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The horse in question had belonged to the plaintiff’s nephew, John Felthouse. In December, 1860, a conversation took place between the plaintiff and his nephew relative to the purchase of the horse by the former. The uncle seems to have thought that he had on that occasion bought the horse for £30; the nephew that he had sold it for 30 guineas [£31.50]. There was clearly no complete bargain at that time.
On the 1st of January, 1861, the nephew writes, ‘I saw my father on Saturday. He told me that you considered you had bought the horse for £30. If so, you are labouring under a mistake, for 30 guineas was the price I put upon him, and you never heard me say less. When you said you would have him, I considered you were aware of the price’. To this the uncle replies on the following day, ‘Your price, I admit, was 30 guineas. I offered £30; never offered more: and you said the horse was mine. However, as there may be a mistake about him, I will split the difference. If I hear no more about him, I consider the horse mine at £30/15s.’
It is clear that there was no complete bargain on the 2nd of January; and it is also clear that the uncle had no right to impose upon the nephew a sale of his horse for £30/15s unless he chose to comply with the condition of writing to repudiate the offer. The nephew might, no doubt, have bound his uncle to the bargain by writing to him: the uncle might also have retracted his offer at any time before acceptance. It stood an open offer: and so things remained until 25th Feb, when the nephew was about to sell his farming stock by auction.
The horse in question being catalogued with the rest of the stock, the auctioneer [the defendant] was told [by the nephew] that it was already sold. It is clear, therefore, that the nephew in his own mind intended his uncle to have the horse at the price which he had named, £30/15s but he had not communicated such his intention to his uncle, or done anything to bind himself. Nothing, therefore, had been done to vest the property in the horse in the plaintiff down to the 25th of February, when the horse was sold by the defendant.
It appears to me that…there had been no bargain to pass the property in the horse to the plaintiff, and therefore that he had no right to complain of the sale.
KEATTNG J: … the only question we have to consider is whether the horse was the property of the plaintiff at the time of the sale on 25th Feb. It seems to me that nothing had been done at that time to pass the property out of the nephew and vest it in the plaintiff. A proposal had been made, but there had before that day been no acceptance binding the nephew.
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