Tesco v Constain - Thomson Reuters

[1961] 1 Q.B. 31 Page 281960 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)FN104 [1926] 1 K.B. 382; 42 T.L.R. 168.FN105 H[1926] 2 K.B. 51; 42 T.L.R. 425, C.A.FN106 H[1926] 2 K.B. 51, 71, 72.In the House of Lords, [FN107] the decision of the Court of Appeal wasreversed. Viscount Haldane said [FN108] that for the purpose of an entrustingwithin the meaning of the policy there must be a definite contract. He held thatthere was never any contract at all, because the plaintiff was entirely deceivedas to the identity of the person with whom he was transacting; it was only on thefooting and in the belief that she was Mrs. Van der Borgh that he was willing todeal with her at all. This is a bare summary of his reasoning; it is sufficientfor my purpose to say that it is clear authority for the view from which I amdissenting. None of the rest of their Lordships expressly followed ViscountHaldane. Lord Atkinson's opinion [FN109] turned on the construction of thepolicy. He held that the entrusting within the exception could not mean thedelivery in all good faith by a dealer of goods to a customer which that customerhad planned to steal. He also inclined to McCardie J.'s view that the woman wasnot a customer. Lord Blanesburgh [FN110] based his conclusion on the simpleground that the woman was not a customer, but entirely agreed with the judgmentof Viscount Sumner. Lord Wrenbury [FN111] simply concurred.FN107 H[1927] A.C. 487.FN108 Ibid. 499.FN109 Ibid. 511.FN110 Ibid. 513.FN111 Ibid. 513.It is clear, therefore, that Viscount Haldane's reasoning can be accepted asthe ratio decidendi only if it was assented to by Viscount Sumner. I know thatthe fault must be mine, but I find the speech of Viscount Sumner very difficultto interpret. I think that the operative part of his reasoning begins [FN112]after he has set out the policy. He gave a special meaning to the word"entrusted," derived from the use of the same word in an earlier part of thepolicy. He held that it meant entrusted on the condition of sale or return. Heheld that there was not an *72 entrusting to the woman on this condition; ifthere was an entrusting, it was either to Van der Borgh or Commander Digby, oneof whom was imaginary and the other was not a customer. That was his firstreason. The second reason [FN113] was, I think, an acceptance of Atkin L.J.'sview of the effect of larceny by a trick. Finally, he agreed [FN114] that thewoman was not a customer for the purpose of the exceptions clause.FN112 Ibid. 507.FN113 H[1927] A.C. 487, 508.FN114 Ibid. 511.But, before he gave this statement of his reasons, he made a number ofobservations that might suggest that he was agreeing with the view expressed byCopr. © West 2004 No Claim to Orig. Govt. Works