cae80/45 HL B Dew, Gor, Print, Melb, = IN THE HIGH COURT OF AUSTRALIA REASONS FOR JUDGMENT WHITBREAD __v._ __ REYNOLDS ORDER. Allow te appeal with costs. Discharge so much of the judgment of the Supreme Court as orders that there be no grder as to costs and adjudges that the plaintiff's claim for the value of the horses Watajoke and Alfred or the sum of £610 and for damages be dismissed. In lieu thereof direct that there be a new trial of the action confined to the issues raised by so much of paragraph 3 of the Statement of Claim as relates to the horses Watajoke and Alfred, by paragraphs 4 and 5 thereof and by the defence to that part of paragraph 3 and to paragraphs 4 and 5 aforesaid and by the joinder of issue thereon in the reply. Order that the costs of the former trial be plaintiff's costs in the cause. REASONS FOR JUDGMENT. WHITBREL REYNOLDS ITATHAM Code REASONS FOR JUDGMENT. THAM WHITBRESD___v REYNOLDS . The appellant H.D. Whitbread was the plaintiff in an action against the respondent T.H. Reynolds in which the plaintiff claimed delivery of a race-horse Charm Gold and the proceeds of the sale of two other racehorses Alfred and Watajoke. The case was tried before Dwyer C.J. and the plaintiff succeeded with respect to Charm Gold but failed with respect to Alfred and Watajoke. The plaintiff appeals to this court against the decision in respect of the latter two horses. The appeal raises questions of fact only. The learned trial judge in his reasons for judgment said that he was unable "to give credence to either of the opposing stories of the liti- gating parties" and expressed satisfaction that they had both been disqualified by the racing authorities by reason of the transac- tions with respect to the horses in dispute in these proceedings. The decision in favour of the plaintiff on Charm Gold and against him on the other two horses was based upon His Honour's judgment of the credibility of certain parts of the evidence and upon the general circumstances attending the transactions between the parties. The horses at the time the action was brought were registered for racing purposes in the name of the defendant Reynolds, but His Honour accepted the evidence of the plaintiff that in 1936 one Frank Rennie bought (from the estate of his father Richard Rennie) Becharm, the dam of all the horses concerned, together with Charm Gold, then of racing from having any interest in race horses. He relied upon this fact to explain the registration of the horses first in the name of Frank Rennie and subsequently in the name of the defendant. With respect to Charm Gold, his story that Mrs.Rennie was at least a | part / part owner of the horse was supported by the fact that stakes won py the horse were paid to Mrs. Rennie and were not retained by Reynolds. The plaintiff gave evidence, which was believed by the learned trial judge, that Mrs. Rennie gave him her share in the horse. Mrs. Rennie made no claim to Charm Gold, The evidence of the plaintiff that when Charm Gold won a race in 1945 the prize money was paid to the plaintaft (though the horse was registered in the name of the defendant) was also believed by the learned trial judge. Another horse, Two Jokes (the sire of Watajoke) was also registered in Reynolds' name, but when the horse was sold the proceeds were paid to Whitbread. These and other facts supported the claim of the plaintiff that although Charm Gold was registered in the name of Reynolds the horse really belonged to him, Whitbread. Accordingly the plaintiff succeeded in his action with respect to Charm Golde The appeal relates to two other foals of Becharm, Alfred and Watajoke. Becharm was not a racing horse, but a brood mare, and Reynolds had a property at Wonnerup, upon which horses were agisted and upon which Becharm and her foals grazed. Whitbread, the plaintiff, had stables at East Fremantle. Becharm, according to the documents, was transferred by Frank Rennie's executor after his death in 1940 to the defendant Reynolds, When Frank Rennie died in 1940 a letter was written by the Branch Manager of the Trustee Company, one George Thompson, in which reference was made to Becharm and Alfred, (Watajoke was not foaled till October 1942.) With respect to Becharm and Alfred, the letter stated that Reynolds did not actually wish to purchase the mare, but that he had made an offer for the mare, colt (BoLeto, which died) and foal (Alfred) of £30 and would not make any charge for paddocking. The letter contains a statement that Whitbread, the plaintiff, had advised the Trustee Company that, as far as the mare was concerned, Reynolds did not want it, and the letter proceeded to say that Whitbread "thinks that