Clayton v Le Roy
| Jurisdiction | England & Wales |
| Date | 1911 |
| Court | Court of Appeal |
Sale of Goods - Market Overt - Custom of the City of London - Shop - Auction Room - Detinue - Trover - Demand and Refusal before Writ.
The plaintiff's watch, which had been bought some years previously at the defendant's shop, was stolen from the plaintiff, who gave information of the theft to the defendant. The watch was pledged with a pawnbroker, and eventually, together with a large number of other unredeemed pledges, was sold by auction in a room on the first floor of a building in the city of London, which room was used solely for the sale by auction of all classes of goods. Shortly afterwards the watch was purchased in a jeweller's shop in the country by one B., who sent it to the defendant for an opinion as to whether it was a genuine antique watch. The defendant wrote both to the plaintiff and to B., telling them that it was the watch which had been stolen, and inquiring as to their wishes in the matter. No answer was sent by the plaintiff to the defendant's letter, but a few days afterwards a clerk of the plaintiff's solicitors called at the defendant's shop and, on being shewn the watch, demanded that it should be then and there handed over to him, and, on this request being refused, at once served the defendant with a writ in detinue which he had taken out on behalf of the plaintiff about two hours previously:—
Held by Scrutton J., that the auction room was not a shop within the meaning of the custom of the city of London, according to which a sale in a shop in that City of such goods as are usually sold in it is a sale in market overt.
Held by the Court of Appeal (Fletcher Moulton L.J. and Farwell L.J., Vaughan Williams L.J. dissenting), without deciding the question of market overt, that upon the facts given in evidence there had been no wrongful refusal on the part of the defendant to return the watch to the plaintiff before the date of the issue of the writ, and that the plaintiff had no cause of action against the defendant either in detinue or in trover.
TRIAL before Scrutton J. without a jury.
The action was for detinue of a watch. In 1902 the wife of the plaintiff, Major Edward Clayton, bought from the defendant, a jeweller carrying on business in New Bond Street under the name of Le Roy et Fils, a Breguet watch, which she gave to her husband. In 1908 the watch was stolen from the plaintiff while staying at Cannes. The plaintiff gave information of the theft to the defendant. The watch was subsequently pawned with some pawnbrokers in the Strand, by whom it was eventually sent to be sold by auction with other unredeemed pledges by Messrs. Johnson, Dymond & Son at the “City Auction Rooms” in Gracechurch Street. It was bought at the auction in November, 1909, by a Mr. Phillips, through whom it passed to a Mr. Bennett. In May, 1910, Mr. Bennett sent it to the defendant for an opinion as to its genuineness, and the defendant recognized the watch as the one which he had sold to Mrs. Clayton. The defendant accordingly wrote to Mr. Bennett the following letter:— “57, New Bond Street, May 11, 1910. Dear Sir, — I beg to acknowledge receipt of your pedometer watch, and it is of course quite genuine. Directly I saw it I recognized it as the watch stolen from my customer some years ago, about which I told you. I have also referred to the old books and find the number of it was 195. There is therefore no possible doubt about its being the same watch. It places me in a difficult position, as I do not see how I can do otherwise than acquaint my customer with the facts. It was stolen a good many years ago, I think about eight or nine, so I should think there can be no legal claim against you. Will you kindly let me know what you think about it before I write to the customer, and also tell me how much you would take for the watch if I can buy it from you. I remain, Sir, your obedient servant, M. Le Roy.” He received the following answer:— “Westlands, Grimsby, May 12, 1910. Dear Sir, — I received your letter this morning and am very much surprised to hear that my Breguet pedometer watch is also a stolen watch ….. If the watch has really been stolen I shall be only too pleased for you to restore it to the original owner provided he will pay me the price I gave for the watch, namely 44l., and 3s. 6d. for the case. I bought the watch through Mr. Burton, jeweller, 33, Victoria Street, Grimsby, who will give you any information, if you require it, on your writing him. The watch was bought at an auction sale in London last November, and I have had it since that time. In fact I was telling you about it when I called on you in January last. Yours faithfully, Henry Bennett.” On receipt of that letter the defendant wrote to Mrs. Clayton as follows: “57, New Bond Street, London, May 16, 1910. Madam, — We beg respectfully to inform you that an old customer of ours has just sent us an old Breguet watch for our inspection, and upon referring to our books we find it is the pedometer Breguet watch we sold to you many years ago, and which, if our recollection is accurate, you told us was subsequently stolen from Major Clayton somewhere abroad. We believe the watch cost our customer about 50l. only, and we wrote to tell him it is the watch we believe was stolen from you. It is now so long ago that it would no doubt be impossible to trace the thief, but we are writing to you thinking you might like to repurchase the watch. Our customer has written to tell us that he would be willing to give it up for the price it cost him, if the person from whom it was stolen wished to repurchase the watch. Will you kindly let us know what your wishes are in reference to it. We remain, Madam, your obedient servants, M. Le Roy.”
