Bruen v Bruce (Practice Note)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE HODSON,LORD JUSTICE MORRIS |
| Judgment Date | 28 April 1959 |
| Judgment citation (vLex) | [1959] EWCA Civ J0428-1 |
| Court | Court of Appeal |
| Date | 28 April 1959 |
[1959] EWCA Civ J0428-1
In The Supreme Court of Judicature
Court of Appeal
Lord Justice Hodson
Lord Justice Morris and
Mr. Justice Pilcher
Mr. IAN PERCIVAL and Mr. DAVID WILD (instructed by Messrs. T.D. Jones & Co., Agents for Messrs. Tearle & Herbert Jones, Luton) appeared on behalf of the Appellant the first Defendant.
Mr. MICHAEL HOARE (instructed by Messrs. Llachin & Co.) appeared on behalf of the Respondent Plaintiff.
The Respondent the second Defendant did not appear and was not represented.
: I will ask Lord Justice Morris to deliver the first Judgment.
In March of last year the Plaintiff in the action now under appeal, Llr. Bruen, owned two motor cars. He was in the habit of letting out those cars on hire for reward. That was not his main occupation in life, but it was one that he pursued in addition to regular employment. He took one of his two cars to a garage to have certain work and repairs done. That was the garage belonging to a Mr. Bruce, whom I will call the first Defendant. Work was done on the car, and then the first Defendant let out the car on hire to a Mr. Salisbury, the second Defendant. That was done on a Wednesday in March of last year. On the following day, the Thursday, the second Defendant, while driving the car and as a result (as was found) of his negligence, caused very serious damage to the car: it became only of scrap value. The Plaintiff thereupon brought an action against both Defendants. He said, in effect, "You, the first Defendant, have wrongly passed over my car to the second Defendant, and you, the second Defendant, have very seriously damaged my car". There were claims as between the first and second Defendants. In the result, the learned Judge gave judgment for the Plaintiff for a sum of £360: he gave judgment against both Defendants. The first Defendant now appeals to this Court; and we are not concerned with the Orders that were made as between the first and second Defendants.
Now originally there were two points taken by the first Defendant. One was: he said, "Oh, but I had the general authority of the Plaintiff - who I knew hired out his cars - to make a contract as an agent on his behalf, and the arrangements that I made with Mr. Salisbury I made pursuant to that general authority". That contention wholly failed; and indeed it was conceded, and I have no doubt entirely properly conceded, in the course of the hearing before the learned Judge, Judge Lawson Campbell, that that point could not be sustained.
There remained but one point so far as concerns the matters with which we are now dealing. The first Defendant said: "Oh well, when I told you, the Plaintiff, of what I had done, namely, that I had purported to make a contract as an agent on your behalf, you ratified what I had done and therefore you cannot claim against me". The matter was pleaded, and very clearly pleaded, by the first Defendant in these words: "The Defendant will contend at the trial that the delivery by him of the Plaintiff's said motor car to the second named Defendant as aforesaid was by way of hiring with the authority of the Plaintiff or alternatively that the Plaintiff was so soon thereafter as practicable informed of the said delivery and hiring and agreed and concurred therein and thereby ratified the said hiring".
Now it seems to me that when one is considering whether a contract was ratified it is helpful in the first place to know what it is said the contract was and what were its terms. Mr. Percival, arguing on behalf of the first Defendant in support of this appeal, has submitted to us that what may be extracted from the evidence is that the contract made between the first Defendant and the second Defendant was to this effect: that there was to be a hiring of the car by the second Defendant; that the contract was made on the Wednesday to which I have referred; that the second Defendant needed the car in order to drive to Oxford and back; that the second Defendant was to start for Oxford on the 20th Ivlarch; that no terms in regard to the cost of hiring were agreed, but that there was an implied promise on the part of the second Defendant to pay reasonable sum; that no terms were agreed as to the duration of the hiring; and that nothing at all was said about insurance, the inference being that the second Defendant would have to provide his own insurance of the car in the event of its appearing that the car was not insured. It would seem that a good many matters on that footing remained to be finally arranged, although, as Mr. Percival submits, there would be no difficulty in the recovery of a reasonable sum for the hiring if action had to be brought.
But I need say no more in regard to those terms, for the real question that arose at the hearing, and the real question that has been raised on appeal, is whether or not the Plaintiff did ratify any contract that may have been made. It is, I think, essential to see what was the ratification alleged; and this is what the first Defendant said. He said that there was a positive, express approval on the part of the Plaintiff when the matter was mentioned to the Plaintiff. I quote from the notes of the evidence recorded by the learned Judge (page 24). The first Defendant said: "I did not ask Plaintiff if it was all right to hire the car. 1 saw Plaintiff on Thursday morning". Pausing there, that is the Thursday following the day when the first Defendant said he had allowed the second Defendant to take the car away and made a contract in the terms outlined by Mr. Percival. The note proceeds: "Told him what I had done. He was rather pleased. He said 'Good; it will go towards paying yourbill'. He did not say I should not have. He asked me who I had hired it to. I told him and gave business address. I told him the terras were entirely his responsibility and he would have to make out his own bill. I did not say £2 a day". That is what the case of the first Defendant was.
The Plaintiff's evidence was quite different. He said (and I quote from the learned JudgeJ? note, page 19) "I called again for the car. Saw both Bruce and Clark" - Mr. Clark was one whose work was in Mr. Bruce's garage. "I did not get the car. It was there not ready. I called again to collect. Was told car was oat on hire. Bruce told me that. I told him he had no right to let it out. He did not suggest he had authority. I was annoyed and said so. I told him the car was not insured. Bruce knew I had previously hired cars. I had told him the Morris I owned was out on hire. I do hiring out myself. I have never given authority to anyone to hire on my behalf. I did not say 'That's all right - it will help to pay your bill'. I asked him to get the car back. I said 'Get the damn car back'. He also says that the name of the second Defendant, Salisbury, was never mentioned, and that he only heard that name on the Saturday. He also said (page 21): "I had not three or four weeks previously said I'd be pleased if he could get me bookings. It was on Thursday afternoon I was told the car was out on hire. I wanted car for hire after I had run it in. I asked to have it back. I expected him to have it back that afternoon".
Now that really was a very direct issue; and, as it seems to me, it was an issue of fact. The first Defendant was putting forward a perfectly clear story. It was a story of positive acceptance on the part of the Plaintiff - that the Plaintiff had said "Well, I am pleased with what you have done, and what you have done will help me towards paying your bill", and that the Plaintiff never objected at all. The issue was whether the Plaintiff had so said.
This is what the learned Judge said in dealing with that issue. I quote from a note which, unfortunately, has not been seen by the learned Judge. This is a iiote which both learned Counsel have been at pains to agree. One can accept fully that learned Counsel did their best to take a note...
To continue reading
Request your trial
- Ho Shee Chit v Bruusgaard Kisteruds Skibsaksjeselskap
-
Rhyna v Transport and Harbours Department
...three weeks now, and if they had anything to query in it they ought to have queried it before now.” 54 In Bruen v. Bruce and another [1959] 2 All ER 375, Hodson, LJ has this to say on the matter (p. 375): “I desire to draw attention to the terms of RSC, Ord. 58 r. 18(5) which this court has......
-
Jarvis v Swans Tours Ltd
...plainly enough the ground of the judge's decision: but, by an oversight, it was not submitted to the judge, as it should have been: see Bruen v. Bruce (1959) 2 All England Reports, page 375. In some circumstances we should send it back to the judge for his comments. But I do not think we ne......
- Pitman v Southern Electricity Board