The trial, which took place some two months later on, demonstrated that, in the case in question, Robert was no match for Thomas. Jack Smith, the plaintiff, had to be the first to present himself as a witness. Robert asked him the usual questions respecting his background, his experience in horse breeding and his reliance on the catalogue. He ended his examination by a set of simple questions.
“So why did you rely on the John Brown’s statement?”
“I have dealt with the sales house for years and have full trust in them.”
“How about the auctioneer – Douglas Brown?”
“I have known him for a long time”. Turning to the judge he added: “I thought he was a decent chap. And his statement was clear: he said the mare was with fowl.”
“Did you ask for a copy of the certificate?” interceded the judge.
“I saw no need for this, Your Honour. I was sure he was a gentleman and, further, could not imagine that the sales house would have any other type of man on its staff.”
“No further questions,” concluded Robert.
Thomas Bardwell looked sombre. His own clients, Douglas Brown and the sales house, were accused of misrepresentation and misleading practices. These were serious allegations. Thomas had to convince the judge they were unfounded. The plaintiff, Jack Smith, was a reputable businessman and his word should not be taken lightly. If the judge accepted his version, the sales house’s reputation would be tarnished regardless of legal niceties.
Thomas was considering his line of attack. Since his years as a law student, he had grown from a heavily set but agile young man into a middle-aged man. His hair was receding and his sunken eyes and tired expression evidenced the constant stress of his work. Still, I knew he was taking his daily exercise and often spent some time in the gym. In comparison, Jack Smith looked bloated and under-exercised. I thought it unlikely that he spent much time riding his horses. And his beer belly suggested that he frequented pubs and clubs rather than stables. My friend and colleague, Robert McBride, appeared younger and more vigorous than either of them. Was it possible that his studious life and regular lectures kept him from aging?
“Your interest in horse breeding is only a hobby, Mr Smith” started Thomas.
“Quite,” replied Jack Smith.
“Could you please tell us more about your other hobbies and main occupation?”
To my dismay, Robert rose to his feet and objected to the question on the ground that it was irrelevant.
“I’ll withdraw the question then,” volunteered Thomas. “We have no wish to probe into the witnesses’ private affairs.”
“I have nothing to hide,” interceded Jack Smith angrily.
“The question has been withdrawn. So, it is no longer before us,” explained the judge.
Robert had disclosed his weak point. On legal grounds his objection was sound: the question was not in issue. The question, though, was harmless and the judge’s body language showed that the episode left a negative impression on him.
Thomas’ reaction was swift. “Well, Mr. Smith, how many hours a week do you spend on your … horse breeding hobby?”
“Most weekends and about two mornings during weekdays.”
“Quite a major hobby, isn’t it?”
“Well, yes.”
“And how many horses do you have?”
“Objection, your Honour. I don’t see the relevance of the question,” interceded Robert.
“I’ll allow it,” retorted the judge. “Answer the question, Mr. Smith.”
“About thirty,” replied Jack Smith.
“Quite a large stable for an amateur, isn’t it?”
“It is,” conceded Jack Smith with some pride.
“And how may of them have you bought from my clients?”
“This was the first. I know them from transactions in my main type of business. It is …”
“Please confine yourself to answering the question put to you,” instructed the judge.
“We’ll accept the answer on the question asked,” clarified Thomas. “And Mr. Smith, you read the catalogue.”
“I did. That’s where I got the description of the mare.”
“Did the catalogue say she was with fowl?”
“It did not. Mr. Brown augmented the description in catalogue!”
“Did you read clause 15 of the terms and conditions printed on the first page of the catalogue?” asked Robert, referring to the exemption clause
“I did. But I did not pay much attention to it.”
“Why?”
“It is printed in every catalogue I receive!”
“So, you were told not to rely on the descriptions in the catalogue. You were asked to examine the items you were interested in.”
“I did not have the time to do so! Nobody does”
“Your Honour, I ask that the second part of the answer be struck out or that Mr. Smith convey to us the source of his information.”
“Mr. McBride?” asked the judge.
“I agree this part of the answer be struck out,” yielded Robert.
“So, you took a calculated risk, Mr. Smith,” pointed out Thomas.
“But Mr. Brown made an express statement!”
“What exactly did he say?” Thomas lowered his voice.
“Could you please repeated the question. I wasn’t able to hear you.” Jack Smith sounded flustered. The judge, in turn, took notes of the incident.
