BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!
 |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | |
Scottish Court of Session Decisions |
||
|
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Morrisson v. Robertson [1907] ScotLR 264 (19 December 1907) URL: http://www.bailii.org/scot/cases/ScotCS/1907/45SLR0264.html Cite as: [1907] SLR 264, [1907] ScotLR 264 |
||
[New search] [Printable PDF version] [Help]
Page: 264↓
[Sheriff Court at Stirling.
A, a dairyman, who had on former occasions sold cows to a person he knew to be of credit, was approached, at a market where he had withdrawn two cows from the sale-ring, by B, who was unknown to him, but who led him to believe he was the son of, and acting for, the purchaser of former occasions. A arranged the price and delivered the two cows to B upon credit. Some days later B sold to C for value. A brought an action against C to recover the cows or their value. Held that A could recover from C, inasmuch as there had been no contract of sale between A and B, and B was unable to give a title.
Higgons v. Burton and Another, 1857, 26 L.J., Ex. 342, followed; Cundy v. Lindsay, 1878, 3 App. Cas. 459, applied.
Robert Morrisson, dairyman, Pathhead, raised an action in the Sheriff Court at Stirling against Peter Robertson, Cambusbarron, Stirling, inter alia, for delivery of two cows as therein described, “which were sold by Alexander Telford ( alias Wilson) to the defender” on or about February 2, 1906.
The pursuer averred that two of his cows passed on 31st January 1906, ostensibly by way of sale, into the hands of a man Telford, on the latter's representation that he was Wilson jr., son of a certain dairyman known to the pursuer; and on 2nd February, by sale, from Telford's hands into defenders.
The pursuer, inter alia, pleaded—“The cows in question having been obtained by the said Alexander Telford from the pursuer either by theft or under essential error, or both, he is entitled to delivery thereof as craved.”
The defender, inter alia, pleaded—“(1) The averments of the pursuer are insufficient to support the conclusions of his action. (2) The two cows in question having been obtained by the man Wilson or Telford by a voidable title, and his title not having
Page: 265↓
been voided at the time of the sale, and the defender having bought the cows in good faith and without notice of the seller's defective title, the pursuer has no claim for delivery thereof. (6) The pursuer having by his own negligence brought about the loss to himself, is barred from insisting in the present action.” On November 16, 1906, the Sheriff-Substitute ( Mitchell) repelled the defender's first plea-in-law so far as it bore upon the pursuer's case of essential error, and before further answer allowed a proof.
Note.—“…. It seems clear that error with regard to the identity of a supposed purchaser is error in substantials, prevents consent, and negatives a supposed contract (Bell's Prin., s. 11; 1 Com., 313; Stewart v. Kennedy, 17 R. (H.L.) 25); and the precise question here appears to be whether fraud inducing such error makes it cease to be such error and to have such effects. Recent cases in Scotland are, apparently, awanting; and no very distinct authority from the constitutional writers was referred to. Professor G. J. Bell, who was quoted on both sides, distinguishes essential error and fraud, and he does not consistently make it clear that the presence of fraud takes such error out of the category of essential error, with the results of such error as to third parties. In England there appears to be a succession of cases where essential error made void a supposed sale, induced by fraudulent misrepresentations, to the effect of declaring that there was no sale, and of giving recovery to the original seller out of the hands of an innocent purchaser (Benjamin on Sales, fifth ed., p. 462, also p. 459), and I do not see that there is a difference in principle in this point, which makes these cases inapplicable. Most of these cases are founded on in a note in Lord M'Laren's edition of Bell's Commentaries (vol. i. p. 261); Kingsford v. Murray, 26 L.J.Ex. 83; Higgons v. Burton, 26 L. J. Ex. 342; Hardman v. Booth, 32 L.J. Ex. 105: see also Cundy v. Lindsay, 3 App. Cas. 459; and the doctrine of that note sets forth the view that in the absence of consensus in idem placitum, produced by fraud, there is essential error, with no contract, no transfer, and no title to retransfer, and, specifically, there is no such title in the person of a fraudulent buyer who has induced the belief in a seller, as the inductive cause for sale, that he is selling to some one else”
On January 8, 1907, the Sheriff-Substitute, after the proof, pronounced this interlocutor:—“ Finds in fact (1) that pursuer on or about 31st January 1906, in or near Messrs Oliver & Sons' auction mart, Cattle market, Edinburgh, upon a representation made by a person who afterwards turned out to be a certain Alexander Telford, of no fixed residence, that he was the son of a Mr Wilson, Westrigg, Bonnyrigg, and was acting for him and with his authority in the matter, ostensibly entered into a contract with the said Alexander Telford whereby pursuer purported to sell a brown and white Ayrshire milch cow and a brown and white cross milch cow to the said Alexander Telford as such son, and as acting for and with the authority of said supposed Mr Wilson; (2) that pursuer understood the said supposed Mr Wilson, Westrigg, Bonnyrigg, to be