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England and Wales Court of Appeal (Civil Division) Decisions


You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Oscar Chess Ltd v Williams [1956] EWCA Civ 5 (11 November 1956)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/1956/5.html
Cite as: [1956] EWCA Civ 5, [1957] 1 All ER 325, [1957] 1 WLR 370, [1957] WLR 370

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JISCBAILII_CASE_CONTRACT

BAILII Citation Number: [1956] EWCA Civ 5
Case No.:

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL.

Royal Courts of Justice
11th November 1956

B e f o r e :

LORD JUSTICE DENNING,
LORD JUSTICE HODSON
and

LORD JUSTICE MORRIS.

____________________

Between:
OSCAR CHESS LIMITED

v.

W. V. R. WILLIAMS (Male)

____________________

(Transcript of the Shorthand Notes of The Association of Official Shorthandwriters, Ltd.,
Room 392 Royal Courts of Justice, and 2 New Square, Lincoln's Inn, London W.0.2).

____________________

MR. BREUAN REECE, instructed by Messrs. Helder Roberts & Co., agents for Messrs. Ivor Evans & Benjamin (Swansea),
appeared
for the Appellant (Defendant).
MR. NORMAN FRANCIS, instructed by Messrs. A. King-Davies & Son (Maesteg),
appeared for the Respondent (Plaintiff).

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

    LORD JUSTICE DENNING: In March 1954, a Mrs. Williams of 13 Victoria Terrace, Port Talbot, acquired a second hand Morris car Index Number ECO 503. She acquired it on the footing that it was a 1948 model at a price of £300. The transaction was put through on hire-purchase from the British Wagon Co. The registration book showed that it was first registered on 13th April 1948 with five changes of ownership between 1948 and 1954.

    During the next fourteen months the car was used a good deal by her son Mr. W. V. R. Williams: and he often gave lifts to Mr. Ladd, a motor salesman, employed by Oscar Chess Ltd. known as the Motor Rouse, Port Talbot. Mr. Ladd lived at 18 Victoria Terrace, a few doors away from Mr. Williams. Mr. Ladd thought it looked like a 1948 model.

    In May 1945, Mr. Williams, the son, told Mr. Ladd that he wanted to get a new Hillman Minx for £650 and offered the Morris in part exchange. Mr. Williams described the Morris car as a 1948 ten horse power Morris and he produced the registration book for it. Mr. Ladd checked up in it the date 1948 as the date of first registration. He looked up Glass's Guide - a book which gives current prices for second-hand cars according to the year of manufacture - and said he would make an allowance of £290 for the Morris. This allowance of £290 was the factor which made the transaction possible. If he had not got this allowance, Mr. Williams would not have gone through with the transaction at all. Oscar Chess Ltd. were no doubt ready to give him this good allowance because they would get a substantial profit on the sale of the Hillman.

    The transaction went through accordingly. Oscar Chess Ltd., the Motor House, sold the new Hillman Minx for £650 to a finance company who let it on hire-purchase terms to Mr. Williams. Oscar Chess Ltd. took the Morris in part exchange but, to do so, they had first to pay the outstanding £50 to the British Wagon Co. They charged the sum to Mr. Williams. They then took the Morris allowing £290 for it which they credited to the Finance Company who bought the Hillman.

    Bight months later Oscar Chess Ltd. discovered that the Morris was not made in 1948 as they thought, but in 1939. They discovered this by taking the chassis number and engine number and sending those numbers to Morris Motors Ltd., who looked up their card index and found that the car left the factory on 3rd. February 1939. Strange to relate, the style and finish of Morris cars had not been changed between 1939 and 1948. Outwardly a 1948 model looked the same as a 1939 model: but the price was of course very different. If Oscar Chess Ltd. had known it was a 1939 model they would not have given £290 for it, but only £175. In describing it as a 1948 Morris, Mr. Williams of course was perfectly innocent. He honestly believed it was a 1948 model: and so no doubt did the previous sellers. Someone for back in 1948 must have fraudulently altered the log-book, but he cannot be traced now.

    In these circumstances Oscar Chess Ltd., the Motor House, claim as damages from Mr. Williams the sum of £115, the difference in value between a 1939 Morris and a 1948 Morris. The question depends on whether Mr. Williams gave a binding promise to Mr. Ladd that it was made in 1943. The evidence on this point was very short. Mr. Ladd said in examination in chief,

    "He offered me a 1948 ten horse power Morris in part exchange. He produced the registration book".

    Mr. Ladd said in cross-examination

    "I had often had lifts in the defendant's car. I thought it looked like a 1948 model. I checked up in the registration book".

    Mr. Ladd's evidence was accepted. Indeed Mr. Williams did not go into the witness box to contradict it. Upon those simple facts Mr. Francis, counsel for the plaintiffs, submitted to the Judge that the defendant's representation that the car was a 1948 model was an essential term of the contract, that is a condition. Alternatively he submitted that the representation was a warranty, intended as such. The Judge found that it was a condition. He said that the allowance of £290 was made by Mr. Ladd "on the assumption that the Morris was a 1948 model, that the assumption was fundamental to the contract, a condition which, if not satisfied, would have caused him to rescind the contract if he had known it to be unsatisfied before the property in the Morris car passed to his principals".

    Thereupon the Judge awarded £115 to the plaintiff and did not go on to consider the alternative claim on a warranty.

