Spicer (Keith) Ltd v Mansell

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
Judgment Date09 December 1969
Judgment citation (vLex)[1969] EWCA Civ J1209-4
Date09 December 1969

[1969] EWCA Civ J1209-4

In The Supreme Court of Judicature

The Court of Appeal

(Civil Division)

(From: His Honour Judge Pennant – Bournemouth County Court)


Lord Justice Harman

Lord Justice Edmund Davies and

Lord Justice Widgery

Keith Spicer Limited
James Robert Mansell

Mr. PATRICK MAYHEW (instructed by Messrs. Peacock & Goddard, Agents for Messrs. Willmot & East, Poole, Dorset) appeared on behalf of the Appellants (Plaintiffs).

Mr. ROBERT REID (instructed by Messrs. Haywards) appeared on behalf of the Respondent (Defendant).


This case involves a modest sum of just under £150 hut it has been argued with a learning and eloquence worthy so to speak of a bigger cause, and I am much obliged to both counsel for the way they have entered into a not at all easy controversy – as indeed the judge below decided.


Now the action was an action for goods sold and delivered. The plaintiff company no doubt did sell and deliver £150 worth or so of goods. To whom they delivered them did not very clearly appear, but as the case was launched in the County Court the allegation was that the goods were ordered by one Bishop as agent for the defendant and delivered – as they undoubtedly were – at the defendant's place of business, which was a restaurant. One does not know who accepted the goods or who signed for them: the plaintiffs failed to prove that. But having so launched their action the plaintiffs were met by a strong denial by the defendant of an informal character in which he said that Bishop, the so called agent, never was his employee or his agent but ordered the goods on his own behalf. The plaintiffs, having considered that, changed their tune and said: "Oh, in fact you, Bishop, and you, the defendant, were not employee and employer: you were partners, and you had agreed so to act and were trading as such. Admittedly you intended to carry on the trade through the means of a limited company, which was in fact afterwards formed, but being" (I suppose) "in a hurry to start business you agreed to act as partners until the company was formed, and it was in pursuance of that agreement that the goods were ordered by Bishop, and he had the authority of the partnership so to do; and Mansell as the other partner is liable, Bishop being insolvent".


The learned County Court judge held that there never was a partnership, and the first point to consider, I suppose, is whether that is a decision of fact from which, on the amount at stake, there is no appeal. The learned judge found certain what may be called primary facts, and, as a secondary fact, so to call it, he found that they added up to no partnership.


In my judgment, with respect to the old case of Wood v. Argyle, in 6 Manning and Granger, which was cited to us, it is not right to say in these days that that is the kind of finding of fact from which there is no appeal. It is a finding of mixed law and fact. It is an inference from the primary facts which the judge found. I say nothing about the Chief Justice being right in the case cited, in which he left the question "partnership or no partnership" to the jury, but I do not think that to-day you would count it as a finding of fact from which there is no appeal. Anyway I shall assume that an appeal does lie.


What then do the primary facts come to? They come to this, that Mansell and Bishop, having lost their employment elsewhere, decided to go into business together. They decided to run in agreement and to form a limited company which was going to carry on business in Mansell's restaurant. As I say, eventually there was such a company incorporated. They then came to the conclusion that they would do certain things preparatory to the formation of the company so that the company could carry on business at once when it was formed; and one of the things that they did, or that Bishop did, was to order these goods. He intended them to be used not by him and Mansell as partners but by the company when it should be formed, and I have no doubt that a good deal of loose thinking went on, but everything that was done that we know was done with a view to the company carrying on business. It was all, I think, preparatory to that event, and the question is whether that involves in itself a partnership.


In that model piece of legislation the Partnership Act, section 1 (1), you find this: "Partnership is the relation which...

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