“Well Mr Smith, what exactly did Mr. Brown say?” Thomas raised his voice to its normal level.
“He said the mare was with fowl.”
“So now you can hear me,” noted Thomas. “Are you hard of hearing Mr. Smith?”
“I am not,” replied an irritated Jack Smith.
“I don’t see the relevance of this enquiry,” objected Robert.
“Mr Bardwell has demonstrated that Jack Smith’s hearing is not perfect,” observed the judge. I heard the question well when first asked. I’ll allow the record to stand unless you establish its irrelevance later on.” Turning to Jack he asked: “Mr. Smith, was the room noisy?”
“It was, rather,” conceded Jack Smith.
“And how many dealings have you had with Douglas Brown?” asked Thomas.
“None.”
“So how comes you know him well and have formed opinions about his gentlemanly character?”
“I have met him in clubs and have dined with him!”
“Very well,” conceded Thomas, adding firmly: “and how much did you bid for the mare, a mare you had not viewed or examined?”
“Three thousand dollars,” muttered Jack Smith.
“A very substantial amount of a man’s yearly income, isn’t it?”
“Not of mine,” protested Jack Smith. The judge, I noticed, raised his eyes from the notes he was taking. His annual salary, as we all knew, was in the vicinity of $10,000.
“And you started bidding without having a look at the alleged certificate waved by Douglas Brown?”
“True,” conceded Jack Smith.
“No further questions,” said Thomas and resumed his seat.
“You are satisfied Mr. Brown waved a certificate and alleged a veterinary had certified the mare was with fowl,” asked Robert, exercising his right of re-examination.
“He did indeed!”
“No further questions,” said Robert, adding: “this is the plaintiff’s case.”
Robert’s statesmen indicated that he had resolved to rest his case on Jack Smith’s testimony. If his allegations remained unchallenged, Jack was in a powerful position. Thomas Bardwell’s task was to refute them. He was ready to rise, when the judge looked at his watch. As it was mid-morning, his Honour called a 15 minute break.
The first witness produced by Thomas was John Hicks, a store man and administrative clerk of the sales house. He confirmed that all communications respecting the mare had been between himself and its owner. The documentation related to the mare were all in a file. At Thomas’s request he produced the file which was thereupon treated as record submitted to the court and marked Def1 [Def exhibit 1].
“Is there any document in Def1 which suggests the mare was with fowl?” asked Thomas.
“No.”
“No further questions”, said Thomas.
“Could a certificate attesting the mare was carrying be handed to the auctioneer just before she was put up?” asked Robert. The judge raised his eyes. The question called for the witness’s conclusion on matter unknown to him. It was therefore contrary to strict evidence rules. Thomas, though, did not raise any objection.
“I have no idea. Still, I was at the auction and would have taken a note and asked that the certificate by handed to me.”
“On what do you base your assertion?” Robert McBride let his irritation show.
“We follow certain procedures during auctions. If any statement made by the auctioneer is at variance with the catalogue description, we have the practice of recording it.”
“Don’t tell me you never depart from practices,” Robert sounded victorious.
“I have no recollection of having done anything like that for years,” John Hicks let his annoyance show.
“Can you be certain?”
“I am!” responded John Hicks.
Thomas did not find it necessary to re-examine. Instead, he put Douglas Brown on the stand.
“Mr Brown, did you make any statement about the mare when the bidding started?”
“I did,” answered Douglas turning to the judge.
“What did you say?”
“I read out a certificate, handed to me by John Hicks. It stated that one of the horses bred from her had won a minor race in Auckland.”
“Please look through the file, marked Def1.”
Obediently Douglas perused the file. I felt confident that Thomas had trained him well. When Douglas raised his eyes, Thomas asked directly.
“Did you make any statement about the mare carrying a fowl at the time of the auction?”
“I did not.”
“Did you wave any certificate and proceeded to sum it up for the attendants?”
“Only the certificate handed to me by John Hicks.”
“Are you certain there was no other certificate?” asked the judge.
“I am, you Honour.”
Robert’s attempts to shake or break the witness were futile. Douglas Brown stood his ground. I sensed that Robert was getting nowhere and, on top of it, was exhausted. Everyone in court, except himself, knew he had lost the case.
The proceedings were brought to their end by the judge. “I do not see the object of your line of questioning, Mr. McBride. The witness has made his position very clear.”
