Leaf v International Galleries
| Jurisdiction | England & Wales |
| Judgment Date | 1950 |
| Year | 1950 |
| Date | 1950 |
| Court | Court of Appeal |
Sale of goods - Innocent misrepresentation as to painter of picture - Discovery by purchaser five years later - Claim to rescind -
In 1944 the defendants sold to the plaintiff for 85l. a picture which they represented to have been painted by J. Constable. In 1949 the plaintiff tried to sell it at Christies and was then informed that it had not been painted by Constable. He thereupon took it back to the defendants who retained it for investigation. As they still maintained that it was painted by Constable, the plaintiff brought an action in which he claimed rescission of the contract and repayment of the 85l. The county court judge found that the defendants had made an innocent misrepresentation and that the picture had not been painted by Constable, but he gave judgment for the defendants on the ground that the remedy of rescission was not available where a contract had been executed.
Held, assuming the equitable remedy of rescission for an innocent misrepresentation to be open to a buyer of goods, that it was not open to the buyer in this case as it had not been exercised within a reasonable time.
Per Evershed M.R. If a man elects to buy a chattel, especially a work of art, upon the faith of some representation which has no contractually binding effect, and delivery of the chattel is accepted, there is much to be said for the view that on acceptance there is an end of that particular transaction.
Per Evershed M.R. and Jenkins L.J. Where a statement by the seller amounts to a warranty, in which case the law gives an adequate remedy in damages if the warranty be broken, it is doubtful whether the equitable remedy of rescission for innocent misrepresentation ought to be granted at all.
Per Denning L.J. Assuming that the statement that the picture was painted by Constable was a condition of the contract, the buyer had lost his right to reject on the ground of breach of condition and was relegated to his right to claim damages for that breach; and if a claim to reject on the ground of breach of condition is barred a claim to rescission on the ground of innocent misrepresentation is a fortiori barred.
APPEAL from Westminster county court.
The plaintiff, Ernest Louis Leaf, on March 8, 1944, purchased from the defendants, International Galleries, a firm, a picture called “Salisbury Cathedral” for 85l. At the time of the purchase the defendants represented that the picture was painted by John Constable, but when five years later the plaintiff tried to sell it he was informed that it was not by Constable. Thereupon he returned it to the defendants and asked them to refund the 85l. which he had paid for it. The defendants having refused to do so, the plaintiff by this action claimed to rescind the contract and to have repayment of the 85L.
When the hearing began in the county court, the judge suggested that the plaintiff's proper remedy was a claim for damages, and asked if he wished to amend his claim. It was then stated that no such amendment was desired. At the end of the hearing, however, the plaintiff applied for leave to amend and add a claim for damages, but this was refused on the ground that the application had been made too late. The county court judge found that the defendants had made an innocent misrepresentation and that the picture had not been painted by Constable. He gave judgment for them, however, holding, on the authority of Angel v. JayF1, that the equitable remedy of rescission was not available in the case of an executed contract.
The plaintiff appealed.
Weitzman for the plaintiff. The plaintiff is entitled to rescind this contract. He agreed to purchase a picture painted by Constable and it is now established that the picture was not painted by Constable. In Wilde v. GibsonF2 Lord Campbell said that where there had been an innocent misrepresentation rescission would not be ordered after conveyance. Joyce J. expressed the same opinion in Seddon v. North Eastern Salt Co. Ld.F3, and that principle was applied in Angel v. JayF1. Similar views have been expressed in Redgrave v. HurdF4, Whittington v. Seale-HayneF5, and Armstrong v. JacksonF6. Since those cases were decided, however, many judges have expressed the opinion that rescission could be granted of an executed contract where there had been an innocent misrepresentation: see per Lord Atkin in Bell v. Lever Bros. Ld.F7, MacKenzie v. Royal Bank of CanadaF8, and the decision of the Court of Appeal in Solle v. ButcherF9. The principle that rescission cannot be obtained of an executed contract has been criticized in an article in the Law Quarterly Review, vol. 55, p. 90. It is submitted that the true view is that rescission can be obtained of an executed contract so long as restitutio in integrum is possible. Here the parties can be restored to their original position, since the plaintiff can return the picture to the defendants. The plaintiff was under no obligation to have the picture examined when he purchased it. He has only now discovered that he has not got what he purchased.
He is entitled to elect whether he will claim damages under s. 11 of the Sale of Goods Act, 1893, F10 for breach of warranty or whether he will claim rescission. Time did not begin to run against the plaintiff until he discovered that the picture was not in fact painted by Constable.
John Perrett and K. G. Jupp, for the defendants, were not called on.
DENNING L.J. [asked by Evershed M.R. to deliver the first judgment, stated the facts and continued:] The question is whether the plaintiff is entitled to rescind the contract on the ground that the picture in question was not painted by Constable. I emphasize that it is a claim to rescind only: there is no claim in this action for damages for breach of condition or breach of warranty. The claim is simply one for rescission. At a very late stage before the county court judge counsel did ask for leave to amend by claiming damages for breach of warranty, but it was not allowed. No claim for damages is before us at all. The only question is whether the plaintiff is entitled to rescind.
The way in which the case is put by Mr. Weitzman, on behalf of the plaintiff, is this: he says that this was an innocent misrepresentation and that in equity he is, or should be, entitled to claim...
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