Ward (R v) Ltd v Bignall
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE DIPLOCK,LORD JUSTICE RUSSELL |
| Judgment Date | 17 February 1967 |
| Judgment citation (vLex) | [1967] EWCA Civ J0217-3 |
| Court | Court of Appeal (Civil Division) |
| Date | 17 February 1967 |
[1967] EWCA Civ J0217-3
Lord Justice Sellers
Lord Justice Diplock and
Lord Justice Russell
In The Supreme Court of Judicature
The Court of Appeal
(Civil Division)
(From: His Honour Deputy Judge Ellison-Woolwich County Court)
Mr. MICHAEL HYAM (instructed by Messrs. Dollman & Pritchard, Agents for Messrs. Dean, Lauderdale & weedon, Welling, Kent) appeared on behalf of the Appellant (Defendant).
Mr. ANTONY WHITAKER (instructed by Messrs. Carters) appeared on behalf of the Respondents (Plaintiffs).
LORD JUSTICE SELLERS is May, 1965, the plaintiffs wished it sell two motor vehicles, A Vanguard Eatatear and a Ford Zodiac, for which, by advertisement, they ware asking £395 and £490 respectively. The defendant, who Is a dealer In motor vehicles, saw the advertisement and on the 6th May, 1965, he went to Mr. Ward's private house. There he examined both the vehicles and then offered Mr. Ward, for the plaintiffs, £850 for the two, which was accepted. No log books were produced or oven mentioned. The defendant paid £25 in cash and went off to get the balance of £825 in cash from his bank and it was arranged that he would return with the balance of the price and pay It to Mrs Ward. whilst away the defendant had second thoughts. The Vanguard had been advertised as 1962 and the defendant thought that so to describe it was a misrepresentation or a misdescription. He told Mr. Ward that he would not. In the circumstances, proceed with the purchase. The defendant offered to pay £800 instead of the 6850. That was refused The defendant then offered to take the Zodiac alone for 6500 and that was refused.
On the same day the plaintiffs consulted their solicitors. They wrote a letter to the defendant in which they quoted what the defendant had written on the back of one of the company's cards! "A.M. Bignall Purchase Vanguard Estate Ford Zodiac for sum of 3850", signed "A.M. Bignall; £25 deposit paid as seen and approved".
In view of the argument before this Court it is necessary to quote farther from the letter. It continues: It continues: "In view of the foregoing it is our view that ownership of the said motor ears passed to yourself. Mr. Ward further states that you left his home for the purpose of obtaining the balance of the agreed purchase price in cash, but that on your return, you informed Mrs. Ward in the absence of Mr. Ward that you did not Intend to purchase the Vanguard bat would only purchase the Ford which conversation you later repeated to Mr. Ward over the telephone. As mentionedabove, ownership of the two cars has now passed to yourself, and all that remains is for you to collect the same, and to pay to our client! the balance of the agreed purchase price.
We have advised our clients that a binding agreement has been made by you to purchase the said motor ears, and that failure by you to take possession thereof, and to pay the balance of the agreed purchase price will place you in broach of the said agreement, and will entitle them to recover against you by way of damages, such sum below the price agreed by you, should it be necessary to sell them elsewhere. In these circumstances please accept this letter as notice calling upon you to take delivery of the said ears and to pay the balance duo of £825, on or before Tuesday next the 11th instant, failing which our clients will consider you in breach of the said agreement, will dispose of the said motor ears for the best price they can obtain, and in the event of them receiving a price below that agreed by yourself, will look to you for the difference after giving credit for the 625 already paid by you".
The defendant did nothing except to consult a solicitor and to maintain that there had been misrepresentation.
On the 12th October, 1965, the plaintiffs" solicitors wrote to the defendant's solicitor and, after denying that there had been any misrepresentation and pointing out that the defendant had Inspected both vehicles before arriving at the contract, the letter continues "In an effort to mitigate the damage following your client's repudiation our clientssold the said Vanguard for £350 bet their efforts to procure a purchaser for the Zodiac have been completely fruitless
The Vanguard was sold on or about the 24th May, 1965 without any further communication to the defendant up to that date than the letter of the 6th Bay. The plaintiffs also endeavoured to sell the Zodiac but it has remained unsold and in the plaintiffs' possession throughout. Without apparently any farther communication between the parties the writ in this action was taken out on the 9th February, 1966.
