Campbell Discount Company Ltd v Gall
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE HOLROYD PEARCE,LORD JUSTICE DAVIES |
| Judgment Date | 02 March 1961 |
| Judgment citation (vLex) | [1961] EWCA Civ J0302-3 |
| Court | Court of Appeal |
| Date | 02 March 1961 |
[1961] EWCA Civ J0302-3
In The Supreme Court of Judicature
Court of Appeal
Revised
Lord Justice Holroyd Pearce
Lord Justice Harmnan and
Lord Justice Davies
Mr DENIS R.M. HENRY (instructed by Messrs Lovell, White & King) appeared on behalf of the Appellant (Defendant).
Mr OLIVER S. (instructed by Messrs Vizard, Holham, Crowder & Cash) appeared on behalf of the Respondents (Plaintiffs).
This is a defendant's appeal from a Judgment of his honour Judge Nicholas who held that he was liable to pay certain instalments under a hire purchase agreement, and dismissed his counterclaim for the return of a deposit of £65. The appellant contends first that the learned Judge erred in that no agreement was ever made between the plaintiff company and the defendant. Secondly, he argues that if such an agreement was made, it was not enforceable since there was no sufficient note or memorandum of the agreement under section 2, subsection (2) (a) of the Hire Purchase Act 1938.
The case involves the question whether the loss occasioned by the fraud (or just conceivably the mistake) of a motorcar dealer falls to be borne by the defendant or the plaintiff finance company. The defendant was introduced to one Boodof, the manager of a firm, Windsor Autos, that dealt in motorcars. He believed that Boodof was a dealer on his own. He agreed with Boodof to buy a secondhand Vauxhall car for £265 on hire purchase terms. The defendant paid a deposit of £65 in cash to Boodof. Unfortunately at Boodof's request the defendant signed one of the plaintiff company's forms of hire purchase contract leaving the blanks unfilled for Boodof to complete. He had been told by Boodof and expected that he would have to pay a further £200 by instalments not exceeding £2 per week spread over a period of eighteen months to two years. Boodof inserted into the uncompleted hire purchase agreement a false purchase price of £325. He also inserted into the hire purchase agreement a provision that repayment was to be by twenty-four monthly instalments of £13 per month, He gave similar false particulars on the sales note. He sent the requisite documents to the plaintiff company, who bona fide accepted the transaction, and paid Boodof for the motorcar. The car was delivered to the defendant, but he never used it. Shortly thereafter the company sent him a copy of the agreement. The defendant said in evidence that he complained by letter and telephone that both the price and the instalments were too high, but the plaintiff company had no record of such a letter or telephone conversation. The Judge makes no finding on that point.
In due course the plaintiffs took possession of the car and sued the defendant for four monthly instalments. The defendant contends that he never agreed to the hire purchase agreement now sued on, and that since the total hire purchase price under the real agreement was less than £300, the transaction came within the Hire Purchase Acts, and is unenforceable owing to certain breaches of the statutory requirements. He counterclaims for the £65 deposit paid under the purported agreement made with Boodof. The question is whether the defendant is bound by, and also whether the plaintiffs can enforce, the hire purchase agreement which by its terms is outside the Act since the total hire purchase price thereunder is over £300 when in fact the true bargain that the defendant himself made was within the Act. If the Act is applicable there was plainly a failure to comply with section 2 subsection (2) (a) since the signature by the hirer of the agreement in blank does not satisfy the statutory requirement; ( Eastern Distributors v. Golding 1957 volume 2 Queen's Bench Division at page 612).
The position of Boodof vis-a-vis the parties is of vital importance. There are three possibilities: (1) that Boodof was either the plaintiff company's agent by authority or by estoppel; (2) that he was the defendant's agent by authority or by estoppel; and (3) that he was not the agent of either party.
Both counsel have put their arguments very clearly and fairly. Mr Henry puts forward as his main contention the proposition that Boodof was the agent of the plaintiff company. If that be right, the defendant must succeed, for he made an oral agreement with the plaintiffs through their agent, and that agent fraudulently (or just conceivably by mistake) filled in the form so that it purports to embody an agreement that was never in fact made - In that event, quite apart from the Act, they cannot successfully sue on the agreement produced. Their attempt to do so is a repudiation of the original oral agreement with the result that the deposit becomes repayable to the defendant.
Mr Martin took the preliminary point that parol evidence is not admissible to show that the written agreement is other than it appears to be. I do not think that point is good. It was not put forward on a cross notice, and therefore Mr Henry was taken by surprise and has not had time to deal with the matter fully. Had we been against him on this point we must, have granted him an adjournment. "Parol evidence cannot be received", to use the words of Lord Morris in ( Bank of Australasia v. Palmer 1897 Appeal Gases at page 545) "to contradict, vary, add to or subtract from the terms of a written contract or the terms in which the parties have deliberately agreed to record any part of their contract". But parol evidence can be used to show whether a written contract is void for mistake - see cases cited on page 477 of Cross on Evidence -or was signed subject to a condition precedent. Moreover in certain cases parol evidence is admissible when it is relevant for the court to find the true nature of the transaction.
The Hire Purchase Act, like the Bills of Sale Acts and the Rent Acts, cannot in my judgment be excluded by documents which, though purporting to be outside the Act, represent a transaction which is in truth within it. Under the two latter Acts parol evidence has always been admissible to show the true nature of a written transaction which appears to satisfy or exclude the Act although that evidence varies or contradicts the documents. Such evidence is admissible here for the purpose of showing that the true bargain was within the Hire Purchase Act (although the written document is outside it) unless the defendant is estopped from so contending. But even if Boodof was the defendant's agent, I feel considerable doubt whether, the Act can be excluded by such an estoppel. Clause 12 on which the learned Judge relied says that the dealer is not the agent of the hire purchase company, and that they are not in any way responsible for, and shall not be bound by, any representations made by such vendor.
If in truth this transaction comes within the Act, then the provisions of section 5 (e) apply, and "any provision in any agreement whereby an owner or seller is relieved from liability for the acts or defaults of any person acting on his behalf in connection with the formation or conclusion of a hire purchase agreement or credit-sale agreement shall be void". If, therefore, Boodof was acting for the hire purchase company, clause 12 of the hire purchase agreement would be void. But that still leaves the question intact whether he was in fact so acting.
The following facts are said to show that Boodof was acting as agent for the hire purchase company. First, it is said, he decided what the total price and what the rates of repayment were to be. But in my view that was not a decision by Boodof on behalf of the hire purchase company; it was merely...
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