The plaintiff's solicitors, treating that letter as a refusal to deliver up the watch without payment, forthwith commenced this action. After issue of the writ the defendant definitely refused to give up the watch, and was thereupon served with the writ.
The defence was that the sale to Phillips at the City Auction Rooms was by virtue of the custom of the city of London a sale in market overt, and that the plaintiff had consequently lost his property in the watch. The “City Auction Rooms” are auction rooms of the usual type. The proprietors sell there all classes of goods. The manager said in his evidence “We sell anything that is sent to us to sell.” The first floor room in which the watch was sold is used exclusively for the sale of jewellery, watches, and plate. It is open to the public. In accordance with the practice the sale at which the watch was sold was advertised in two newspapers, and the several lots, including the watch, were on view on the two days preceding the sale.
E. W. Hansell, for the plaintiff.
Atkin, K.C., and C. L. Attenborough, for the defendant. By the custom of the city of London every shop in the City is market overt for such goods as are usually sold there: The Case of Market Overt.F2 An auction room is a shop for this purpose. The object of the custom is to protect sales which are conducted openly. If the custom applies to a small shop, a fortiori must it apply to a large one where many customers go, such as an auction room. In Johnson's Dictionary a shop is defined to be a “place where anything is sold,” and in Webster's Dictionary “a building in which goods are sold by retail.” In Lyons v. De PassF3 a warehouse in which goods were openly sold was held to be a shop within the custom. In Wiltshire v. WillettF4 an auction room was held to be a shop within the meaning of a local Act which prohibited the sale of certain articles at any place within the limits of the Act except the market or a shop attached to a dwelling-house. The question is whether the goods are sold in a place where the owner is likely to search for them, and the owner is much more likely to look for them in an auction room than in a jeweller's shop. The greater the publicity attending the sale the greater the reason for protecting it.
Secondly, the action is premature. There was no sufficient refusal by the defendant before writ to deliver up the watch to constitute a conversion. The detention necessary to support an action of detinue must be an adverse detention: Clements v. Flight.F5 Where as here the goods have been deposited with the defendant by a third person of whose want of title the defendant was ignorant, the mere detention of them is no conversion unless there has been a refusal to deliver them to the owner: Spackman v. Foster.F6 The letter of May 16 did not amount to a conversion. It stated that the defendant would give up the watch on certain terms; it did not say that he would not give it up on any other terms.
E. W. Hansell in reply. Demand and refusal is only evidence of conversion, and in certain cases it may be the only evidence. But there may be a conversion without any demand and refusal. And here there was, for the defendant was informed in 1908 that the watch had been stolen, and therefore when he received it from Bennett that receipt, not being innocent, amounted to a conversion. In Spackman v. FosterF6 the defendant when he received the deeds which were the subject of that action did not know that they were the claimant's property. In any case the letter of May 16 was a conversion. It could only mean that the plaintiff might have the watch back if he paid certain money, but otherwise not. And the refusal after issue of the writ and before service was evidence as to what that letter meant. A demand and refusal after writ may be evidence of a prior conversion: Wilton v. GirdlestoneF7; Morris v. PughF8; and the subsequent conduct of the defendant in fighting this case on the defence of market overt is evidence of his prior intention to deprive the plaintiff of the dominion over his own watch. Secondly, the custom...
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