MacLeod v Kerr
| Jurisdiction | Scotland |
| Judgment Date | 14 May 1965 |
| Date | 14 May 1965 |
| Docket Number | No. 29. |
| Court | Court of Session (Inner House - First Division) |
1ST DIVISION.
ContractFraudSale of motor carPrice paid by stolen chequeCheque dishonouredWhether buyer guilty of theftSale of car by buyer to innocent third partyWhether property in car acquired by third party.
CrimeTheftMotor car paid for by stolen chequeCheque dishonouredWhether theft of car.
A, the owner of a motor car, agreed to sell it to B. B, who gave a false name, handed him a cheque for the price and drove the car away. The next day the cheque was dishonoured, and A, having discovered that B had used a stolen cheque book to defraud him, immediately informed the police. B subsequently sold the car to C, who bought it in good faith and for value. Later the police took possession of the car from C, and, when criminal proceedings against B had been concluded, an action of multiplepoinding was brought to determine the party entitled to it.
Held that the car, having been removed with the consent of A, who had intended to sell it, had not been stolen; that the contract between A and B was not void, and, though voidable, had not been rescinded prior to the sale to C; and that consequently the car belonged to C.
Morrisson v. Robertson, 1908 S. C. 332,distinguished.
Peter Kerr, 41 Craigmount Park, Edinburgh, brought an action of multiplepoinding in the Sheriff Court at Edinburgh as defender and real raiser. The initial writ was served on Angus MacLeod, Procurator-fiscal, Edinburgh, as pursuer and nominal raiser, and on George Gibson, Gibson's Garage, Broughty Ferry, Angus. The Procurator-fiscal submitted no contentions and was not represented.
The following statement of the material facts is taken from the findings in fact of the Sheriff-substitute (Stevenson):"(1) The subject in medio is a Vauxhall Cresta motor car, reg. no. VSG 633, which is at present held in the Police Garage, Edinburgh, on behalf of the pursuer and nominal raiser. (2) The said Vauxhall car was originally owned by the defender and real raiser. (3) In February 1964 the defender and real raiser advertised the car for sale in the Edinburgh Evening News. (4) On 12th February 1964 a man purporting to be named L. Craig and who was in reality Stanley Burns Galloway called on the defender and real raiser in reply. (5) After extremely friendly negotiations the defender and real raiser agreed to take 375 in payment for the car. (6) Galloway wrote out and gave the defender and real raiser a cheque for 375, signing as L. Craig; the defender and real raiser gave Galloway the registration book and Galloway drove away the car. (7) The next morning the defender and real raiser discovered through his bank that the cheque was one from a cheque book which had been stolen and in consequence was not honoured. (8) On learning that the cheque was stolen the defender and real raiser informed the Edinburgh City Police. (9) On 14th February 1964 a man purporting to be Peter Kerr, and who in reality was Galloway, called in the Vauxhall car at the garage of the defender, George Gibson, saying he was going abroad and wanted to sell the car quickly, but was going to return eventually and buy another car. (10) After negotiations the defender (Gibson) agreed to give him 185 for the car and an additional 15 was to be credited against the purchase of a new car in the future. (11) After a short delay to enable the defender to satisfy himself that no hire-purchase agreement was involved, on 17th February the defender (Gibson) instructed his bank to make payment on the cheque for 185 which he had drawn. (12) In March 1964 the police took possession of the car from the defender (Gibson). (13) Galloway was subsequently convicted of fraud and theft of the car."
On 29th January 1965, after a proof, the Sheriff-substitute found the pursuer and nominal raiser liable in once and single delivery of the car, and ordained him to deliver it to the defender and real raiser, Peter Kerr.
The defender George Gibson appealed to the Court of Session and the case was heard before the First Division (without Lord Migdale) on 11th May 1965.
At advising on 14th May 1965,
LORD PRESIDENT (Clyde).The issue in this case is whether a motor car at present in the custody of the Procurator-fiscal belongs in property now to Mr Kerr (the defender and real raiser) who at one time admittedly...
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