a certain James Wilson, dairyman, Bonnyrigg, whom he knew and whom he considered of good credit; (3) that there was and is no Westrigg in or close to Bonnyrigg, and that said representation by the said Alexander Telford was a false representation; (4) that pursuer was in error with regard to the person to whom he supposed he was selling the said cows, and was induced to sell them as aforesaid by the said false representation on the part of the said Alexander Telford, and that he would not have done so but for said representation; (5) that pursuer's foresaid understanding, though erroneous, was natural and reasonable, and that his subsequent actings were also natural and reasonable in the circumstances; (6) that the said Alexander Telford got possession of the cows, and has not to any extent paid or given value for them to pursuer; (7) that the said Alexander Telford on or about the 2nd February 1906, in Messrs Speedie Brothers' auction mart in Stirling, sold, that is, purported to sell, by private sale the said cows to the defender, at the price of £24 for the two, and that defender obtained possession; (8) that said price of £24 was a fair price, and the defender was in bona fide in said purchase: Finds in law (1) that in said supposed sale pursuer was in essential error, induced by false representation on the part of said Alexander Telford, and that there was no sale of said cows, or either of them, by pursuer to said Alexander Telford; (2) that the said Alexander Telford had no title to sell, and did not effectually sell, said cows, or either of them, to defender; (3) that pursuer is not barred by his actings from seeking to recover said cows from defender: Therefore ordains the defender to deliver the said cows to the pursuer within eight days”
Note.—“… Essential error is a doctrine of Scots Law, applicable I think to the facts of this case, and for similar facts the English decisions seem to arrive at the same conclusion on the ground of no contract of sale, the cases cited coming apparently under the corresponding rule or principle of mutual assent—Benjamin on Sales, 5th ed., pp. 92, 93, and 98. The recent Scots cases Bryce v. Ehrmann, 7 F. 5, referred to and distinguished in Weiner v. Gill, and v. Smith, 1906, L.R., K.B. Div. 575, does not seem to go at all on different lines from those above referred to. I find then that pursuer has proved this part of the case which I found relevant on 16th November.
“It was argued on the proof for defender that there could be no case of essential error here with regard to identity of the purchaser, as there was a person actually present to whom the cows were actually delivered; and it was even urged that it did not matter to the pursuer to whom he sold. But identity and credit are inseparable in reality, and are in effect so treated
Page: 266↓
in the cases cited; and it is admitted that Alexander Telford had no credit or means. The postponement of payment arranged for and the method of it seems to me specially to connect the identity and the credit of this purchaser. Opinions in one or two of the English cases raise other subtleties, which, however, I think do not affect the application of the decisions to the present case. Defender's other argument is that pursuer is barred through his negligence in the matter. But assuming that defender was not negligent himself, I think, on a fair estimate of the circumstances of a sale of cattle, the pursuer was not wanting in ordinary prudence in believing and acting on Telford's story.…”
On March 8, 1907, the Sheriff ( Lees) pronounced this interlocutor—“ Finds in fact (1) that the pursuer on 31st January 1906 sold on credit two cows to a man named Alexander Telford; (2) that Telford stated to the pursuer that he was the son of a Mr Wilson, Westrigg, Bonnyrigg; (3) that there is no Westrigg near Bonnyrigg; (4) that the pursuer causelessly assumed that the Mr Wilson mentioned was a dairyman at Bonnyrigg with whom he occasionally had dealings; (5) that Telford did not say to the pursuer that he was the son of this dairyman, or give him any cause to assume that he was; and (6) that some days afterwards the defender in good faith, and for a full price, bought the said cows from Telford: Finds in these circumstances, as matter of law, that the pursuer has no claim against the defender for delivery of the said cows or for damages: Therefore assoilzies the defender from the conclusions of the action, and decerns.…”
Note.—“…. It is plain the pursuer has no case against the defender merely in respect of Telford's fraud. The pursuer was willing to sell, and possession of the cows was got by Telford with his consent.…
But then it is said the pursuer was under essential error in selling to Telford. What was that error? Not as to Westrigg. The alleged error was in supposing that the Wilson mentioned by Telford was a dairyman with whom the pursuer occasionally dealt. But this error was not induced by Telford. It was the pursuer's own hastiness that caused the error.…
I have looked at the cases mentioned by the learned Sheriff-Substitute, but I am not satisfied that they rule the point. Telford's misrepresentation was not the cause of the sale. The pursuer was willing to sell, and if he had got his money he could not have claimed restoration of the cows on the ground that he would sell only to the dairyman. He was in the market to sell, and it was not the sale that was induced by his rash assumption but the willingness to give credit.”