if any of the family want the mare Mr. Reynolds would give her to them". This letter was written by the Branch / 3. Branch Manager in the presence of and in conjunction with Whitbread. Its terms (if taken as true) afford strong support for Reynolds! claim that the mare and the colt Alfred, which was one of the two colts which she then had, were then actually sold to him. The letter assumes, in the reference made to Reynolds being willing to give the mare to any of thefamily, that if the contemplated transaction went through, the mare would belong to Reynolds, The plaintiff sought to explain the letter by reference to the fact that he, the plaintiff, had to conceal his ownership of race-horses. The learned judge, however, who Saw the witnesses, was of opinion that the letter truly stated the facts. Some detailed evidence was given by an employee of Reynolds with respect to the provision from Reynolds' own money of £30 as purchase money for Becharm and Alfred. His Honour was of opinion that this evidence afforded some corroboration of Reynolds! story. It was not absolute corroboration because the statement that the £30 was to be used for the purchase of a mare was only a repetition of what the employee said Reynolds told her. But it was, as the learned judge says, something by way of corroboration of the defendant Reynolds' account of the transaction. The owner of Becharm (it cannot be disputed) was also the owner of the foal Watajoke. As already stated, Reynolds assumed that he would be entitled to deal with Becharm as his own after the transaction with Frank Rennie's executor, and the quotations made from the letter of December 1940, prepared as it was in the presence of the plaintiff and with his assent, show that (if the letter is taken to be truthful) the plaintiff accepted that that would be the true state of facts. I do not see how the plaintiff can succeed as to Alfred and Watajoke if that letter is accepted (as the learned judge did accept it) as true. There was much direct conflict of evidence. Many of the documents in the case were prepared for the purpose of misleading racing authorities. There is, I agree with my brother Dixon, a slip in / 4. in the reasons for judgment in attributing to the plaintiff one piece of evidence given by 'the defendant. But this is only one of a number of matters relied upon for rejecting the plaintiff's claim in respect of Alfred and Watajoke. There was much confusion in the evidence. This confusion was aggravated by the fact that acts done by Reynolds (e.g. registration of horses in his own name)were done on behalf of other persons, e.g. Whitbread (in respect of Charm Gold and Two Jokes) or Frank Rennie or his brother (in respect of other horses} and that the identity of those other persons was deliberately concealed. This was proved in the cases mentioned, but Reynolds satisfied the court that it was not so in the case of Alfred and Watajoke. The onus was on the plaintiff to prove his case. It is plain that one or other of the parties was lying in the evidence which he gave. There is little in the way of independent evidence by which the oral evidence can be tested in a court of appeal. I can find no sure ground for holding that the learned trial judge should have believed Whitbread as against Reynolds in respect of Alfred and Watajoke. The learned judge had to decide who was speaking the truth. He was not able to believe Whitbread on this issue. That was sufficient to justify the dismissal of his claim. But the learned judge was able to believe Reynolds in a story which was not. inherently incredible and which had some slight degree of external support. In such a case as this so much necessarily depends upon the demeanour of the witnesses and the view of their character and veracity taken by the learned trial judge that his decision should be reversed only upon clear and convincing demonstration that his conclusion was wrong. There is, in my opinion, no such demonstration in the present case. The appeal should be dismissed, ITBR! ve OLDS . IODGMENT. DIXON J. DIXON J. This is an appeal from a judgment of the Supreme Court of Western Australia in an action of trover and of detinue. The plaintiff, who had been a jockey, but is now disqualified, claimed that he was entitled to three race horses named respectively Charm Gold, Alfred and Watajoke. The three horses had been in the possession of the defendant, but he had sold Alfred and Wata- joke. He retained possession of Charm Gold. The action was tried by Dwyer C.J., who found that the plaintiff was the true owner of Charm Gold, but not of Watajoke and Alfred. He accordingly gave judgment for the plaintiff for the delivery