Dennant v Skinner and Another

[1948] 2 All ER 29

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Between: Dennant
And: Skinner and Another

Court:

Judge: Hallett J

Subject References:
Auction
Passing of property
Unconditional sale
Representations made after fall of hammer
Subsequent undertaking that property should not pass until cheque honoured
Sale of Goods Act, 1893 (c 71), s 58(2)

Case References:
Lake v Simmons - [1927] AC 487; 35 Digest 97, 64
Smith v Wheatcroft - (1878), 9 ChD 223; 47 LJCh 745; 39 LT 103; 35 Digest 98, 71
Phillips v Brooks Ltd - [1919] 2 KB 243; 88 LJKB 953; 121 LT 249; 24 Com Cas 263; 39 Digest 533, 1451
Heap v Motorists Advisory Agency Ltd - [1923] 1 KB 577; 92 LJKB 553; 129 LT 146; 67 Sol Jo 300; 39 Digest 531, 1441
Folkes v King - [1923] 1 KB 282; 92 LJKB 125; 128 LT 405; 67 Sol Jo 227; 28 Com Cas 110; 86 JP Jo 552; Digest Supp
London Jewellers Ltd v Attenborough, London Jewellers Ltd v Robertsons (London) Ltd - [1934] 2 KB 206; 103 LJKB 429; 151 LT 124; 78 Sol Jo 413; 39 Com Cas 290; Digest Supp

Hearing date: 4 May 1948
Judgment date: 5 May 1948

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On 8 November 1946, the plaintiff at an auction knocked down a van to the highest bidder, and inquired his name. The bidder replied that his name was King, and that he was the son of the proprietor of King's Motors, of Oxford, a well known and reputable firm, which he was representing at the sales. The plaintiff knocked down five more vehicles to King including a Standard motor car. After the sales, King said he would like to pay by cheque, and the plaintiff replied that it was not his practice to accept cheques from people he did not know. King repeated his representations as to his connection with King's Motors, and produced the counterfoils in his cheque book according to which he had been paying large amounts to well known auctioneers. The plaintiff then accepted the cheque, King signing a form which stated:

"I hereby certify my cheque No.- will be met on presentation at my bank. Furthermore, I agree that the ownership of the vehicles will not pass to me until such time as the proceeds of my cheque have been credited to South London Motor Auction account at Lloyds Bank."

King was permitted to remove the vehicles, and he sold the Standard car to the third party, C, who sold it to the defendant, S. The cheque was dishonoured on presentation and it transpired that King had no connection with King's Motors. The plaintiff sought from S the return of the car or payment of its value.

Held (i) there being no mistake as to the identity of the contracting parties at the time when the contract of sale was made, which was at the fall of the plaintiff's hammer, the plaintiff's assent to the sale and to the passing of the property to King was not vitiated.

Phillips v Brooks Ltd ([1919] 2 KB 243; 121 LT 249), applied

Heap v Motorists Advisory Agency Ltd ([1923] 1 KB 577; 129 LT 146), distinguished.

(ii) the contract for sale was unconditional, and, therefore, the property in the car passed on the fall of the hammer under the Sale of Goods Act, 1893, s 18(1), and the plaintiff's right under s 39(1)(a) of that Act to retain the car until payment was made was relinquished when he gave possession to King.

(iii) the certificate signed by King could not have the effect of preventing the ownership of the car from passing to King because it had already passed, and it was ineffective to divest King of the ownership and re-vest it in the plaintiff.

Notes

As to mistake as to person, see Halsbury Hailsham Edn, Vol 7, pp 95, 96, para 134; and for cases, see Digest , Vol 35, pp 97-99, Nos 64-75.

Action

Action for the return of a motor car or for its value.

The plaintiff was a certificated auctioneer who had sold the car at an auction sale to a person fraudulently representing himself to be the Portsmouth representative of a well known and highly reputable firm in the motor vehicle trade at Oxford and the son of its proprietor. In reliance on these representations the plaintiff had accepted a cheque in payment, together with a written undertaking that the ownership of the car should not pass until the cheque was met, and had then given delivery of the car. He now sought to recover the car from the defendant, who had acquired it in good faith from a person whom he brought in as third party and who had also acquired it in good faith. The fraudulent purchaser had meanwhile been convicted of obtaining the property by false pretences, but the plaintiff's claim was based on the ground that the offence he had actually committed was larceny by a trick and that the property in the car had never passed to him. The plaintiff also contended that in the special circumstances the property had never passed, particularly having regard to the undertaking signed by the purchaser. Hallett J held that the offence had been obtaining property by false pretences, that the property in the car had passed on the fall of the hammer at the auction sale, and that, by delivering the car to the purchaser, the plaintiff had lost his right of lien and of re-sale on non-payment and so had no such property in or possession of the car as would entitle him to bring an action. The facts appear in the judgment.