The pursuer appealed, and argued—There was no contract of sale with Telford. The pursuer had been induced to enter into an alleged contract of sale by the false representation of Telford that he was another person; therefore there was no contract, and consequently Telford had no possessory title to the cows which he could transfer to the defender— Cundy v. Lindsay, 1878, 3 App. Cas. 459. Admittedly there was no question of agency, and there was a third persona—a separate entity in the sense of King's Norton Metal Company, Limited v. Edridge, Merett, & Company, Limited, 1897, 14 T.L.R. 98, A. L. Smith (L.J.) at p. 99—viz., “Wilson of Bonnyrigg,” to whom the pursuer was led to believe he was selling. He was not so selling, and therefore no sale had taken place— Hardman and Others v. Booth, 1863, 32 L.J. Ex. 105, Pollok (C.B.) at p. 107. The judgment of the Sheriff should be recalled and that of the Sheriff-Substitute affirmed.
Argued for the defender (respondent—The Sheriff was right. There had been a sale to Telford by the pursuer, though such sale might be reducible on the ground of fraud, but until it was reduced the contract of sale stood and Telford could give a good title. Further, Telford had been put in possession in such fashion as to give him a title to re-transfer—Sale of Goods Act 1893 (56 and 57 Vict. cap. 71), sec. 25 (2),—and the pursuer having so delivered the cows to him was barred from attempting to recover from the defender. The English cases cited were all distinguishable, In Hardman v. Booth, ut sup., the contract was and could only have been with the particular party who, however, had not authorised the purchase. In Cundy v. Lindsay there was nothing on which to base a contract with the defaulting party—all through the seller thought he was dealing with Blenkiron & Company. In Higgons v. Burton, 1857, 26 L.J. Ex. 342 (cited by the Court) the so-called sale was carried through with one who had been the known agent of the supposed purchasers. Here there was a sale to Telford, and though the goods might have been obtained on false pretences, the defender was a bona fide purchaser for value, without notice, and consequently had a good title. If, as was the fact, the contract had been made with Telford, it was of no consequence that he had misdescribed himself— King's Norton Metal Company, Limited v. Edridge, Merret, & Company, Limited, ut sup.
At advising—
Page: 267↓
Now in these circumstances the question arises whether the pursuer can recover the cows as his property, or whether they have by their transmission to a purchaser for value been irrevocably taken out of the pursuer's possession. This appears to me to be just one of those questions which a lawyer who is willing to think for himself could have no difficulty in solving even if he had not precedents to guide him. If there had been a contract of sale, then although the pursuer might have had an action of damages against the person who obtained the goods by fraud, or might have had an action for reducing the sale, yet if in the meantime the property of the cows had passed by lawful sub-sale to a third person, then the right of that third person, the analogue of the defender in the present case, would be indefeasible. Having acquired the property by purchase from some one who had a lawful title, he would have had a good defence to an action of this nature. But then the case of the pursuer is that there was here no contract of sale. If Telford, the man who committed the fraud, had by false representations as to his own character and credit, obtained the cows from the pursuer on credit, then I think that would have been the case of a sale which, although liable to reduction, would stand good until reduced. But then that was not at all the nature of the case. The pursuer never sold his cows to Telford. He believed that he was selling the cows to a man Wilson at Bonnyrigg, whom he knew to be a person of reasonably good credit, and to whom he was content to give credit for the payment of the price. This belief that he was selling the cows to Wilson was induced by the fraudulent statement of Telford that he was Wilson's son. It is perfectly plain that in such circumstances there was no contract between Telford and the pursuer, because Telford did not propose to buy the cows for himself, and because the pursuer would not have sold them on credit to a man of whom he had no knowledge. Neither was there any sale of the cows by the pursuer to Mr Wilson, Bonnyrigg. Wilson knew nothing about them and never authorised the purchase; the whole story was an invention. There being no sale either to Wilson or to Telford, and there being no other party concerned in the business in hand, it follows that there was no contract of sale at all, and there being no contract of sale the pursuer remained the undivested owner of his cows, although he had parted with their custody to Telford in consequence of these false representations.