to him of Charm Gold and dismissed his claim for damages for conversion in respect of Alfred and Watajoke, making no order as to the costs of the pro- ceedings. From the dismissal of his claim against the defendant for conversion of Alfred and Watajoke the plaintiff now appeals. In the register of the Western Australian Turf Club the three horses stood in the defendant's name. The plaintiff's case is, however, that they were registered in the defendant's name as owner, not because they were his, but only because the plaintiff was a jockey and, under the rules of racing, ought not to have owned a race horse, The three horses were foals of a mare named Becharm. Becharm herself was foaled in September 1930. She became the property of a race horse owner named Richard Rennie, who died on 20th November 1936. Charm Gold was foaled in September 1936. At the time when Richard Rennie died, the mare with the foal at foot had been entered for a sale to take place on 30th November 1936. The sale was held by A.E. Cockram at Belmont race course. Notwithstanding the death of the owner, the 'mare and foal were allowed to stand in the catalogue, but they were passed in unsold. Richard Rennie left him / 2. him surviving two sons who were interested in racing, Richard Edward Rennie, a man approaching middle-age, and Frank Rennie, who was not more than thirty. Both brothers were at the sale. According to the evidence of the plaintiff, when Becharm and the foal, afterwards named Charm Gold, were passed in, he and Frank Rennie arranged that Frank Rennie should buy the mare and foal for Frank Rennie's wife and the plaintiff, who were to own them in equal shares, The sale was agreed to. The price was £25 and the plaintiff paid his share. The arrangement was that Frank Rennie should be registered as owner, The plaintiff would see to the training of the foals and Frank Rennie would pay half the expenses. This evidence was confirmed by Richard Edward Rennie and by the former manager of the Fremantle branch of the Trustee Co., Thompson. In the following year, on 27th November 1937, transfers from the executors of Richard Rennie to Frank Rennie of Becharm and of her colt foal were registered. On 6th September 1938 Frank Rennie as owner registered the colt under the name of Charm Gold, The plaintiff, although a jockey, conducted training stables, which apparently belonged to Frank Rennie. After his death the plaintiff bought them, The defendant says that the purchase was made with money borrowed from him; the plaintiff says that he used the defendant's cheque, for which he paid, so as to be able to say that the defendant was the buyer. The defendant was a hotel-keeper at Busselton. He owned a grazing property named Wonnerup. In Frank Rennie's life-time Becharm and her foal Charm Gold were sent to this property. Accord- ing to the defendant she was sent there about the middle of 1937 or a little later with Charm Gold at foot and was afterwards removed but sent back with another foal at foot early in 1940. tall events Charm Gold was brought in as a two-year-old and trained at the stables which the plaintiff conducted and ultimately bought. The defendant raced horses and had them trained at the plaintiff's stables. He said that at different times he had six or seven horses there. The plaintiff also rode for him'as a jockey. On 7th August 1939 Frank / 3. Frank Rennie signed a transfer of Charm Gold to the defendant and the transfer was registered by the Turf Club. Dwyer C.J. has found that this transfer, although professing to be a transfer by way of sale, was not made to Reynolds beneficially. The horse was merely placed in his name. Indeed, even before the formal transfer was made and registered, the defendant's name had been employed for the purpose of racing Charm Gold, for the horse was entered in the name of the defendant as owner for a race to take place at Goodwood on 22nd July 1939. It seems curious that this should have peen done before the date of the transfer. In the meantime Becharm foaled another colt. The colt was foaled on 5th October 1939, sired by Sansofine. He was afterwards called Boleto. Early in 1940 the mare and her foal were sent to Wonnerup by Frank Rennie, who arranged it with the defendant. There she foaled a third colt on 3rd October 1940, sired by Camelhair. This colt was afterwards called Alfred. On 20th October 1940 Frank Rennie died. Two years or so pefore his death he had bought another colt which was named Two Jokes. Though all the oral evidence on both sides is to the effect that it was Frank Rennie who was the purchaser, the horse was regis- tered in the name of his brother, R.E. Rennie. 