Tesco v Constain - Thomson Reuters

[1961] 1 Q.B. 31 Page 141960 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)intention to contract with him, as he was. There was no offer which he"Hutchinson" could accept and, therefore, there was no contract.The judge pointed out that the offer which the plaintiffs made was one whichwas capable of being accepted only by the honest P. G. M. Hutchinson of Caterhamand was incapable of acceptance by "Hutchinson."In all the circumstances of the present case I would accept the judge'sfindings. Indeed the conclusion so reached seems self-evident.Is the conclusion to be held wrong in law? If it is, then, as I see it, it mustbe on the sole ground that as "Hutchinson" was present, albeit making fraudulentstatements to induce the plaintiffs to part with their car to him in exchange forhis worthless cheque and was successful in so doing, then a bargain must *50 havebeen struck with him personally, however much he deceived the plaintiffs intothinking they were dealing with someone else.Where two parties are negotiating together and there is no question of one orthe other purporting to act as agent for another, and an agreement is reached,the normal and obvious conclusion would no doubt be that they are the contractingparties. A contrary finding would not be justified unless very clear evidencedemanded it. The unfortunate position of the defendant in this case illustrateshow third parties who deal in good faith with the fraudulent person may beprejudiced.The mere presence of an individual cannot, however, be conclusive that anapparent bargain he may make is made with him. If he were disguised in appearanceand in dress to represent someone else and the other party, deceived by thedisguise, dealt with him on the basis that he was that person and would not havecontracted had he known the truth then, it seems clear, there would be nocontract established. If words are substituted for outward disguise so as todepict a different person from the one physically present, in what circumstanceswould the result be different?Whether the person portrayed, by disguise or words, is known to the other partyor not is important in considering whether the identity of the person is of anymoment or whether it is a matter of indifference. If a man said his name wasBrown when it was in fact Smith, and both were unknown to the other party, itwould be difficult to say that there was any evidence that the contract was notmade and intended to be made with the person present. In King's Norton Metal Co.Ltd. v. Edridge, Merrett & Co. Ltd. [FN53] one Wallis fraudulently describedhimself as Hallam & Co., making it appear a substantial firm with a largefactory. The court held that the use of an assumed name by the buyer did notprevent a finding that the plaintiffs, the sellers of some brass rivet wire, hadcontracted with him.FN53 (1897) 14 T.L.R. 98, C.A.But personal knowledge of the person fraudulently represented cannot, I think,be an essential feature. It might be a very strong factor but the qualities of aperson not personally known might be no less strong. If a man misrepresentedhimself to be a Minister of the Crown or a stockbroker, confidence in the personso identified might arise although the individual so described was wholly unknownpersonally or by sight to the other party.It would seem that there is an area of fact in cases of the *51 type underconsideration where a fraudulent person is present purporting to make a bargainwith another and that the circumstances may justify a finding that,notwithstanding some fraud and deceit, the correct view may be that a bargain wasstruck with the person present, or on the other hand they may equally justify, ashere, a finding the other way.Some of the difficulties and perhaps confusion which have arisen in some of thecases do not, in my view, arise here.If less had been said by the rogue, and if nothing had been done to confirm hisCopr. © West 2004 No Claim to Orig. Govt. Works