For the first time Robert looked deflated. “In that case, you Honour, I have no further questions.”
Thomas waived re-examination and, further, closed his case. All that was left, were the addresses to be made to the court by the counsel of the parties. Still, it was by then well past noon. The judge rose for the lunch break and advised that, unless the parties came up with a settlement, he would listen to their arguments when the Court resumed at 2.30 p.m.
Thomas Bardwell’s address was short. On the evidence, the ‘item’ was as described in the catalogue. He agreed that any misleading behaviour could lead to actions for misrepresentation or non-compliance with the Sale of goods Act. Here no such facts were established. To the contrary: the item put up for sale was described as a pedigree mare; and that was exactly what she was. The certificate on record did not establish that any incorrect description had been made. He asked that the action be dismissed with costs.
Robert address in return was complex. He asked the judge to accept the version put forward by Jack Smith. He then analysed a substantial number of authorities which established that, if a wrong statement had been made, the sales house and Douglas Brown were liable.
The judge took notes but looked only marginally interested. Then, unexpectedly, Robert raised a new point. Even if the facts were as alleged by the defendants, the contract respecting the mare was null and void as it had been entered into under a genuine mistake made by the plaintiff, Jack Smith.
Instantly, Thomas Bardwell was on his feet. He pointed out, vigorously, that to ‘mistake’ was not pleaded. Accordingly, this line of argumentation was precluded. Robert countered by an application to amend the pleadings. Thomas objected on the ground that this application was made at far too late a stage.
For a few minutes the judge wavered. Initially, he asked for further arguments on this point. Thomas was well prepared. Evenly but firmly he pointed out that the defendants should not be subjected to surprises. Justice in proceedings had to be observed. Then, as coup de grace, he cited a passage from Robert’s own book which suggested that an amendment could not be allowed once both parties closed their respective cases.
“In any event,” interceded the judge, “the plaintiff claims monetary compensation. Does an action based on a mistake support such a claim?”
“Not normally,” conceded Robert. “But if the mistake is linked to misleading dealings on the defendants part it can! In their absence it cannot!”
“In this case what is the basis for application?” asked the judge.
“An attempt to do justice!”
“Which can be done if the defendants were guilty of a misrepresentation,” chimed in Thomas. “And this very question before Your Honour even if no ‘mistake’ is added to the pleadings at the last moment and without warning.”
For a few more minutes the judge hesitated. Then he disallowed the application, pointing it could be raised if the case was taken further up. Robert retorted that, in the circumstances, he had nothing to add. Thomas in turn waived his right to have the last word.
“I’ll allow a coffee break,” said the judge. “I’ll deliver judgment when we resume in 45 minutes. All rose ad bowed.
When the judge returned, he went directly to the point. He found Douglas Brown’s evidence reliable and preferred it to Jack Smith’s. He held that no misrepresentation had taken place and that the mare was as described in the catalogue. The certificate on file reaffirmed her being of a good pedigree but did not state she was with fowl. His Honour did not accept that any other information was provided by the sales house or Douglas Brown. Accordingly, he dismissed the case and ordered that Jack Smith pay the defendants’ legal costs.
The parties, the lawyers and the few onlookers milled out of the courtroom. As I made my way into the street I ran in Thomas Bardwell. He grinned at me and observed, nonchalantly, that it had been a nice experience to cite Professor McBride’s book against his own application. I could not help nodding sympathetically.
“Weren’t you surprise he had not pleaded ‘mistake’ from the start?”
“No, I was not. They wanted to keep the mare and, in addition, get damages. Don’t you think this was too greedy?”
“The less said on the topic the better,” I told him and added: “But don’t tell me Robert was a poor teacher. I came over to enjoy his lectures. The class liked him!”
“So did I. He was a clear even if somewhat dogmatic lecturer. Still, his place is in the ivory tower. In the courtroom he is out of his depth.”
“You have a point there, Thomas,” I conceded and rushed off.
For the next few days I avoided Robert McBride. Twice I saw him on the mezzanine, checking books on the law of contract. I appeared best to return quietly to my office and to keep looking out of the window. The view was as fascinating as always. The harbour was beautiful. Still, the taste in my mouth was bitter. Robert had made a fool of himself and even failed to see what happened to him. If he ran into me he was bound to complain about the judge’s lack of understanding and the scoundrels in the sales house. I did not want to have to listen to such futile arguments.