Tesco v Constain - Thomson Reuters

[1961] 1 Q.B. 31 Page 211960 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)being written out. Then, apparently, as a postscript or variation of thetransaction, the false Sir George obtained leave to take off one of the articleswithout waiting for the cheque to be cleared, and the vendor thereby relinquishedhis lien on that article. The plaintiff in re-examination had said that he had nointention of making any contract with any other person than Sir George, but thosewords could hardly be true literally, since he had apparently made a contractwith the man before he was told that he was Sir George.FN76 H[1919] 2 K.B. 243.Viscount Haldane in HLake v. Simmons [FN77] said of that case: "Horridge J.found, as a fact, that though the jeweller believed the person to whom he handedthe jewel was the person he pretended to be, yet he intended to sell to theperson, whoever he was, who came into the shop and paid the price, and that themisrepresentation was only as to payment." In my view, it was a border-line casedecided on its own particular facts, and is in no wise decisive of the casebefore us.FN77 H[1927] A.C. 487, 501.Hardman v. Booth [FN78] was decided the other way. There the plaintiffs, goingto the place of business of Gandell & Co., which consisted only of ThomasGandell, were fraudulently misled at interviews with his son Edward, anunauthorised clerk in the business, into invoicing goods to Edward Gandell & Co.and paying with a bill of exchange similarly made out. It was held that there wasno contract. Pollock C.B. said [FN79]: "It is difficult to lay down any generalrule by which, at all times and under any circumstances, it may be determinedwhether or no there is a contract voidable at the option of the party defrauded,but in this case I think it clear that there was no contract. Mr. Hawkinscontended that there was a contract personally with Edward Gandell, theindividual with whom the conversations took place ... but the plaintiffs supposedthey were dealing with Gandell & Co., the packers, to whom they sent the goods;the fact being that Edward Gandell was not a member of that firm and had noauthority to act as their agent. Therefore at no period of time were there twoconsenting minds to the same *61 agreement." Wilde B. said [FN80]: "It is clearthat there was no sale to Gandell & Co., because they never authorised EdwardGandell to purchase for them; and it is equally clear that there was no sale toEdward Gandell, because the plaintiffs never intended to deal with himpersonally." That case, however, as a clearer case of there being no contractthan is the present one, since there the plaintiffs had gone to the premises ofGandell & Co. to deal with that firm, and on those premises they had dealt withsomeone who duped them into believing that he was a member of the firm. Had theplaintiffs in the present case gone to Stanstead House especially to deal withthe real Hutchinson and been duped on the premises by the false Hutchinson, theircase would have been very clear.FN78 1 H. & C. 803.FN79 Ibid. 806.FN80 1 H. & C. 803, 808.In HLake v. Simmons [FN81] the court was dealing with a somewhat differentproblem, namely, whether a jeweller had "entrusted" possession of jewellery to acheat, and it held that he had not. Viscount Haldane there said [FN82]: "Incircumstances such as these, I think there was no such consensus ad idem as, forexample, Lord Cairns in his judgment in Cundy v. Lindsay [FN83] declared to berequisite for the constitution of a contract. No doubt physically the womanentered the shop and pretended to bargain in a particular capacity, but only onthe footing of being different person from what she really was. There was neverany contract which could afterwards become voidable by reason of a falserepresentation made in obtaining it, because there was no contract at all,Copr. © West 2004 No Claim to Orig. Govt. Works