Lewis v Averay
| Jurisdiction | England & Wales |
| Judge | THE MASTER of THE ROLLS,LORD JUSTICE PHILLIMORE,LORD JUSTICE MEGAW |
| Judgment Date | 22 July 1971 |
| Judgment citation (vLex) | [1971] EWCA Civ J0722-2 |
| Court | Court of Appeal (Civil Division) |
| Date | 22 July 1971 |
[1971] EWCA Civ J0722-2
In The Supreme Court of Judicature
Court of Appeal
Appeal by defendant from order of His Honour Deputy Judge Ellison at Bromley County Court on 15th January, 1971
The Master of the Rolls (Lord Denning),
Lord Justice Phillimore and
Lord Justice Megaw
Mr. DAVID PREBBLE (instructed by Messrs. Adams, Brown & Co.) appeared on behalf of the Respondent Plaintiff.
Mr. ROGER TITHERIDGE and Mr. BRUCE MARKHAM DAVID (instructed by Messrs. Amery-Parkes & Co.) appeared on behalf of the Appellant Defendant.
This is another case where one of two innocent persons has to suffer for the fraud of a third. It will no doubt interest students and find its place in the textbooks.
Mr. Lewis is a young man who is a post-graduate student of chemistry. He lives at Clifton near Bristol. He had an Austin-Cooper motor car. He decided to sell it. He put an advertisement in the newspaper offering it for £450. On the 8th May, 1969, in reply to the advertisement a man – I will simply call him the "rogue", for so he was – telephoned and asked if he could come and see the car. He did not give his name. He said he was speaking from Wales, in Glamorganshire. Mr. Lewis said he could come and see it. He came in the evening to Mr. Lewis's flat. Mr. Lewis showed him the car, which was parked outside. The rogue drove it and tested it. He said he liked it. They then went along to the flat of Mr. Lewis's fiancee, Miss Kershaw, (they have since married.) He told them he was Richard Green and talked much about the film world. He led both of them to believe that he was the well-known film actor, Richard Greene, who played Robin Hood in the "Robin Hood" series. They talked about the car. He asked to see the log-book. He was shown it and seemed satisfied. He said he would like to buy the car. They agreed a price of £450. The rougue wrote out a cheque for £450 on the Beckenham Branch of the Midland Bank. He signed it "R. A. Green". He wanted to take the car at once. But Mr Lewis was not willing for him to have it until the cheque was cleared. To hold him off, Mr. Lewis said therewere one or two small jobs he would like to do on the car before letting him have it, and that would give time for the cheque to be cleared. The rogue said: "Don't worry about those small jobs. I would like to take the car now." Mr. Lewis said; "Have you anything to provethat you are Mr. Richard Green?" The rogue thereupon brought out a special pass of admission to Pinewood Studios, which had an official stamp on it. It bore the name of Richard A. Green and the address, and also a photograph which was plainly the photograph of this man, who was the rogue. On seeing this pass, Mr. Lewis was satisfied. He thought this man was really Mr. Richard Greene, the film actor. By that time it was 11 o'clock at night. Mr. Lewis took the cheque and let the rogue have the car and the log-book and the Ministry of Transport Test Certificate, Each wrote and signed a receipt evidencing the transaction. Mr. Lewis wrote:-
"Received from Richard A. Green 59 Marsh Rd., Beckenham Kent the sum of £450 in return for Austin Cooper Reg. No. A. H. T. 484 B chassis No. CA257 - 549597
Signed Keith Lewis."
The rogue wrote:-
"Received log-book No. 771835 and M.O.T. for Mini-Cooper S No. A.H.T. 484B R.A. Green."
Next day, the 9th May, 1959, Mr. Lewis put the cheque into the bank. A few days later the bank told him it was worthless. The rogue had stolen a cheque book and written this £450 on a stolen cheque.
