Tesco v Constain - Thomson Reuters

[1961] 1 Q.B. 31 Page 11960 WL 18924 (CA), [1960] 3 All E.R. 332, [1960] 3 W.L.R. 504, (1960) 104 S.J. 704(Cite as: [1961] 1 Q.B. 31)*31 Ingram and Others v. Little.Court of AppealCASellers, Pearce and Devlin L.JJ.1960 June 27, 28, 29, 30; July 28.Contract--Mistake--Mistake as to identity--Sale of car to purchaser physicallypresent--Purchaser impersonated reputable businessman--Offer and acceptance--Towhom was offer addressed--Whether mistake vitiated contract-- Whether contractvoid or voidable.Three plaintiffs, joint owners of a car, advertised it for sale. A rogue,introducing himself as H., offered to buy it. When he pulled out his cheque bookto pay for it, the first plaintiff, conducting the negotiations for theplaintiffs, told him that they expected cash, that they were not prepared toaccept payment by cheque, and that the proposed sale was cancelled. The roguethereupon said that he was P.G.M.H., a reputable businessman, living at anaddress in Caterham, and having business interests in Guildford. The plaintiffshad never heard of P.G.M.H., but the second plaintiff forthwith went to the localpost office, and ascertained from the telephone directory that there was such aperson as P.G.M.H., living at the address given by the rogue. The secondplaintiff told the first plaintiff what she had learnt and, as the result of thatinformation, they believed that the rogue was P.G.M.H. and decided to let therogue have the car in exchange for his cheque.The rogue had nothing whatever to do with the real P.G.M.H., and the rogue'scheque was dishonoured on presentation. Meanwhile, the rogue had sold the car tothe defendant, who bought it in good faith.On a claim by the plaintiffs against the defendant for the return of the car,or, alternatively, damages for its conversion:-Held(Devlin L.J. dissenting), that where a person physically present andnegotiating to buy a chattel fraudulently assumed the identity of an existingthird person, the test to determine to whom the offer was addressed was how oughtthe promisee to have interpreted the promise; applying that test to the presentcase and treating the plaintiffs as the offerors, the offer was made solely to*32 the real P.G.M.H., the rogue was incapable of accepting it, and theplaintiffs' mistake, therefore, prevented the formation of a contract with therogue; accordingly, the plaintiffs' claim succeeded (post, pp. 53, 55, 61).Dictum of Viscount Haldane in HLake v. Simmons[1927] A.C. 487, 500; 43 T.L.R.417, H.L. applied.HPhillips v. Brooks Ltd.[1919] 2 K.B. 243 ; 35 T.L.R. 470 distinguished.Hardman v. Booth (1863) 1 H. & C. 803 and Cundy v. Lindsay(1878) 3 App.Cas.459, H.L. considered.Per Devlin L.J. There was nothing to rebut the ordinary presumption that thefirst plaintiff was addressing her acceptance to the person to whom she wasspeaking. Therefore, there was offer and acceptance in form. In the present case,the rogue's identity was immaterial. His credit-worthiness was material, for theplaintiffs were really concerned with his credit-worthiness, not with hisidentity, but credit-worthiness in relation to a contract was not a basic fact,and a mistake about it did not vitiate a contract (post, pp. 67, 69).Decision of Slade J. affirmed.Copr. © West 2004 No Claim to Orig. Govt. Works