0n 13th July 1938 R.E. Rennie applied for registration of the name Two Jokes, and described himself as owner. The plaintiff gave evidence that Frank Rennie and he bought Two Jokes in Frank Rennie's name at an auction sale as an unnamed foal, that Frank Rennie bought it for his wife and for the plaintiff in equal shares, that he, the plaintiff, paid Frank Rennie his share of the purchase money, and that after his death he bought the share of Frank Remie's widow in the horse from her, But,according to the plaintiff, in 1939, before Frank Renniets death, the plaintiff arranged with the defendant that the latter should become registered as nominal owner of Two Jokes. This was done because both Frank Rennie and his brother desired no longer to race horses in their own nameo on / 4a. On 21st Spril 1939 a transfer of Two Jokes by way of sale was presented for registration to the Turf Club. The transfer was by R.E. Rennie to the defendant. The defendant denied that the transfer was to him as a nominee only and claimed that it was in fact made pursuant to a sale. Two Jokes is not one of the horses claimed in the action, but,as a matter of evidence, his history is indispensable to the case. From the foregoing narrative it will be seen that the position of affairs at the death of Frank Rennie was as follows. The mare Becharm was running upon the defendant's property, Wonnerup. Charm Gold was being raced in his name and he was registered as the owner of that horse, The two foals, Boleto and Alfred, were running on his property, but were unregistered. He was registered as the owner of Two Jokes, and that horse was being raced in his name. Two Jokes and Charm Gold were being trained under the plaintiff's supervision at the stables he conducted. According to the plaintiff's case Becharm and Charm Gold belonged to himself and Mrs. Rennie in equal shares, and so did the two other foals of Becharm as her trogeny.? Pao sokes ease" thet belonged to him and Mrs. Rennie in equal shares. According to the defendant's case he had bought Charm Gold and Two Jokes from Frank Renn 4°, Soi eto/iia not survive to become a subject of this action. The plaintiff gives in effect the following account of what occurred after the death of Frank Rennie. He went to the latter's widow for the purpose of buying her interest in Becharm and the two foals, that is Alfred and Boleto. Before he did so he went to Thompson, the manager of the Fremantle branch of the Trustee Co., which was executor of Frank Rennie's will, as well as of Richard Rennie's will, and sought and obtained his approval. The horses had not been included in Frank Rennie's probate statement. The plaintiff said that he was not interested in the mare, Becharm, but that he wanted the two foals. He says also that he arranged the purchase of the widow's interest in Two JoBes, apparently at the same time. He first obtained the defendant's permission to paddock the animals / De animals in his farm and to use his name as registered owner. He bought Mrs. Rennie's interest in Becharm and the foals for £30 and he paid the same amount for her interest in Two Jokes. He then obtained from the branch manager of the Trustee Co. a transfer of Becharm and the two colt foals, afterwards named Boleto and Alfred, to the defendant. The transfer to the defendant was dated 6th January 1941 and was expressed to be a transfer on sale made as from Frank Rennie by his executor, viz. the company, and it was signed by the branch manager, Thompson. The horses transferred were described as the brood mare Becharm and a chestnut colt one year by Sansofine and a chestnut colt foaled by Camelhair. The transfer was registered with the Turf Club. On 22nd May 1941 the defendant applied to the Turf Club for registration ofthe name Boleto for the first of these colts, describing himself as full owner, On 23rd Gctober 1942 Becharm foaled another colt, sired by Two Jokes. This colt was afterwards named Watajoke. On 28th June 1943 the defendant applied to register the name Alfred for the second of the two colts mentioned in the transfer, again describing himself as full owner of Alfred. On 5th May 1945 he applied to register the name Watajoke for the colt by Two Jokes. He described himself as full owner. The defendant told a story entirely at variance with the the manner in which plaintiff's as to/Charm Gold, Two Jokes, Becharm and her two colts and also Watajoke came to stand in the register in his name as owner. To begin with Charm Gold, the defendant says that during his life- time Frank Rennie brought the mare Becharm to his property having at foot the foal afterwards named Charm Gold. That was in 1937. Subsequently Frank Rennie asked him