Hyman and Wife v. Nye and Sons

Hyman & Wife v. Nye & Sons

 (1881) 6 QBD 685

(breach of implied warranty, hiring)

Queen’s Bench Division, Lindley, J & Mathew, J.


  1. The defendant was a job-master at Brighton, letting out carriages and horses for hire.
  2. The plaintiff hired of him a landau, and a pair of horses, and a driver, for a drive from Brighton to Shoreham and back.
  3. After having driven some way, and whilst the carriage was going downhill and slowly over a newly mended part of the road, a bolt in the under part of the carriage broke.
  4. The splinter-bar became displaced; the horses started off; the carriage was upset; the plaintiff was thrown out and injured, and he brought this action for compensation.
  5. It was established at the trial that neither horsed nor the driver is at fault.
  6. No ordinary inspection by the defendant would have discovered the defect.
  7. Upon above two points the jury gave a verdict in the favour of the defendant.



  1. Trial judge did not sufficiently explain degree of care which the defendant was bound  to take and the jury were led to believe that the defendant was not liable for defects of which he knew nothing, and which were not discoverable by him by ordinary care and attention;
  2. The breaking of the bolt, under no unusual strain, rendered it incumbent on the defendant to show that the carriage when sent out was fit for its journey, and that the verdict on this point was against the weight of evidence, especially as the broken bolt was not produced.


  1. Plaintiff had in his statement of claim based his case on negligence on the part of the defendant, and not on any breach of warranty express or implied, and consequently could not recover in this action, at least, without amending.


LINDLEY, J (favoured the plaintiff)

  1. The standard of duty of care that was subjected to the defendant by the trial judge was too low.
  2. The duty of the plaintiff is to supply a carriage as fit for the purpose for which it is hired as care and skill can render it; and if whilst the carriage is being properly used for such purpose it breaks down, it becomes incumbent on the person who has let it out to show that the break down was in the proper sense of the word an accident not preventable by any care or skill (Why? The hirer trusts the owner to supply a fit and proper carriage). (The Judge here found fault in the argument of the trial judge)
  3. A carriage to be reasonably fit and proper must be as fit and proper as care and skill can make it for use in a reasonable and proper manner.
  4. Whether the plaintiff sues the defendant in tort for negligence or contract for the breach of an implied warranty, was wholly immaterial.
  5. The plaintiff’s pleadings would have been free from all objection if he had stated in his statement of claim that he hired the carriage of the defendant, and not merely that the plaintiff was lawfully in the carriage.

MATHEW, J (favoured the plaintiff)

  1. The essential part of the contract was the purpose and use, the time for which the article is intended to be used.
  2. The defendant let the carriage for the purpose of carrying the plaintiff safely. The plaintiff trusted him to select the carriage, horses, and driver, and there seems to me nothing unreasonable in charging the defendant with a duty which it was certainly in his power to fulfil, and which from his business he would be presumed to have bound himself to take the proper steps to perform strictly.



How does this case differ from Section 150 of the Indian Contract Act?

According to the second paragraph of s.150 of the Act, in case the goods are bailed for hire, the bailor is responsible for damage whether or not he was aware of the existence of any faults, latent or apparent, in the goods bailed. The judgement in this case, on the other hand, clearly exempts the bailor from all liability if the defect in the goods bailed was latent and would not have been discovered by ordinary care and diligence.

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