Morrisson v Robertson
| Jurisdiction | Scotland |
| Judgment Date | 19 December 1907 |
| Docket Number | No. 50. |
| Date | 19 December 1907 |
| Court | Court of Session |
Lord M'Laren, Lord Kinnear, Lord Pearson.
SaleConsentIdentity of PurchaserEssential ErrorConsensus in idemFraudQuestion with innocent third party.
Telford falsely represented to Morrisson that he was the son of Wilson, Bonnyrigg, and had authority from him to purchase two cows. Morrisson, who knew Wilson to be a dairyman and in good credit, was deceived by the representation, agreed to sell the cows on the usual credit, and delivered them to Telford, who never paid the price. Thereafter Robertson purchased the cows from Telford in good faith and without knowing that they had been improperly obtained, and paid the price demanded by Telford.
In an action by Morrisson against Robertson for delivery of the cows, held (1) that the cows were never sold to Telford, and (2) that the purchaser from him had no title to retain them.
Robert Morrisson, dairyman, Kirkcaldy, raised an action in the Sheriff Court at Stirling, against Peter Robertson, dairyman, Cambusbarron, concluding for delivery of two cows, or, alternatively, for payment of their value.
The pursuer's averments were to the following effect:On 31st January 1906, at the Auction Mart of Messrs Oliver & Sons, where the pursuer had brought certain cows for sale, a man who afterwards turned out to be Alexander Telford, came up to him and falsely represented that he was the son of Mr Wilson, Westrigg, Bonnyrigg, and that he wanted to purchase two cows on behalf of his father. The pursuer had on previous occasions had business dealings with a James Wilson, dairyman, Bonnyrigg, who was a person of good credit, and he believed that the Mr Wilson, Westrigg, Bonnyrigg, whom Telford falsely represented as his father, was the said James Wilson. In this belief, and thinking that he was dealing with a person who was the son of James Wilson, and authorised to treat on his behalf, the pursuer agreed to sell two cows, and delivered them to Telford on the usual trade credit. Thereafter the cows were sold and delivered by Telford to the defender.
The pursuer pleaded;(1) The two cows in question having been obtained by the said Alexander Telford from the pursuer either by theft or under essential error, or both, he is entitled to delivery thereof as craved. (4) The defender having wrongously refused to deliver up said cows specified in the prayer of the petition, the pursuer is entitled to decree as craved, with expenses.
The defender averred that he had purchased the cows from Telford in good faith, and without any knowledge or suspicion of the way in which they had been obtained and that he had paid the price to Telford. This was not disputed by the pursuer.
The defender pleaded;(1) The averments of the pursuer are insufficient to support the conclusions of his action. (2) The two cows in question having been obtained by the man Wilson or Telford by a voidable title, and his title not having been voided at the time of the sale, and the defender having bought the cows in good faith, and without notice of the seller's defective title, the pursuer has no claim for delivery thereof. (6) The pursuer having by his own negligence brought about the loss to himself, is barred from insisting in the present action.
On 16th November 1906 the Sheriff-substitute (Mitchell) repelled the first plea in law for the defender so far as bearing upon the pursuer's case of essential error, and allowed a proof before answer,* which was taken and which established the truth of the pursuer's averments.
On 8th January 1907 the Sheriff-substitute granted decree in terms of the first alternative prayer of the petition.*
The defender appealed to the Sheriff (Lees), who recalled the interlocutor complained of, and assoilzied the defender.