to take over Charm Gold for the paddocking expenses owing for Becharm and her foals. These expenses then amounted to £50. Frank Rennie signed the transfer and the defendant branded the colt with his own brand, but sent it to Rennie's stables to be trained by the plaintiff. As to Two Jokes, he said that he had bought that colt from Frank Rennie partly for cash and partly for a release of paddocking fees. The transfer from R.E. Rennie / Rennie simply gave effect to the sale. As to Becharm, Boleto and Alfred, the defendant says that after Frank Rennie's death the plaintiff came to see him and asked him to buy Becharm and the two foals for £70, saying that they belonged to Mrs. Rennie. He replied that the price was too high, and after some talk the plaintiff said he thought he could get them for £30 clear if he, the defendant, waived all paddocking fees. The defendant said that he agreed to pay that, but told the plaintiff he was not interested in Becharm., The plaintiff left him to see if the price and terms would be accepted, and later came down again to Busselton and asked for £30 to complete the deal, which the Gefendant gave him in cash. He called as a witness his house- kkeeper, who was also his bookkeeper and she confirmed the payment of £30 from the cash box. The defendant claimed Watajoke simply as a foal of Becharm, his mare, by Two Jokes. . Thompson, the branch manager of the Trustee Co., was | called as a witness for the plaintiff and said that Frank Rennie had told him that the plaintiff owned a half interest in Becharm and her foals, afterwards named Boleto and Alfred, and in Charm Gold and Two Jokes, that after Rennie's death the plaintiff wanted to buy out Mrs. Rennie's interest, but said he could not hold the horses in his own name. Thompson said that the plaintiff therefore went to Busselton and back and then made an offer of £30 for Mrs. Rennie's half interest in Becharm and the two foals, and that' he, Thompson, understood that the offer was for the plaintiff himself. The plaintiff undertook there would be no charge for paddocking. The witness wrote a letter, in which he used Reynolds' name as the party purchasing. He said that although he did so he thought the offer was in reality the plaintiff's. The letter, which was mwh relied upon by the defendant, was written by the manager to R.E. Rennie as a member of the family. Thompson said that it was written in the presence of the plaintiff. It was erititled as in the estate of Frank Rennie deceased. It informed R.E. Rennie that the plaintiff had seen the defendant at Busselton as promised. It said that the defendant, as R.E, Rennie was aware, had / 7. had had the mare Becharm and the foals, Boleto and Alfred, on his property for some considerable time. It then went on to say that he did not actually wish to purchase the mare, but had made an offer for the mare, colt and foal for £30, and would not make any charge for paddocking. The writer says that he would be glad of R.E. Rennie's advices as to his opinion in respect of the offer. The letter then goes on to state that the plaintiff thought that if any of the family wanted the mare Becharm the defendant would give her to them. The gelding Charm Gold, the writer says, is not part of Frank Rennie's estate, and is being leased by the widow to the defendant. But the letter than proceeds to confuse this gelding with the mare Becharm. The mare was at that time ten years old. Yet the lettex says that the plaintiff pointed out that if the mre is raced and proves successful then, besides obtaining the winnings, there will also be prospect of a reasonable price in the event of a sale. Whether this is a confusion as to the sex of the gelding or the age of the mare, it shows that the writer misunderstood the transaction. Another common thing is the distinction apparently drawn between Charm Gold and Becharm together with her foals. The letter seems to imply thatthe mare and her foals are part of Frank Rennie's estate. Yet the probate statement filed did not include them, and Thompson, R.E. Rennie and the plaintiff, all gave evidence to the contrary. The mexe fact that the letter was written in the plaintiff's presence would mot make it admissible against him. It would be necessary to show that he was aware of its contents and acquiesced in what it stated. But,in any case, if the defendant were a nominee or dummy in the proposed transaction, it might be expected that in a business Btter on the company's behalf Thompson would keep up the pretence that he was the party principal even in writing to R.E. Rennie. According to the plaintiff, in 1944 Frank Rennie's widow "gave" him her share in Charm Gold, which no