Fieldrank Ltd v E. Stein

JurisdictionEngland & Wales
CourtCourt of Appeal
JudgeLORD JUSTICE SELLERS,LORD JUSTICE
Judgment Date26 July 1961
Judgment citation (vLex)[1961] EWCA Civ J0726-4
Date26 July 1961

[1961] EWCA Civ J0726-4

In The Supreme Court of Judicature

Court of Appeal

(From: Mr Justice Megaw: In Chambers)

Before:

Lord Justice Sellers

Lord Justice Devlin and

Lord Justice Danckwerts

Fieldbank Limited
and
E. Stein (Male)

Mr. M. SOLOMON (instructed by Messrs, Tringhams) appeared on behalf of the Appellant (Defendant).

Mr. J. RAYMOND PHILLIPS (instructed by Messrs. J, H, Milner & Sc appeared on behalf of the Respondents (Plaintiffs).

1

(without calling upon Counsel for the Appellant to reply)

LORD JUSTICE SELLERS
2

I will ask Lord Justice Devlin to give the first judgment.

3

LORD JUSI'ICE DEVLIN: in this case the defendant appeals from an order made by Mr Justice Megaw in which the learned judge refused to give unconditional leave to defend but gave leave on the condition that the defendant paid into court the whole of the amount claimed by the plaintiffs. The appellant now asks that that condition should be removed and that he should have unconditional leave to defend.

4

The claim is for £366, 14s. 0d, and It Is described In the Statement of Claim as money paid by the plaintiffs to the defendant for a consideration which has wholly failed The particulars allege that the plaintiffs paid this sum to the defendant as a deposit on a contract to be negotiated by the defendant for the purchase on behalf of the plaintiffs of various quantities of Bedford springs and spares. They further allege that none of the goods have been delivered by the defendant and that the defendant has not returned the said sum of £314s od It is not alleged that the contract was not negotiated by, the defendant for the plaintiffs, and by implication, since it is complained that none of the goods have been delivered by the defendant. It would appear that It is accepted that It has been If the contract has been negotiated and the goods have not been delivered to the plaintiffs, the proper claim in law is not for repayment of money for a consideration which has wholly failed, but for such relief as a principal may obtain if an agent who has bought goods on his behalf and been paid for them falls to hand them over. However, that Is the way in which the claim has been presented and we have no further enlightenment upon it because apart from the formal affidavit under Order 14- there has been no affidavit filed by the plaintiffs,

5

The defendant has filed an affidavit In which he sets out a case which is accepted by Mr Phillips (who has argued the ease on behalf of the respondents) as raising a triable issue under Order 14. That oase, shortly is that the two parties, the plaintiffs and the defendant, agreed to buy these goods in partnership and to re-sell them to a foreign purchaser whom they had to find, that the defendant accordingly bought the goods, the plaintiffs putting up half the money (that being the sum which the plaintiffs say was the deposit), and that the defendant has been unable to resell the goods for lack of an export licence The defendant says that he has offered to deliver to the plaintiffs half the materials which he has bought, but that that offer has been refused. As against that, as I have said, there...

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    ...(3) Cuckmere Brick Co. Ltd. v. Mutual Finance Ltd., [1971] Ch. 949; [1971] 2 All E.R. 633, applied. (4) Fieldrank Ltd. v. E. Stein, [1961] 1 W.L.R. 1287; [1961] 3 All E.R. 681, observations of Devlin, L.J. applied. (5) Greenhalgh v. Mallard, [1947] 2 All E.R. 255. (6) Paradise Manor Ltd. v.......
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