Rowland v Divall

JurisdictionEngland & Wales
Date1923
CourtCourt of Appeal
[IN THE COURT OF APPEAL.] ROWLAND v. DIVALL. [1922. R. 2746.] 1923 June 11. BANKES, SCRUTTON and ATKIN L.JJ.

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 Sale of Goods Act, 1893, there is in every contract of sale “an implied condition on the part of the seller that …. he has a right to sell the goods,” and if that condition is not satisfied the buyer may if nothing more has happened recover back the price. It is only where the buyer has done something to convert the condition into a warranty that he is driven to seek his remedy in damages. But nothing was here done by the plaintiff which could have that effect. The judge below thought that the mere fact of his retaining possession of the car for a time was sufficient to change the condition into a warranty, but it is contended that that view was wrong. The plaintiff did not get what he had bargained for, which was the property in the car. No property passed to him, for his vendor had no title to convey. During the period in question the plaintiff was not in lawful possession, and was liable to the true owner. Bray J. relied upon the case of Taylor v. Hare.F1 There A. having obtained a patent for an invention of which he supposed himself the inventor agreed to let B. use it in consideration of an annual sum. The sum was paid for several years, when it was discovered that A. was not the inventor, as the invention was not new. B. sued to recover back the money that he had paid, and it was held that he could not recover. But the Court there were of opinion, rightly or wrongly, that B. did derive a benefit from the contract, and the judgment proceeded upon that ground.

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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75 cases
5 books & journal articles
  • Acquiring Title by Theft
    • United Kingdom
    • The Modern Law Review No. 65-4, July 2002
    • 1 Julio 2002
    ...title; but the idea thatthere cannot be a sale unless it confers a good title, deriving from the judgment of Atkin LJ inRowland vDivall [1923] 2 KB 500, 506–507, was exploded long ago: see, for example, D. Tiplady,commenting on the Court of Appeal decision (1988) 51 MLR 240, and R.M. Goode,......
  • MANN V PATERSON CONSTRUCTIONS PTY LTD: THE INTERSECTION OF DEBT, DAMAGES AND QUANTUM MERUIT.
    • Australia
    • Melbourne University Law Review Vol. 44 No. 2, December 2020
    • 1 Diciembre 2020
    ...(147) Fibrosa (n 50) 65. See also Watson & Co v Shankland (1871) 10 M 142, 152 (Lord Inglis P). (148) See, eg, Rowland v Divall [1923] 2 KB 500; Guinness Mahon & Co Ltd v Kensington and Chelsea Royal London Borough Council [1999] QB 215; Benzline Auto Pte Ltd v Supercars Lorinser Pt......
  • OKUPE V. LAJA
    • Nigeria
    • DSC Publications Online Nigerian Supreme Court Cases. 1961 Cases reported in 1961
    • 11 Noviembre 2022
    ...REFERRED TO IN JUDGMENT: 1. Hirachand Punamch v. Temple (1911) 2 K.B. 330; 80 L.J.K.B. 1155; 105 L.T. 25 277. 2. Rowland v. DivaII, (1923) 2 K.B. 500; 92 L.J.K.B. 1041; 129 L.T. 757; 67 Sol. Jo. 703. 3. Hunt v. Silk, (1804), 5 East, 449; 102 E.R. 1142. 30 Moore (with him Akinsanya) for Appe......
  • VISITING AN OLD FRIEND — THE “ROMALPA” CLAUSE
    • Singapore
    • Singapore Academy of Law Journal No. 1997, December 1997
    • 1 Diciembre 1997
    ...Goodhart and Jones “The Infiltration of Equitable Doctrine into English Common Law”(1980) 43 Modem Law Review 489. 79 Ibid, at 510. 80 [1923] 2 KB 500. 81 G McCormack, “All liabilities retention of title clause and company charges”[1989] The Conveyancer and Property Lawyer, 92. 82 J Chitty,......
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