Couchman v Hill


[1947] 1 All ER 103

Court of Appeal


The facts are stated in the judgement of Scott LJ.


Scott LJ


On December 15, 1945, the plaintiff purchased at an auction sale... a heifer, the property of the defendant, for the sum of £29. The heifer in question was... in the sale catalogue described as 'unserved.' There can be no question on the facts found by the county court judge but that, in the absence of some special agreement to the contrary, when the hammer fell the resulting contract was subject to the printed conditions of sale exhibited at the auction and to the stipulations contained in the sale catalogue. The latter document contained these words:

Note. - The sale will be subject to the auctioneers' usual conditions, copies of which will be exhibited. The auctioneers will not be responsible for any error or misstatement in this catalogue, or in the dates of calving of any cattle. The information contained herein is supplied by the vendor and is believed to be correct, but its accuracy is not guaranteed, and all lots must be taken subject to all faults or errors of description (if any), and no compensation will be paid for the same.


No. 3 of the printed conditions of sale was as follows:


The lots are sold with all faults, imperfections, and errors of description, the auctioneers not being responsible for the correct description, genuineness, or authenticity of, or any fault or defect in, any lot, and giving no warranty whatever.


On February 6, 1946, a six months old foetus was removed from the heifer in question, and on February 26 the heifer died as a result of the strain of carrying a calf at too young an age for breeding. There was no suggestion that at the time of the sale either the defendant or the auctioneer did not honestly believe that the heifer was unserved. On the other hand, the plaintiff's evidence, which was accepted by the judge, was that he would not have bought it had he had any reason to doubt the accuracy of the description as he required an unserved heifer for service by his own bull at a time of his own choosing.


So far it is, in my opinion, clear that the plaintiff, by reason of the stipulations in the catalogue and conditions of sale, would have had no remedy by way of damages for breach of contract or warranty against the defendant... [I]t is, in my view, impossible to say that the words 'the lots are sold with all faults, imperfections, and errors of description,' and the words 'and all lots must be taken subject to all faults or errors of description (if any), and no compensation will be paid for the same' are not to be incorporated as terms of the contract as between the vendor and purchaser when the hammer falls. Whether the word 'unserved' amounts to a warranty or a condition is immaterial, because it is, I think, clear that it was, in any event, an error of description and as such expressly protected by the words to which I have referred. For these reasons it appears to me that, in so far as the plaintiff relied on the statement in the catalogue to support his claim for damages for breach of warranty, he necessarily failed.

The plaintiff, however, also alleged in his further particulars as follows: 'The said warranty was also confirmed verbally both by the auctioneer and by the defendant on inquiry by the plaintiff prior to the sale.' As to this the county court judge has accepted the plaintiff's evidence which was to the effect that at the sale and when the heifers were in the ring he asked both the defendant and the auctioneer: 'Can you confirm heifers unserved?' and received from both the answer 'Yes.' There was no contract at that moment... There was no contract in existence until the hammer fell. The offer was defined, the auctioneer's authority was defined, but it was in law open to any would-be purchaser to intimate in advance before bidding for any particular heifer offered from the rostrum that he was not willing to bid for the lot unless the defendant modified the terms of sale contained in the two documents in some way specified by him. There is no doubt that the plaintiff did make some attempt of the kind in order to protect himself from the risk of buying an animal that was not of the kind described.


The real question is,: What did the parties understand by the question addressed to and the answer received from both the defendant and the auctioneer? It is contended by the defendant that the question meant 'having regard to the onerous stipulations which I know I shall have to put up with if I bid and the lot is knocked down to me, can you give me your honourable assurance that the heifers have in fact not been served? If so, I will risk the penalties of the catalogue.' The alternative meaning is: 'I am frightened of contracting on your published terms, but I will bid if you will tell me by word of mouth that you accept full responsibility for the statement in the catalogue that the heifers have not been served, or, in other words, give me a clean warranty. That is the only condition on which I will bid.' If that was the meaning there was clearly an oral offer of a warranty which over-rode the stultifying condition in the printed terms, that offer was accepted by the plaintiff when he bid, and the contract was made on that basis when the lot was knocked down to him...