So much being premised, then I think it follows that as Telford had no right to the cows he could not give a good title to the defender even under a contract for an onerous consideration. He had no better title to sell the cows to any third person than he would have had if he had gone into the pursuer's byre and stolen the cows. This seems to me to be perfectly clear upon a consideration of known principles, but it is satisfactory that in the judgment which we are to give according to the law of Scotland we are confirmed by a decision of the English Court of Exchequer, in circumstances which are in all respects parallel to those in the present case—I mean the case of Higgons v. Burton, 1857, 26 L.J. Ex. 342. There never were at any time, as I think, such differences in the law of sale in the two parts of Great Britain as would have affected the present question; but under the Sale of Goods Act these differences have been reduced to the vanishing point, and I can have no difficulty in holding that a decision given by an English Court in a case of this kind is an authority which is entitled to the greatest weight, and which if sound would be directly applicable to the same state of circumstances arising in Scotland. Therefore, both on principle and on authority, I think that the pursuer has established his case, and is entitled to a decree for the vindication of his property.
Page: 268↓
Therefore I think that Mr Morton in his able argument put his case on exactly the right ground when he said that there was no contract between his client and Telford, the fraudulent person. He said that if Telford had obtained the cattle by fraudulent contract he should have had nothing to say, but that there was no contract at all with Telford; and upon the facts I agree with your Lordship that that is an exactly accurate statement. If a man obtains goods by pretending to be somebody else, or by pretending that he is an agent for somebody, who has in fact given him no authority, there is no contract between the owner of the goods and him—there is no consensus which can support a contract. The owner—in this case the pursuer—does not contract with the fraudulent person who obtains the goods, because he never meant to contract with him. He thinks he is contracting with an agent for a different person altogether. He does not contract with the person with whom he in fact supposes that he is making a contract, because that person knows nothing about it and never intended to make an agreement; therefore there is no agreement at all. I think the fallacy of the reasoning of the learned Sheriff-Depute becomes quite apparent when one considers that in order to make a contract of sale you must have a certain seller and a certain buyer. The learned Sheriff says that the pursuer was willing to sell and was in the market to sell; but then a general desire to sell to someone is not a contract to sell to any particular person, and it is as clear as evidence can make it that the pursuer never intended to sell to Telford. He knew nothing about him, he never thought of him, and never intended to deal with him. Therefore there was no consensus which could lead to any agreement. For these reasons I entirely agree with your Lordship
Page: 269↓
The Court pronounced this interlocutor—
“ Find in fact (1) that on January 31, 1906, Alexander Telford falsely and fraudulently represented to the pursuer and appellant that he was the son of Mr Wilson, Bonnyrigg, and that he had authority from Mr Wilson to purchase two cows; (2) that the appellant, who knew Mr Wilson of Bonnyrigg to be a farmer and in good credit, was deceived by said representation, and agreed to sell two cows to Mr Wilson on the usual credit, and delivered the cows to Telford; (3) that the respondent, on February 2 following, purchased the said cows from Telford in good faith and without notice of the appellant's right, and paid the price demanded by Telford: Find in law (1) that the appellant did did not sell the two cows to Telford or to Wilson of Bonnyrigg, that the cows were not delivered to Telford upon a contract of sale, but notwithstanding such delivery continued to be the appellant's property; (2) that the appellant was imposed upon and is not chargeable with negligence in delivering the cows to Telford as the supposed agent of Wilson; and (3) that the respondent having obtained the two cows from a person who had no title either of property or possession thereto, is under obligation to restore the cows to their true owner, the appellant, or to account to the appellant for their value as at the date when he acquired them; and remit the cause to the Sheriff-Substitute to dispose thereof in conformity with this finding, and decern.”
Counsel for the Pursuer (Appellant)— Morton. Agent— William Brotherston, W.S.
Counsel for the Defender (Respondent)— Wark. Agents— Macpherson & Mackay, S.S.C.