Meanwhile, whilst the cheque was going, through, the rogue sold the car to an innocent purchaser. He sold it to a young man called Mr. Averay. He was at the time under 21. He was a music student in London at the Royal College of Music. His parents live at Bromley. He was keen to buy a car. He put an advertisement in the Exchange and Mart, seeking a car for £200. In answerhe had a telephone call from the rogue. He said he was speaking from South Wales. He said that he was coming to London to sell a car. Mr. Averay arranged to meet him on the 11th May, 1969. The rogue came with the car. Young Mr. Averay liked it, but wanted to get the approval of his parents. They drove it to Bromley. The parents did approve. Young Mr. Averay agreed to buy it for £200. The rogue gave his name as Mr. Lewis. He banded over the car and log-book to young Mr. Averay. The logbook showed the owner as Mr. Lewis. In return Mr. Averay, in entire good faith, gave the rogue a cheque for £200. The rogue signed this receipts:
"Sale of Cooper to A. J. Averay Received £200 for the Cooper S Registration No. A.H.T. 484 B, the said car being my property absolutely, there being no hire-purchase charges outstanding or other impediment to selling the car. Signed Keith Lewis May 13th 1969."
A fortnight later, on the 29th May, 1969, Mr. Averay wanted the workshop manual for the car. So his father on his behalf wrote to the name and address of the seller as given in the logbook, that is, to Mr. Lewis. Then, of course, the whole story came to light. The rogue had cached the cheque and disappeared. The police have tried to trace him, but without success.
Now Mr. Lewis, the original owner of the car, sues young Mr. Averay. Mr. Lewis claims that the car is still his. He claims damages for conversion. The Judge found in favour of Mr. Lewis and awarded damages of £330 for conversion.
The real question in the case is whether on the 8th May, 1969, there was a contract of sale under which the property in the car passed from Mr. Lewis to the rogues. If there was such a contract, then even though it was voidable for fraud, nevertheless Mr. Averay would get a good title to the car. But if there was no contractof sale by Mr. Lewis to the rogue - either because there was, on the face of it, no agreement between the parties, or because any apparent agreement was a nullity and void ab initio for mistake, then no property would pass from Mr. Lewis to the rogue. Mr. Averay would not get a good title because the rogue had no property to pass to him.
There is no doubt that Mr. Lewis was mistaken as to the identity of the person who handed him the cheque. He thought that he was Richard Green, a film actor of standing and worth: whereas in fact he was a rogue whose identity is quite unknown. It was under the influence of that mistake that Mr. Lewis let the rogue have the car. He would not have dreamed of letting him have it otherwise.
What is the effect of this mistake? There are two cases in our books which cannot, to my mind, be reconciled the one with the ether. One of them is Phillips v. Brooks, 1919 2 K. B. 243, where a jeweller had a ring for sale. The other is Ingram v. Little, 1964 1 Q.B. 31, where two ladies had a car for sale. In each case the story is very similar to the present. A plausible rogue comes along. The rogue says he likes the ring, or the car, as the case may be. He asks the price. The seller names it. The rogue says he is prepared to buy it at that price. He pulls out a cheque book. He writes, or prepares to write, a cheque for the price. The seller hesitates. He has never met this man before. He does not want to hand over the ring or the car not knowing whether the cheque will be met. The rogue notices the seller's hesitation. He is quick with his next move. He says to the jewellers in Phillips v. Brooks: I am Sir George Bullough of 11 St. James Square; or to the ladies "I am P. S. M. Hutchinson of Stanstead House, Stanstead Road, Caterham";or to the post-graduate student in the present case: "I am Richard Green, the film actor of the Robin Hood series". Each seller checks up the information. The jeweller looks up the directory and finds there is a Sir George Bullough at 11 St. James & Square. The ladies check up too. They look at the telephone directory and find there is a "P. S. M. Hutchinson of Stanstead House, Standstead Road, Caterham." The post-graduate student checks up too. He examines the official pass of the Pinewood Studios and finds that it is a pass from "Richard A. Green" to the Pinewood Studios with this man's photograph on it. In each case the seller feels that this is sufficient confirmation of the man's identity. So he accepts the cheque signed by the rogue and lets him have the ring, in the one case, and the car and log-book in the other two cases. The rogue goes off and sells the goods to a third person who buys them in entire good faith and pays the price to the rogue. The rogue disappears. The original seller presents the cheque. It is dishonoured. Who is entitled to the goods? The original seller? or the ultimate buyer? The Courts have given different answers. In Phillips v. Brooks, the ultimate buyer was held to be entitled to the ring. In Ingram v. Little the original seller was held to be entitled to the car. In the present case the Deputy County Court Judge has held the original seller entitled.
