NOTES OF CASES
| Date | 01 January 1949 |
| DOI | http://doi.org/10.1111/j.1468-2230.1949.tb00114.x |
| Published date | 01 January 1949 |
NOTES
OF
CASES
MISTAKE
AS
TO
IDENTITY
‘
Consider, sir, the hardship
of
this
interesting case.’
-W.
S.
GILEEXT
(Bab
Ballads).
WE
are
so
accustomed to seeing the fraudulent obtainer of goods
using the shop, the oftice or the post
ofice
as the scene of his
activities that we may well raise
a
curious eyebrow when he
resorts
to
the auction rooms. Between the fraud and his dupe
there is usually a certain intimacy
of
relationship which, at any
rate
as
regards the former, is in the literal sense agoraphobic. But
in
Dennant
v.
Skinner
[1948]
2
All
E.R.
29,
one, King, was not
altogether true to type. He attended an auction sale at which the
plaintiff, an auctioneer, sought to dispose
of
thirty-five vehicles in
a
room containing about a hundred and fifty prospective buyers.
The plaintiff knocked down one vehicle to the highest bidder
and asked his name. The bidder replied that his name was King,
son
of the proprietor
of
King’s Motors of Oxford-a well-known and
reputable concern. The same bidder bought five more cars,
including a Standard saloon car. After the sale, King said that
he would like to pay by cheque. The plaintiff replied that it was
not his practice
to
accept cheques from people he did not know.
King then repeated his representations as to his connection with
King’s Motors and produced a cheque book, the counterfoils in
which indicated that he had paid large amounts to well-known
auctioneers. The plaintiff then accepted King’s cheque, but, with
what proved to be useless caution, persuaded King
to
sign a docu-
ment in the following terms
:-
‘I
hereby certify my cheque
No.
......
will be met on
presentation at my bank. Furthermore,
I
agree that the
ownership of the vehicles will not pass
to
me until such time
as the proceeds
of
my cheque have been credited to South
London
Motor
Association account at Lloyds Bank.’
King was then allowed
to
remove the vehicles.
King’s cheque was not honoured and he was later convicted
of obtaining the vehicles by false pmtences. He had sold the
Standard car
to
C,
who then sold
it
to
the defendant,
an
innocent
purchaser, from whom the plaintiff now sought the return
of
the
cnr
or
its value.
The plaintiff relied
on
three grounds
to
support his claim
:-
1.
The transaction which led
to
King having possession
of
the
car amounted
to
larceny by a trick.
Of
course, King’s conviction for obtaining
by
false pretences did
not bind the court. Hallett
J.
pointed
out that, however much the
87
S8
THE MODERN
LAW
REVIEW
VOL.
12
distinction between false pretences and larceny by a trick has
diminished in importance as a result of the Larceny Act,
1916,
8.
44,
it
is still of vital importance in this class of case. The
learned judge cited with approval the following passage from the
judgment of Fry
J.
in
Smith
v.
Wheutcroft
(1878) 9
Ch.D. at
p.
250
:-
'
Does error in regard to the person with whom
I
contract
destroy the consent and annul the agreement?
I
think that
this question ought to be decided by a distinction. Whenever
the consideration of the person with whom
I
am willing to
contract enters as an element into the contract which
I
am
willing to make, error with regard to the person destroys my
consent and consequently annuls the contract.
.
.
.
On the
contrary, when the consideration of the person with whom
I
thought
I
was contracting does not enter at all into the contract
and
I
should have been equally willing to,contract with any
person whatever as with him with whom"1 thought
I
was
contracting, the contract ought to stand.'
At an auction sale, apart from any question of reserve price, a
lot is usually knocked down
to
the highest bidder, whoever he may
be. Moreover, in the present case, it was clear that up to the time
of the fall of the hammer the auctioneer was not concerned with
the identity of the highest bidder. The evidence showed further
that the mention of his identity was made only, in the ordinary
way, for the purpose of completion of the auctioneer's memoran-
dum. There was, therefore, no question of error
as
to the other
contracting party up to the moment when the contract was made.
Indeed, the contract was made before any misrepresentation by
King occurred at all.
Hallett
J.
had considerable doubt whether the conditions of
sale had been brought to the notice of the bidders
so
as
to
incor-
porate them into the contract of sale. The conditions provided,
inter alia, that the entire purchase-money should
be
paid before
the lots were removed on the day
of
sale, and that cheques ten-
dered in payment would not be accepted unless satisfactory
references were given. Neither
of
these conditions affected the
issue; they dealt with performance
of
the contract by the buyer
and not with the making of the contract
or
with the passing of
property.
King's misrepresentation, then, did not induce the contract.
Subject to what will be said hereafter as to the passing
of
the
property in the
goods,
it
only induced the plaintiff to part with
possession
of
the
goods.
The learned judge considered that the case was indistinguishable
from
Phillips
v.
Bmoks,
Ltd.
[IQlQ]
2
K.B.
248.
The correctness
of
this decision has been questioned,
e.g.,
by the editor
of
Anson's
Law
of
Contract,
and by Professor Goodhart
(57
L.Q.R.
228).
In
Lake
v.
Simmons
119271
A.C.
487,
Lord
Haldane suggested that
the case could be explained on the ground that the fraudulent
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