That in its terms was a claim for damages, being the balance of the contract price £825 less the £350 received from the sale of the Vanguard plus £22. 10s. 0d. advertising expense in respect of the two cars since the date of the contract, a total of £497 10s. 0d.
When the matter came before the learned deputy judge Ellison the defence pursued two defences. Firstly, that there had been no enforceable contract because the Vanguard, It was alleged, was a 1961 oar and it had been misrepresented or described wrongly as 1962 and the defendant had rightly refused to perform the contract. The Vanguard was in fact first registered in 1962 and there was no model of this type of 1962 manufacture. The learned judge found no misdescription and no misrepresentation and that there was a binding contract on the 6th May, 1965 Prom that finding there is no appeal before us.
Secondly, the defence relied on the defendant's offer to buy the Zodiac for £500 and the plaintiffs' refusal of it and said that the plaintiffs had failed to mitigate their loss.
The judgment held that this was not an unfettered offer. It was to be substituted for the contract to buy the two vehicles. This was clearly right, but judgment was thereupon entered for the plaintiffs for 4497. 10s. 0d. damages and costs. The position was at the end of the trial that the plaintiffs had the Zodiac, which had been in their complete possession throughout with the log book registered in their name, and they had also the judgment in their favour for 4497. 10s. 0d. This could not be right, except on the basis of a lien, to which no reference was made. The action in the lower court followed, as I think, the statement of claim and was in substance for damages for non acceptance. That was the plaintiffs' proper claim, in my view, but no questions arose about the Zodiac what had happened to it since the 6th May was not investigated except that the plaintiffs had advertised it for sale unfailingly on some seven occasions between the 13th May and the 10th August, 1965 He value was placed on it at the trial. By the letter ofthe 12th October it had bean offered to the defendant for £475 and he refused it.
Throughout the trial it was assumed, as I see it, that the property had not passed to the defendant on the 6th May notwithstanding the plaintiffs' solicitors' statement to the contrary. If reference had been made to the issue, which it was not, the Court would have had to have regard to sections 17 and 18 of the Sale of Goods Act, 1893 In this Court the plaintiffs' counsel stressed section 18, rule 1, but that only applies "unless a different intention appears". In accordance with section 17 (2) the Court has to have regard in finding the intention of the parties "to the terms of the contract, the conduct of the parties and the circumstances of the case". The fact that the defendant after Inspection agreed to buy the two vehicles on the morning of the 6th May, 1965 and paid £25 in cash at the time goes but little way to establishing that the parties intended the vehicles then and there to become the buyer's property. There was not even a payment by cheque the buyer went to his bank to get cash and that was to be handed over to Mrs. Ward. He had not even seen the log book or inquired of its existence. No mention was made of the removal of the vehicles or of their insurance although it is possible (no evidence was adduced) that the defendant as a dealer had some floating insurance cover.
I would hold that the property had not passed to the buyer and all that has happened since the 6th May, 1965 fits in with that view and is not in harmony with the two vehicles being transferred to the buyer when the bargain was made. The plaintiffs' remedy was rightly pursued below as damages for non acceptance.
I need not develop that further as in my view the result of this case would be the same whether the property had passed or not at the time of the sale.
As soon as the appeal was opened on behalf of the buyer against the judgment for 4497 10s. 0d. learned counsel for theplaintiffs the respondents here, asked leave to amend the grounds of his cross appeal Hi contention was that the claim throughout had been for the balance of the price of the two cars bargained and sold and that the Zodine car had been the defendant's vehicle and not the plaintiffs' Mince the moment of the contract of sale. He relied on section 48 of the Sale of Goods Act, 1893.
The respondent ' counsel was allowed to advance his argument but I do not think it was open to him strictly as it was not raised in the Court below and the point of law did not arise solely on the facts established in that Court. As I have said, there was no finding, indeed Issue, as to whether the property had passed at the time of the agreement to purchase. If the property did pass on the 6th May the position is governed by various sections of the 1893 Act. Neither vehicle passed into the possession of the defendant. The 2odlac has remained with the plaintiffs throughout and the Vanguard was sold by them about the 22nd May, 1965.
As a binding contract has teen established the plaintiffs were unpaid sellers and by section 39 (1) (c) they had a right of resale as...
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