NOTES OF CASES
| Published date | 01 March 1961 |
| DOI | http://doi.org/10.1111/j.1468-2230.1961.tb02176.x |
| Date | 01 March 1961 |
NOTES
OF
CASES
MISTAKE
INTER
PRAESENTES
IN
Zngrain
v.
Little
the co-owners of a car advertised
it
for sale.
They were visited by a man calling himself
‘‘
Hutchinson
”
to
whom they offered to sell
it
for
$717.
He began to write a cheque
and, when that was refused, falsely stated that he was
P.
G.
M.
Hutchinson of Stanstead House, Stanstead Road, Caterham. This
was checked in a telephone directory, the cheque was accepted and
‘‘
Hutchinson
”
was allowed to take the car which he sold to a
dealer, the defendant in this case. When the cheque was dis-
honoured the plaintiff co-owners brought proceedings for conversion
and succeeded before Slade
J.
This decision was upheld by the
Court of Appeal (Sellers and Pearce
L.JJ.,
Devlin L.J. dissenting).
Both Sellers and Pearce
L.JJ.
were agreed that when
a
deceiver passes himself off as another
(‘
whether by disguise
or
merely by verbal cosmetics,” as Pearce L.J. put
it,
then. there
could be operative mistake
inter prae~entes.~
It
will be recalled
that
in
Phillips
v.
Brooks
Horridge
J.
had expressed the view that
there could not be mistake
inter praesentes
but that this was much
criticised.
It
was suggested by Professor Wade that the decision
could be supported because no misrepresentation was made until
a contract had been formed. Nothing in the judgment
of
Horridge
J.
indicates this
“
chronological
”
explanation but
it
was adopted by Lord Haldane in
Lake
v.
Simmons
and the most
significant point in
Zngram
v.
Little
is that the majority follow
Lord Haldane and are at pains
to
indicate that they regard
Phillips
v.
Brooks
as a decision on its. special facts.8
A
“
chrono-
logical
)’
interpretation was excluded in
Ingram
v.
Little
because
if
there had been a contract prior to the misrepresentation, which
Sellers and Pearce
L.JJ.
doubted, it had been repudiated and
discharged by the rogue’s refusal to pay cash. From that point the
negotiations were directed
to
the formation of a new and different
contract-a credit sale as distinct from a cash transaction.g
1
[1960] 3 W.L.R. 504; [1960] 3
All
E.R.
332.
2
[1960].3 W.L.R. at pp. 511 and 517; [1960] 3
All
E.R.
at
pp. 337 and .341.
3
Cf.
Unger (1955) 18 M.L.R. 259
at
p. 266, where operative mistake
tnter
4
119191 2
K.B.
243.
5
(1922)
38
L.Q.R. 201
at
p. 204.
6
See Glanville Williams, 23 Can.B.R.
at
D.
276, note 11;
Anson,
Contract,
praesentes
is limited
to
physical disguise.
2lst ed., p. 264, note 1.
and 343.
7
[1927] A.C. 487
at
pp. 501-502.
8
[1960] 3 W.L.R.
at
pp. 512, 514 and
520;
[1960] 3
All
E.R.
at
pp. 337, 339
9
[1960] 3 W.L.R.
at
pp. 510 (Sellers
L.J.)
and
518 (Pearce
L.J.);
[1960]
3
All
E.R.
at pp. 336 and 342.
267
268
THE
MODERN
LAW
REVIEW
Vot.
24
It
has been pointed out both judicially
lo
and academicaliy
that Lord Haldane by explaining
Phillips
v.
Brooks
on a ground
other than that on which it was expressly decided impliedly dis-
approved the express ground. Hence
it
seems that the majority in
Ingram
v.
Little
also in effect disapprove
Phillips
v.
Brooks,
in
spite of Sellers L.J. saying that as the case had stood for
so
long
he would not feel justified in saying
it
was wrong. Furthermore
both Sellers and Pearce L.JJ. regarded
l2
Hardman
v.
Booth
as clear authority that there could be mistake of identity
inter
praesentes.
They were also at one on two other points which have been the
subject of speculation. They held that
it
was not necessary that
the victim should hive had previous personal knowledge of the
person whose identity was assumed by the deceiver but such know-
ledge was important in considering whether identity was
“
of
any
moment
or
whether
it
is a matter of indifference.” Again they
appeared to regard a real third party portrayed by the deceiver as
essential to mistake
of
identity
l5
thus giving no countenance to
those
l6
who have defended
Sowler
v.
Potter.17
Pothier makes an inevitable appearance in the judgments and
the majority, as might have been expected, do not regard him as a
safe guide to the common law position.1s The importance of this
seems to be that
it
bears on a problem on which there is a conflict
of opinion between Dr. Goodhart
l9
and Dr. Glanville Williams
2o
-must mistake of identity be material
or
not? The rejection of
Pothier, coupled with the fact that the majority cite passages from
Dr.
Goodhart in which he makes the point that English law
is
not
concerned with motive, tells against materiality. On the other
hand, the already cited remarks of Sellers
L.J.
on the victim’s
previous knowledge
of
the person portrayed appear to favour the
opposite view, and even stronger support for
it
can be found in the
judgments of Pearce and Devlin
L.JJ.
Pearce
L.J.
contrasts the case of a man passing himself off as
a
famous portrait painter where mistake of identity would be of
vital importance, with the shopkeeper selling in an ordinary
10
Gresson
P.
in
Fawcett
v.
Star
Car
Sales
[l960]
N.Z.L.R. at
p.
414.
11
Williams,
23
Can.B.R. at
p.
276,
note
11.
Contra
Hallett
J.
in
Dennont
v.
Skinner
[1948] 2
K.B.
164
at
p.
169.
12
[1960] 3
W.L.R. at
pp.
514
and
520; [1960]
3
All
E.R. at
pp.
339
and
343-344.
1s
(1863) 1
H.
&
C.
803.
14
[l960] 3
W.L.R.
at
pp.
511
and
516-517; [1960]
3
All
E.R. at
pp.
337
and
15
[1960] 3
W.L.R.
at
pp.
514-515
and
51G-617; [1960] 3
All
E.R.
at
pp.
337
16
Wilson
(1954) 17
M.L.R.
615.
17
[1940] 1
K.B.
271.
The remarks in
Ingram
v.
Little
support
the main
18
[l960] 3
W.L.R. at
pp.
515
and
515:516; [1960]
3
All
E.R. at
pp.
339-2340
19
57
L.Q.R.
228.
20
23
Can.B.R.
at
pp.
386396.
341.
and
341.
For
a
full
discussion see
23
Can.B.R. at
pp.
283-2887.
argument in
(1955) 18
M.L.R.
259.
and
340.
See
also
Cheshire
(1944) 60
L.Q.R.
184-185.
To continue reading
Request your trial