Mendelssohn v Normand Ltd
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE EDMUND DAVIES,LORD JUSTICE PHILLIMORE |
| Judgment Date | 26 February 1969 |
| Judgment citation (vLex) | [1969] EWCA Civ J0226-3 |
| Court | Court of Appeal (Civil Division) |
| Date | 26 February 1969 |
Appeal from Judgment of Deputy Judge Sir Graeme Finley at Bloomsbury & Marylebone County Court on 20th May, 1968.
[1969] EWCA Civ J0226-3
The Master of the Rolls (Lord Denning)
Lord Justice Edmund Davies and
Lord Justice Phillimore
In The Supreme Court of Judicature
Court of Appeal
Mr. D.H. HILL-SMITH (instructed by Messrs. Berry mans) appeared on behalf of the Appellant Defendants.
Mr. RICHARD YORKE (instructed by Messrs. Randall Rose & Co.) appeared on behalf of the Plaintiff Respondent.
On 25th January, 1967, Mr. Mendelssohn and his wife and friends were about to go on a holiday to the Continent. They were going to have lunch at the Cumberland Hotel at Marble Arch. Mr. Mendelsshon drove the car into the Cumberland Garage. It was a Rolls-Royce car with a distinguished number HON 1. It was not his car but his friend's car. Mr. Mendelsshon drove the car up the ramp to the first floor into the open space. He stopped the car and got out. There was luggage on the back seat. One piece was a suitcase containing jewellery and other valuables. It was covered up by a rug. Mr. Mendelssohn was about to look up the car when an attendant came up to him. I will give Mr. Mendelssohn's own account of what took place. He says: "I took my key out of the ignition and was just going to lock the door when the attendant came up and said: 'You are not allowed to look your car'. I explained to him about the luggage and that we were just going across for lunch. I explained to him that the luggage was rather valuable and that I would not be long. He then said: 'Sorry, but those are the rules and I cannot allow you to look It'. So I gave him the keys into his hand and told him as soon as he had moved the car to look it up. This he agreed to do". The attendant gave Mr. Mendelssohn a ticket for the car. Mr. Mendelssohn went off to lunch. After an hour Mr. Mendelssohn came back. He paid his fee at the reception desk and went up to his car. It had been moved a few yards but there was no attendant there at that moment. Mr. Mendelssohn found that the driver's door was unlocked. The key was in the ignition lock. The rug appeared to be just in the came position on the back seat. He got in. At that moment a different attendant came up and took the ticket. Mr. Mendelssohn drove the car on various errands: but between six and seven o'clock that evening, he found that the suitcase was missing. He went back to the garage. Enquiries were made. It was never found. Mr. Mendelssohn was satisfied that it had been taken whilst the car was in the garage. He sued the garage company,Normand Limited, for £200 as compensation for the loss of this suitcase. The Judge held that the suitcase had been stolen from the car when the door was left unlocked. He concluded that it was stolen by one of the attendants at the garage, and in all probability by the man who had received this car on the first floor. The garage company are, therefore, liable for the loss of the suitcase unless they can bring themselves within the exempting conditions. That is clear from Morrison v. C. W. Martin & Sons Ltd. (1966 1 Q.B. 716). The only question for us is whether the garage company are protected by the conditions.
There are two conditions here to be considered. First, a condition on a notice displayed at the reception desk. This could not be seen by a driver when he brought his car into the garage, but only when he came back, to collect it. He might see it when he went to the reception desk to pay the charge. In the window there was a notice saying in large letters: "Customer's Property. Important Notice" and then in smaller letters a condition exempting the company from loss of or damage to a vehicle or its contents. Mr. Mendelssohn had been to the reception desk many times before. He may have seen the notice, but he had never read it. Such a notice is not imported into the contract unless it is brought home to the party so prominently that he must be taken to have known of it and agreed to it, see Olley v. Marlborough Court Limited (1949 1 K.B. 549), and McCutcheon v. David MacBrane Limited (1964 1 W.L.R. 125 at page 134), by Lord Devlin. That was not so here. The garage company did not prove that Mr. Mendelssohn knew of the terms of this notice or that he agreed to it. They cannot, therefore, rely upon it.
Secondly, there was a condition on the ticket. The attendant gave Mr. Mendelssohn a ticket with printed conditions on it. Mr. Mendelssohn had been to this garage a hundred times and he had always been given a ticket with the selfsame wording. Every time he had put it into his pocket and produced it when he cameback for the car. He may not have read it. But that does not matter. It was plainly a contractual document: and, as he accepted it without objection, he must be taken to have agreed to it. That appears from J. Spurling Limited v. Bradshaw, (1956 1 W.L.R. 461 at page 467). As Lord Devlin said in McCutcheon v. David MacBrane Limited: "When a party assents to a document forming the whole or part of his contract, he is bound by the terms of the document, read or unread, signed or unsigned, simply because they are in the contract". The conditions on that ticket were, therefore, part of the contract.
The ticket on the face said: "Cumberland Garage…FOR TERMS OF GARAGE SEE OVER". On the back there is the heading: "Conditions on which vehicles are accepted": and then follow the conditions. No. 1: "The garage proprietors will not accept responsibility for any loss or damage sustained by the vehicle its accessories or contents however caused", I need not mention the others except No. 6: "No variation of these conditions will bind the Garage Proprietors unless made in writing signed by their duly authorised Manager".
The Judge held that the condition No. 1 on the ticket was ambiguous. He took the words: "… any loss or damage sustained by the vehicle its accessories or contents however caused", and he said: "These words seem to me to be inept applied to this case as I cannot envisage loss 'sustained by' the contents of the vehicle". On that ground he held that the defendants could not rely on the condition. I agree that the condition is ambiguous. The ambiguity is due, no doubt, to a printer's error. By mistake the printers missed out the little word "of". The condition should have read: "will not accept responsibility for any lose of, or damage sustained by, the vehicle its accessories or contents however caused". The omission of the word "of" means that the condition is ambiguous. It has a wider meaning, which I can best express by inserting brackets: "any loss (or damage sustained by the vehicle its accessories or contents) however"caused" — so that it means any loss of anything however caused. It has also a narrower meaning by inserting the word "of" so that it reads: "any loss of, or damage sustained by the vehicle, its accessories or contents however caused": so that it covers loss of the contents however caused. The ambiguity affords good reason for adopting the narrower meaning; but not for throwing over the condition altogether. Even the narrower meaning is enough to exempt the garage company. Prima facie the company can rely on it.
I cannot agree, therefore, with the ground on which the Judge based his decision. But the case does not end there. The plaintiff has put in a cross notice. He seeks to support the judgment on other grounds. He relies on the...
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