doubt means that she expressed an intention of imparting her half interest to him and left him in possess-ion or control of the animal. Of course registration with the Turf / t 8. Turf Club of the defendant as owner would not affect the legal title to the horse. In 1945 Charm Gold was leased to one Gleeson, the document being drawn in the name of the defendant. He won a race and the plaintiff received the owner's share of the stake from Gleeson, for himself, so Dwyer C.J. held, rejecting Gleeson's explanation. The financial relations between the plaintiff and defendant, although gone into to some degree, were certainly not unravelled by the evidence. Little guidance through the conflict of testimony can be obtained from what the parties claim or admit on the score of their monetary dealings. They covered riding fees, betting transactions and loans as well as the liabilities growing out of the training of the defendant's horses by the plaintiff, and the supply of fodder and the agistment of the plaintiff's horses by the defendant if any charge for agistment were included. But in 1945 Two Jokes was sold for £225. The defendant received the money from the stock agent but paid it to the plaintiff, in whose bank account the amount appears, The defendant made an explanation, but Dwyer C.J. did not accept it. In February 1946 the plaintiff says that the defendant claimed a half share in Watajoke, and suggested he would take Alfred instead, i but this the defendant denies. Some two or three months earlier there had been a breach between them. It arose over the plaintiff's riding or the like. On 20th May 1946 the defendant wrote to the plaintiff telling him that he had decided to put Alfred and Watajoke into a sale to be held on 17th June, and asking him to arrange for a float to carry Watajoke to the place of sale. This produced a written answer from the plaintiff, but one very ill-composed and difficult to follow. It contains no direct claim to ownership of the 'horses, The two horses were sold_ for £610, the amount claimed in conversion. The plaintiff says that in effect he was in a cleft stick because he would be disqualified if he asserted his ownership, and therefore could do nothing to contest the defendant's claim. In the event after an enquiry held in March 1947 the Turf Club did disqualify him for, among other things, owning Two Jokes. Dwyer / 9e Dwyer C.J. concluded that Charm Gold did belong to the flaintiff and, as I follow it, Two Jokes also. He rejected the defendant's story of the purchase by him of these horses for 4 consideration in the one case consisting of the release of paddocking fees and/the other for a consideration that included such a release. His Honour begins by referring to the plaintiff's claim that Frank Rennie bought the horse and its dam for his wife and the plaintiff, and he speaks of the claim having contemporary support from outside evidence. Though nowhere does His Honour expressly accept the flaintiff's account of how he acquired his interest in Charm Gold, it is difficult to see any foundation in the evidence for the plaintiff's claim to Charm Gold which succeeded, except his story that when Frank Rennie bought Becharm and her foal it was for the plaintiff as to a half interest, and for his wife, or possibly for himself as to the other half interest. When, however, His Honour turns to the other two horses, Alfred and Watajoke, after referring to the registration of Becharm in Frank Rennie's name at the time of his death he proceeds to say that the only doubt cast on his ownership is the plaintiff's claim that the real ownership was in the plaintiff himself and Mrs. Rennie. His Honour then says "But I do not accept his story of the arrangement regarding Becharm", The reasons which immediately ensue distinguish between a colt that will or may race and a brood mare. In the winnings of the former Mr. Rennie might share, Then it is pointed out that there was no transfer into another name before Frank Rennie's death, that is at the time when the horses about to race were transferred to the defendant. If this means that the plaintiff's story about the pur- chase by Frank Rennie of the mare with the foal at foot for his wife and the plaintiff equally may be correct as to the foal but not as to the mare, it would seem to m to be a view _very difficult to support. At the time Charm Gold was an unnamed colt only two months old. As he became a two-year-old Frank Rennie registered him in his own name. It was only in 1939 that the Rennies decided not to race in/ 10. in their own name and it was in August 1939 that Frank Rennie transferred Charm Gold to the defendant. The story as to the purchase