Tesco v Constain - Thomson Reuters

[1961] 1 Q.B. 31 Page 81960 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)case, the personality of the other party was a material element of the contract.The plaintiffs could therefore succeed quite apart from the test propounded byProfessor Goodhart, and even if HPhillips v. Brooks Ltd. [FN28] was rightlydecided. That case depended on the finding of fact that the jeweller intended tocontract with the customer in the shop whoever he was. But the judge found in thepresent case that the plaintiffs did not intend to contract with the rogueHutchinson.FN24 (1857) 2 H. & N. 564, 565.FN25 [1942] 1 All E.R. 220, C.A.FN26 H[1934] A.C. 455, 463; 50 T.L.R. 454, P.C.FN27 H[1920] 3 K.B. 497.FN28 H[1919] 2 K.B. 243.It is submitted in particular regarding HPhillips v. Brooks Ltd. [FN29] first,that if Horridge J. came to the conclusion that there can be no operative mistakeas to identity inter praesentes, then that decision was wrong and contrary toauthority: Hardman v. Booth [FN30] and now HLake v. Simmons. [FN31] That this wasin fact the conclusion is the view taken in the Goodhart article, and there isstrong support to be gathered from the report for the drawing of this inference.If the headnote correctly states the decision, then the decision is wrong. In sofar as Horridge J. adopted the circular reasoning to be found in Edmunds v.Merchants Despatch Co., [FN32] this is to be regretted. Secondly, the statementin the headnote is, in any event, not the law having regard to Lake v. Simmons.Thirdly, the decision provides no warrant for the proposition that Pothier ispart of English law. The second leg *42 of the Pothier statement was neverexpressed to be the basis of the decision, although the first leg of thestatement was held in terms not to govern the situation. Fourthly, it appearsthat Horridge J. so held for two reasons: (a) because (as he found) "the sellerintended to contract with the person present and there was no error as to theperson with whom he contracted "; (b) because Smith v. Wheatcroft [FN33](wherePothier was quoted) was an action for specific performance, and misrepresentationwould have been an answer to enforcement. Fifthly, the true ratio decidendi isnot apparent, but if it is to be looked at simply as a decision depending on itsspecial facts, namely, that the jeweller intended to sell to the person in theshop, whoever he was, then Slade J. in the present case could have found infavour of the plaintiffs without that involving a refusal to follow Phillips v.Brooks Ltd. It has been suggested as explanatory of the decision that the bargainin Phillips v. Brooks Ltd. was made before the misrepresentation, which only wentto payment: see per Viscount Haldane in HLake v. Simmons. [FN34] No reliance isplaced on this explanation, because such a notional separation of the passing ofproperty and payment for it in an over-the-counter sale would appear to beinconsistent with principle: see Pharmaceutical Society of Great Britain v. BootsCash Chemists (Southern) Ltd. [FN35] Moreover, such a reason for his decision wasnever advanced by Horridge J. See particularly the first paragraph of hisjudgment. Sixthly, if HPhillips v. Brooks Ltd. [FN36] is a right decision on itsparticular facts, then the present case is to be distinguished because: from thebeginning the fraudulent person claimed to be Hutchinson; the plaintiffs heremade their attitude plain, as shown on the failure of the first attempt atcontract in the absence of cash; no ostensible agreement of sale was achieveduntil after the fraudulent person had put forward as the contracting party anexisting person actually living at an address stated; if the property in this carwas ever to pass, it could on any showing only do so after the plaintiffs hadaccepted that person as the contracting party.FN29 H[1919] 2 K.B. 243.Copr. © West 2004 No Claim to Orig. Govt. Works