It seems to me that the material facts in each case are quite indistinguishable the one from the other. In each case there was, to all outward appearance, a contract but there was a mistake by the seller as to the identity of the buyer. This mistake was fundamental. In each case it led to the handing over of the goods. Without it the seller would not have parted with them.
This case raises therefore the question: What is the effect of a mistake by one party as to the identity of the other? It has sometimes been said that, if a party makes a mistake as to the identity of...
To continue reading
Request your trial
-
Director of Public Prosecutions v Gomez
...law principles." 104Accordingly, it is both proper and rational to rely on such cases as Phillips v. Brooks Ltd. [1919] 2 K.B. 243 and Lewis v. Averay [1972] 1 Q.B. 198, 105My Lords, having drafted this speech, I then had the pleasure and advantage of reading in draft the speech to be del......
-
Shogun Finance Ltd v Hudson
...v Little [1961] 1 QB 31 was doubted when the same problem came before a differently constituted Court of Appeal ten years later, in Lewis v Averay [1972] 1 QB 198. The court comprised Lord Denning MR, Phillimore and Megaw LJJ. In the Lewis case a crook represented orally to the owner of a c......
-
E D & F Man Capital Markets Ltd v Come Harvest Holdings Ltd
... [2014] EWHC 4384 (Ch) at §44 per Sir Terence Etherton C; Bristol & West Building Society v Mothew [1998] Ch 1 at 22F per Millett LJ; Lewis v Averay [1972] 1 Q.B. 198 at 207B-C per Lord Denning MR; Lewin on Trusts, 20th Ed., §8–030; McGrath, Commercial Fraud in Civil Practice, 126 See Val......
- Citibank N.A. v Brown Shipley & Company Ltd
-
Contract Law
...and Lord Millett) endorsed the proposition first mooted by Lord Denning MR in the English Court of Appeal decision of Lewis v Averay[1972] 1 QB 198 to the effect that the contract concerned would always be rendered voidable only. The majority, on the other hand, managed to avoid having to p......
-
VITIATING FACTORS IN CONTRACT LAW — THE INTERACTION OF THEORY AND PRACTICE
...of the inquiry, see also per Waller J in Citibank NA v Brown Shipley & Co Ltd[1991] 2 All ER 690 at 700. 54 [1961] 1 QB 31 at 69. 55 [1972] 1 QB 198. 56 Ibid at 206. 57 Ibid at 208. 58 [1961] 1 QB 31. 59 [1972] 1 QB 198 at 209. 60 [1919] 2 KB 243. 61 [1972] 1 QB 198. 62 [1961] 1 QB 31. 63 A......
-
Mistake
...is also a key to his identity. If then, he gives a false name, is it a mistake as to his identity? or a mistake as to his attributes? 54 [1972] 1 QB 198 (CA) [ Lewis ]. 55 Ibid at 207. 56 Ibid . 57 Ibid at 206. Mistake 597 These fine distinctions do no good to the law.” 58 The court appear......
-
VITIATING FACTORS IN CONTRACT LAW — SOME KEY CONCEPTS AND DEVELOPMENTS
...the “infamous” trilogy of cases comprising Phillips v Brooks, Limited[1919] 2 KB 243; Ingram v Little[1961] 1 QB 31; and Lewis v Averay[1972] 1 QB 198, which are, inter alia, discussed in Phang, supra n 1. 49 (1878) 3 App Cas 459. 50 And see supra n 43, at [49]. 51 Supra n 48. 52 See Phang,......