in 1936 of the mare and foal seems to me to stand or fall as one. But I amnot certain that Dwyer C.J. does mean to accept the story as to the foal and reject it as to the dam. His Honour goes on to speak of the need of realizing Becharm and her two foals (Boleto and Alfred) and of its being natural for the Trustee Co. to consult the plaintiff. He says that they were claimed as estate assets. But in fact they were not included in the probate inventory or statement and, unless the letter I have discussed of 5th December 1940, written by Thompson, wasin His Honour's mind, there is nothing to suggest that they were considered by anybody to be part of the estate. Then the following passage occurs in the judgment:~ "They were sold and he made no claim. Now the question is; Who was the real buyer? Whitbread.says he was, that / they were put under offer to him at the price of £70, that J he went to Reynolds and asked Reynolds to buy them in his name for him (Whitbread), that in discussion Reynolds raised the question of agistment fees, and that ultimately an agreement was made that Reynolds should so buy, and the price should be £30 plus release of the agistment fees." It is not easy to apply the statement that the animals were sold and the plaintiff made no claim: for the plaintiff's case is that it was a sale by Mrs. Rennie of her half interest to him as the owner \of the other half interest. Then what follows attributes the defendant's evidence to the plaintiff. It is the defendant's evidence that the plaintiff asked him for £70. The plaintiff's evidence is to the contrary and there is nothing about an offer of the mare and foals at £70 being made to him. The price was £30. Again it is the defendant, not the plaintiff, who speaks of the question of agistment fees, These mistakes are material, for His Honour, in criticising the plaintiff's supposed evidence sayst- "...it is obvious that if he had wished to become the owner, there was no reason why he should not buy at £70 at once, or £60 or whatever he thought a proper price was." The / 11. The judgment goes on to attach importance to the letter as making it obvious that the plaintiff was the real party to the transaction. It is treated as "a statement made at the time with plaintiff's full concurrence". The evidence does not go as far as that and the mistake as to the mare would hardly have passed the plaintiff unnoticed if the letter had been read to him. The letter is of course a piece of evidence which might be used with force in cross-examining Thompson. But to my mind it is not by any means inconceivable that _ in such a letter Thompson would adopt and maintain/the fiction that the defendant was to become the owner, when it had been arranged that the defendant should lend his name to cover the jockey. The personal credibility of neither party was high, and it would indeed be rash to decide the case on the faith to be placed in any of the testimony as such. In fact Dwyer C.J. did/base his conclusion upon the credibility of the witnesses but on reasoning from probabilities. It is said that for this reason, an opposite reason to that more commonly advanced, the appellate court is in as good a position to decide upon the transcript of the evidence as if that Court had heard the witnesses. That I cannot think to be so. But it is evident in the present case that there has been a mis- apprehension of the evidence concerning the central transaction on which the case turns, and that it has had serious consequences. Moreover, there appears to me to be an inconsistency in the view of the facts which form the foundation of the claim to the horse Charm Gold when applied to that horse and of the same facts when applied to the mare Becharm, It was of course quite open to the learned judge to disbelieve Thompson's evidence and R.E- Rennie's evidence and for all that appears there may have been good grounds for doing so. But the evidence of one or other or both of these witnesses meets many of the reasons contained in the judgment for dismissing the claim in respect of Alfred and Watajoke, and we have not the advantage of a stateme: ¢ _not_th 4 ny nt of His / His Honour's view of that evidence. That of course would not be of mich importance, if it were not for the other difficulties to which I have referred. An appellate court cannot rid itself of its responsibility of reviewing decisions on questions of fact. In fulfilling its duty it is guided by principles which have been often stated and I shall not make this an occasion of restating them. It is enough to say that when a court of appeal is satisfied that the prinary decision has been reached as a result of material