Rowland v Divall
Jurisdiction | England & Wales |
Date | 1923 |
Court | Court of Appeal |
Sale of Goods - Implied Condition that Vendor has a Right to Sell - Breach of - User of Goods by Buyer - Total Failure of Consideration - Recovery Back of Price.
The plaintiff bought a motor car from the defendant and used it for several months. It then appeared that the defendant had had no title to it, and the plaintiff was compelled to surrender it to the true owner. The plaintiff sued the defendant to recover back the purchase money that he had paid, as on a total failure of consideration:—
Held, that notwithstanding that he had had the use of the car the consideration had totally failed, and he was entitled to get the purchase money back. The use of the car that he had had was no part of the consideration that he had contracted for, which was the property in and lawful possession of the car, whereas what he got was an unlawful possession which exposed him to the risk of an action at the suit of the true owner.
APPEAL from the judgment of Bray J. at the trial.
In April, 1922, the defendant, who lived at Brighton, bought an “Albert” motor car, and on May 19 he resold it to the plaintiff for 334l. The plaintiff, who was a motor-car dealer, drove the car from Brighton to Blandford, where he carried on business. When he got there he repainted it and exposed it for sale in his showroom. In July, 1922, he sold it to a Colonel Railsdon for 400l. In September, 1922, the police took possession of the car on the ground that it had been stolen from the owner by the person from whom the defendant had bought it, and the plaintiff refunded to Colonel Railsdon the 400l. that he had paid. Under these circumstances the plaintiff brought his action against the defendant to recover the price that he had paid to the defendant for the car, 334l., as money paid the consideration of which had failed. Bray J. held that as the plaintiff and his purchaser had had the use of the car from May to September there had not been a total failure of consideration, and that under those circumstances the plaintiff must be limited to his remedy in damages. He accordingly gave judgment for the defendant.
The plaintiff appealed.
Rayner Goddard K.C. and Tucker for the appellant. Since the passing of the
Doughty and R. Jennings for the respondent. Here the buyer was not entitled to rescind the contract of sale, for there can be no rescission where a restitutio in integrum is no longer possible. And after the car had suffered the deterioration which was necessarily incidental to a four-months' user it was impossible to restore the seller to his original position...
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