my surprise, the book was not in its place. Was it possible that any one of our students would want to read it during the recess?
As I gazed down, my eye caught Robert McBride, one of my professorial colleagues, who appeared to be the only other person in the spacious reading room. Noting my glance, he smiled at me warmly. “Are you, by any chance, looking for Benjamin’s Sale of Goods?”
“As a matter of fact I am. It’s out of date but still a good source for finding authorities.”
“I’ll bring it to your office when I’m finished with it. It won’t need it for long.”
Robert came over some 15 minutes later. Noting my quizzical expression, he explained that he had consulted the book on a point arising in a respect of a brief sent to him by a local law firm. As the book did not provide an answer, he wanted to gauge my reaction. Was a horse a ‘chattel’ as defined in our antiquated Sale of Goods Act? Following some prompting on my part, and some hesitations on his, he narrated to me the facts of the case.
His client, one Jack Smith, who was an amateur horse breeder, spotted an interesting item listed in the catalogue of a then forthcoming auction. The catalogue listed as a breeding mare, with a distinguished lineage of racing horses, some five years old. Jack Smith did not have the time needed inspect the items put up for sale. Still, he flew to Auckland to attend the auction. When the horse came up for sale the auctioneer, Douglas Brown, waved a document and advised he had a certificate attesting the mare was ‘with fowl’. Jack Smith entered the ring and had the mare knocked down to him. When he took possession, he realised the she was not carrying. He had paid twice the amount she was worth in this condition.
“Why do you want to proceed under the Sale of Goods Act, Robert?”
“The ‘chattel’ was not as described! We have a cause of action if the Act applies.”
“Any ‘thing’ put up for sale is a chattel within the meaning of the Act. But let us see the catalogue.”
The catalogue did not mention anything about the mare being with fowl. Worse still, it included the ordinary exemption clause, found in most auction catalogued and regarded as a common, or boiler-plate clause, to the effect that the sales house did not warrant the accuracy of any description. Would-be participants were invited to inspect the items and to form their own opinion respecting them. And this clause was printed in large bold letters.
“Don’t tell me Jack Smith did not notice this clause, Robert. No judge will believe him!”
“But Douglas Brown advised the audience that the certificate was to ‘augment’ the catalogue description.”
“How much did Jack Smith pay for the bloody horse?”
“Mare – Peter! He paid $3000 for it.”
I felt a shock. In those golden days such an amount would enable you to acquire a sound new car. My own Hillman Hunter had cost me considerably less than that.
“Robert, how can any man spend such a sum without having a look at the goods?”
“Jack Smith relied on the good name of the sales house. He has known them for years!”
I understood the point made. I had bid substantial amounts on rare books in reliance on entries in catalogues and advertisements. Naturally, I had had my disappointments. The sums, though, were minute in comparison to the price paid by Jack Smith.
“What does the sales house say on this point?”
“They deny that any statement had been made! So does Douglas Brown, who – as I told you – acted as auctioneer that day.”
“Do you, in the very least, have a copy of the certificate?”
“No!”
“Any witnesses?”
“Nobody is prepared to come forward, especially the under bidders!”
“So – all in all – it is your client’s word against Douglas Brown’s.”
“True.”
“Best of luck then.”
“How would you rank our chances?”
“It all turns on a point of fact. Did Douglas Brown make any statement. If you establish the point, then he made a misrepresentation. You do not need the sale of Goods Act! It is a simple case of a negligent misrepresentation. But would the judge take your Jack Smith’s word?”
“Would you?”
“I’ll have to see Jack Smith and Douglas Brown on the witness stand. For God’s sake, Robert, cover your own back!”
“I shall in my acceptance of the instructions.”