error, misapprehen- sion or misunderstanding or involves any important inconsistency it is bound to reconsider the facts for itself if it is in a position to do so. In the present case I do not think the decision of the Supreme Court can stand. But after a full examination of the record I find myself unable to think that it is a case in which, on the materials the record contains, this court, deprived as it is of the advantage of seeing and hearing the witnesses, could safely proceed to form its own conclusions as to the ownership of the two horses still in question and to give effect to those conclusions. I think that there should be a new trial upon the claim for conversion of Alfred and Watajoke. The costs of the former trial should in my opinion be made plaintiff's costs in the cause. I would allow the appeal with costs; discharge so much of the judgment of the Supreme Court as orders that there be no order as to costs and adjudges that the plaintiff's claim for the value of the horses Watajoke and Alfred or the sum of £610 and for damages be dismissed and in lieu thereof direct that there be a new trial of the action confined to the issues raised by so mich of paragraph 3 of the statement of claim as relates to the horses Watajoke and Alfred, by paragraphs 4 and 5 thereof, and by the defence that part of paragraph 3 and to paragraphs 4 and 5 aforesaid and by the joinder of issue thereon in the reply. WHITBREAD Ve REYNOLDS JUDGMENT MCTIERNAN J. esutvesicemoittmnnnctinnereer sine AN WHITBREAD Ve REYNOLDS HCTIERNAN J. The fects which each party sought to prove at the trial have been already set out in detail. The appellant asks this Court to reverse the finding of Dwyer C.J. on the issue of the ownership of Alfred and Vatajoke. The respondent does not appeal against His Honour's finding that the appellant was the true ouner of Charm Gold although he contested this issue at the trial. Dwyer C.J, expressed the view that neither the plaintiff nor the defendant was a witness of any credit. Gounsel for the appellant admitted that he was handicapped by that matter and that he led the onus of convincing the Court that the finding of DwyerC.J, with respect to Alfred end Watajoke was wrong. Appellant's Counsel argued that this finding was inconsistent with His Honour's finding that the appellant was the owner of Charm Gold and that as the letter finding is to be presumed to be right. the former finding is necessarily wrong. I think that the matter is not as simple as this argument appears to make it. Dwyer C.J, relied upon facts and circumstances, proved in evidence, which related more particularly to Alfred and Watajoke than to Charm Gold. These three horses were foaled by Becharm. The ownership of Becharm determined the ownership of Alfred and Watajoke but not necessarily of Charm Gold. It was older than the other two horses and was coipeting at material times in races, It was open to the learned trial judge to infer from established facts that the ownership of Charm Gold did hot continue to be identical with that of Becharm, which was a brood mare, But it is evident from the transcript that in summing up the evidence, which was difficult to disentangle, the learned trial judge confused the evidence given by the respondent with the evidence. given by the appellant on the very material question of whether the respondent or the appellent bought Becharm and the foals after Frank Rennie's death. That evidence in the mouth of the appellant was regarded as an improbeble story, and the respondent obtained the benefit of this unfavourable view, although it was mot sn accurate version of the appellant's evidence. The question of whether the letter of the Manager of the Trustee Company was confirmatory of the case of either party was considered only in relation to the respondent. Counsel for the appellant strongly relied upon the attribution of the respcendent's evidence to his client as a iiaterisl misdirection, I think it was. But I cannot agree with appellant's Counsel thet this Court should hold that the evidence in the case clearly proved that the appellant was the owner of Alfred and Watajoke. Ghe proof depends upon the oral evidence as well as upon documentary evidence: a Court which has not the edvantaze of seeing and hearing the witnesses could not hope to reach a right conclusion on the contested issue in this appeal, especially in a case of the conplexity of the presemt one. But in view of the misdirection, I think that it would be just to order a new trial on the issue of the ownership of Alfred and Vatajoke. The costs of the first trial siould be plaintiff's costs in the cause. I should ellow the appeal with costs.