L'Estrange v F. Graucob Ltd
| Jurisdiction | England & Wales |
| Judgment Date | 1934 |
| Date | 1934 |
| Year | 1934 |
| Court | King's Bench Division |
Sale of Goods - Contract in writing signed by Parties for sale of Automatic Slot Machine - Clause in small print excluding “any express or implied condition, statement, or warranty, statutory or otherwise” - No misrepresentation by Seller as to terms of Contract - Machine out of order - Action by Buyer against Seller for Breach of Implied Warranty of Fitness - Competence of Action.
The buyer of an automatic slot machine signed and handed to the sellers an order form containing in ordinary print and writing the essential terms of the contract, and in small print certain special terms one of which was “any express or implied condition, statement, or warranty, statutory or otherwise not stated herein is hereby excluded.” The sellers thereupon signed and handed to the buyer a printed order confirmation assenting to the terms in the order form. The machine was delivered by the sellers to the buyer, who paid to the sellers an instalment of the price. The machine did not work satisfactorily, and the buyer brought an action against the sellers in the county court claiming (inter alia) damages for breach of an implied warranty that the machine was fit for the purpose for which it was sold. The sellers pleaded (inter alia) that the contract expressly provided for the exclusion of all implied warranties. The buyer replied that at the time when she signed the order form she had not read it and knew nothing of its contents, and that the clause excluding warranties could not easily be read owing to the smallness of the print. There was no evidence of any misrepresentation by the sellers to the buyer as to the terms of the contract:—
Held, by the Divisional Court (Scrutton and Maugham L.JJ.), reversing on this point the judgment of the county court judge, that as the buyer had signed the written contract, and had not been induced to do so by any misrepresentation, she was bound by the terms of the contract, and it was wholly immaterial that she had not read it and did not know its contents; and that the action failed and the sellers were entitled to judgment.
APPEAL from the Carnarvonshire County Court held at Llandudno.
The plaintiff, Miss Harriet Mary L'Estrange, was the owner of premises in Great Ormes Road, Llandudno, where she resided and carried on the business of a café. The defendants, Messrs. F. Graucob, Ld., of City Road, London, E.C., were manufacturers and sellers of automatic slot machines.
On February 7, 1933, two of the defendants' representatives, a Mr. Page, their sales supervisor, and a Mr. Berse, one of their travellers, called upon the plaintiff and asked her to buy an automatic slot machine for cigarettes. A meeting was arranged at the house of the plaintiff's stepmother between these representatives of the defendants on the one part, and the plaintiff, her stepmother, and a Mr. Pratt who assisted the plaintiff in her business on the other part. The plaintiff decided to buy from the defendants an automatic cigarette machine of the description mentioned below. Mr. Page then produced a form printed on brown paper, headed “Sales Agreement,” in which there were blanks for the particulars of any given transaction. The blanks on the form were then filled up with the particulars of the plaintiff's purchase and the form was signed by the plaintiff.
The document when completed was, so far as material, in the following terms: “Sales Agreement. Date Feb. 7, 1933. To F. Graucob, Ltd., …. Please forward me as soon as possible: One Six Column Junior Ilam Automatic Machine …. which I agree to purchase from you on the terms stated below …. and to pay for the same in the following manner: Instalments 8l. 15s. 0d. down. 18 payments of 3l. 19s. 11d.” Then after some other formal matter came certain clauses in small print which, so far as material, were as follows: “I agree to take delivery of the machine upon receiving notice that it is ready for delivery, and to make the first monthly payment 30 days after the date following that of the posting of such notice and all subsequent payments on the corresponding date of each succeeding month. …. If any payment shall not have been received by you within a fortnight after it has become due, all the remaining payments shall fall due for immediate payment, and I agree to pay interest on these remaining payments at the rate of ten per cent. per annum as from the date of their so falling due. In consideration of your undertaking to put in hand at once work on this machine I agree not to countermand this order. …. This agreement contains all the terms and conditions under which I agree to purchase the machine specified above, and any express or implied condition, statement, or warranty, statutory or otherwise not stated herein is hereby excluded. …. (sgd.) H. M. L'Estrange.” Then followed printed questions relating to the purchaser and her business and premises with blank spaces for the answers which were filled in in manuscript appropriately to this case.
On the same date the plaintiff handed to Mr. Page her cheque for 4l. on account of the price of the machine.
On February 9, 1933, the defendants, having received the above mentioned document, sent to the plaintiff an “order confirmation” of that date signed by them; a “guarantee” for eighteen months for the free fixing, maintenance, and insurance of the machine; and an invoice.
On March 28, 1933, the machine was delivered at the plaintiff's premises, and on March 29 a mechanic of the defendants came and installed it there, the plaintiff handing to him on behalf of the defendants a further sum of 4l. 15s. in respect of the price, and 6s. for packing, making together 5l. 1s.
The machine did not work satisfactorily, and after a few days it became jammed and unworkable. On April 7, 1933, the plaintiff wrote to the defendants that it had failed and was still out of order, and a mechanic was sent to put it right. On April 27, she again wrote that it was far from reliable; and on April 28 a mechanic again attended to it, and the plaintiff then signed a form that it was working to her satisfaction. On May 4, she wrote that the machine had been of no use for a month, and asked for another month in which to pay her first instalment, but added that since the last overhaul the machine had worked satisfactorily. On May 8, her patience being exhausted, she wrote that she had decided to forfeit her deposit, and requested the defendants to remove the machine; and on May 11 she ceased to make use of the machine. The defendants, however, declined to terminate the transaction.
On May...
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