The pursuer appealed.1
At advising,
Lord M'Laren.In this action the pursuer, Robert Morrisson, who is a dairyman, sues for the delivery of two cows which he says are his property, but which, having been obtained from him by fraud, have actually passed into the possession of the defender by what is not disputed to be a bona fide purchase. The case which the pursuer makes on record is of this nature. He says that he had taken the cows to market for sale, but there were no offerers at his price; and then he says that shortly after the cows had been withdrawn from the sale ring, a man, who afterwards turned out to be Alexander Telford of no fixed residence, came up to the pursuer and falsely represented that he wanted to purchase two cows on behalf of his
father, Mr Wilson, Westrigg, Bonnyrigg. The pursuer says that he had on already sold cows to James Wilson, a dairyman at Bonnyrigg, although he was not very well acquainted with him. But he knew that he was a dairyman at Bonnyrigg, as when he purchased cows through the sale ring in the Edinburgh auction marts his name was always given as Wilson, dairyman, Bonnyrigg; and the pursuer believed that the Mr Wilson, Westrigg, Bonnyrigg, whom the said Alexander Telford falsely represented as his father, was the said James Wilson, who is a person of good credit. Then he says that he did not know Alexander Telford at all, but he was induced by the said false representations to believe, and did believe, that this Telford was the son of the said James Wilson, and that he had the authority of the said James Wilson to purchase cows on his behalf. These are the pursuer's averments. I do not think it necessary to go into the evidence, but it may suffice to say that the pursuer's averments are completely proved. He was induced by the fraudulent representations of Telford, which I have just read, to part with two of his cows upon credit. I think that these facts were not seriously disputed, and on the other hand it was not disputed that the defender had purchased the cows for value which he paid without suspicion that they had been improperly obtained.
Now, in these circumstances the question arises whether the pursuer can recover the cows as his property, or whether they have by their transmission to a purchaser for value been irrevocably taken out of the pursuer's possession. This appears to me to be just one of those questions which a lawyer who is willing to think for himself could have no difficulty in solving, even if he had not precedents to guide him. If there had been a contract of sale, then, although the pursuer might have had an action of damages...
To continue reading
Request your trial
-
Spring Salmon & Seafood Ltd
...consent as to the nature of the entries in the accounts of the Company (Gloag & Henderson para. 7.21, 7.26, 7.31; Morrison v RoberstonENR 1908 SC 332; Earl of Wemyss v CampbellUNK (1858) 20 D 1090. These misrepresentations amount to deliberate conduct. The Company took no steps to implement......
-
Leitch & Company v Leydon. Barr & Company v Macgheoghegan
...v. Lewis & Sons, 1917 S. C. 341. 1 Mitchell v. Heys & SonsUNK, (1894) 21 R. 600, Lord Kinnear at pp. 608, 610; Morrisson v. Robertson, 1908 S. C. 332; Lamonby v. Foulds, Limited, 1928 S. C. 89, Lord President Clyde at p. 95, Lord Sands at p. 2 56 and 57 Vict. cap. 71. 3 Benjamin on Sale, (6......
-
Spring Salmon & Seafood Ltd v The Commissioners for Her Majesty's Revenue & Customs, TC 04002
...as to the nature of the entries in the accounts of the Company (Gloag & Henderson paragraph 7.21, 7.26, 7.31; Morrison 15 v Roberston [1908] SC 332; Earl of Wemyss v Campbell (1858) 20 D 1090. These misrepresentations amount to deliberate conduct. The Company took no steps to implement the ......
-
MacLeod v Kerr
...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 defen......
-
Fraud or Error: A Thought Experiment?
...the conundrum presented by the need to reconcile the differing results of the seemingly all but identical cases of Morrisson v Robertson111908 SC 332. and MacLeod v Kerr.221965 SC 253. In both a plausible rogue pretending to be someone else thereby tricked the owner of goods into selling th......
-
Is there an Equitable Exception to Reduction for Forgery?
...(1827) 6 S 19 at 30 per Lord Alloway. no-one can transfer that which he does not have.51 51 Erskine, Inst 3.3.8; Morrison v Robertson 1908 SC 332 at 337–38 per Lord She who has a void title can give only a void title to another. There is perhaps no more mighty a rule in the law of property,......
-
Professor Sir TB Smit en die Ontwikkeling van die Skotse Reg, Oftewel, wat maak ’n Regsakademikus Suksesvol?
...Laastens kom CareyMiller ook tot die gevolgtrekking dat dit moeilik is om te begryp waaromSmith van oordeel was dat Morrisson v Robertson 1908 SC 332 (diebeslissing wat tot die bogenoemde regterlike afjak in MacLeod v Kerr 1965SC 253 aanleiding gegee het) op dieselfde verkeerde uitgangspunt......