    Now I entirely agree with the Judge that both parties assumed that the Morris was a 1948 model and that this assumption was fundamental to the contract. But this does not prove that the representation was a term of the contract. The assumption was based by both of them on the date given in the registration book as the date of first registration. They both believed it was a 1948 model whereas it was only a 1939 one. They were both mistaken and their mistake was of fundamental importance.

    The effect of such a mistake is this: It does not make the contract a nullity from the beginning, but it does in some circumstances enable the contract to be set aside in equity. If the buyer had come promptly, he might have succeeded in getting the whole transaction set aside in equity on the ground of this mistake, (see Solle v. Butcher. 1950 1 King's Bench, page 671), but he did not do so and it is now too late for him to do it (see Leaf v. International Galleries. L950 2 King's Bench page 86). His only remedy is in damages, and to recover these he must prove a warranty.

    In saying that he must prove a warranty, I use the word "warranty" in its ordinary English meaning to denote a binding promise. Everyone knows what a man means when he says "I guarantee it" or "I warrant it" or "I give you my word on it". He means that he binds himself to it. That is the meaning it has borne in English law for 300 years from the leading case of Chandelor v. Lopus (1603), Croke's Reports, James I, Volume 3, page 4, onwards. During the last fifty years, however, some lawyers have come to use the word "warranty" in another sense. They use it to denote a subsidiary term in a contract as distinct from a vital term which they call a "condition". In so doing they depart from the ordinary meaning, not only of the word "warranty", but also of the word "condition". There is no harm in their doing this, so long as they confine this technical use to its proper sphere, namely to distinguish between a vital term, the breach of which gives the right to treat the contract as at an end, and a subsidiary term which does not. But the trouble comes when one person uses the word "warranty" in its ordinary meaning and another uses it in its technical meaning. When Lord Holt made his famous ruling that "an affirmation at the time of a sale is a warranty, provided it appears en evidence to be so intended", he used the word "waranty" in its ordinary English meaning of a binding promise: and when Lord Haldane and Lord Moulton in 1913 in Heilbut Svmons & Co. v. Buckleton. (1913 Appeal Cases, page 30) adopted his ruling, they used it likewise in its ordinary meaning. These different uses of the word seem to have been the source of confusion in the present case. The Judge did not ask himself, "Was the representation (that it was a 1948 Morris) intended to be a warranty?" He asked himself, "Was it fundamental to the contract?" He answered it by saying that it was fundamental; and therefore it wss a condition and not a warranty. By concentrating on whether it was fundamental, he seems to me to have missed the crucial point in the case which is whether it was a term of the contract at all. The crucial question is: was it a binding promise or only an innocent misrepresentation? The technical distinction between a "condition" and a "warranty" is quite immaterial in the case, because it is far too late for the buyer to reject the car. He can at best only claim damages. The material distinction here is between a statement which is a term of the contract and a statement which is only an innocent misrepresentation. This distinction is beet expressed by the ruling of Lord Holt, "Was it intended as a warranty or not?", using the word warranty there in its ordinary English meaning: because it gives the exact shade of meaning that is required. It is something to which a man must be taken to bind himself.

    In applying Lord Holt's test, however, some misunderstanding has arisen by the use of the word "intended". It is sums times supposed that the tribunal must look into the minds of tae parties to see what they themselves intended. That is a mistake.

    Lord Moulton made it quite clear that "The intention of the parties can only be deduced from the totality of the evidence". The question whether a warranty was intended depends on the conduct of the parties, on their words and behaviour, rather than on their thoughts. If an intelligent bystander would reasonably infer that a warranty was intended, that will suffice. And this, when the facts are not in dispute, is a question of law. That is shown by Heilbut v. Buckleton itself, where the House of Lords upset the finding by a jury of a warranty.

    It is instructive to take some recent instances to show how the Courts have approached this question. When the seller states a fact which is or should be within his own knowledge and of which the buyer is ignorant, intending that the buyer should act on it and he does so, it is easy to infer a warranty. See Couchman v. Hill (1947 King's Bench, page 554) where the farmer stated that the heifer was unserved and Harling v. Eddy (1951, Volume 2, King's Bench, page 739) where he stated that there was nothing wrong with her. So also if he makes a promise about something which is or should be within his own control. See Birch v. Paramount Estates Ltd. decided on 2nd. October 1956 in this Court, where the seller stated that the house would be as good as the show house. But if the seller, when he states a fact, makes it clear that he has no knowledge of his own but has got his information elsewhere, and is merely passing it on, it is not so easy to imply a warranty. Such a case was Routledge v. McKay (1954, Volume 1, Weekly Law Reports at page 636) where the seller "stated that it was a 1942 model and pointed to the corroboration found in the boon", and it was held that there was no warranty.

    Turning now to the present case, much depends on the precise words that were used. If the seller says "I believe it is a 1948 Morris. Here is the registration book to prove it," there is clearly no warranty. It is a statement of belief, not a contractual promise. But if the seller says "I guarantee that it is a 1948 Morris. This is borne out by the registration book, but you need not rely solely on that. I give you my own guarantee that it is," there is clearly a warranty. The seller is making himself contractually responsible, even though the registration book is wrong.

    In this case much reliance was placed by the Judge on the fact that the buyer looked up Glass's Guide and paid £290 on the footing that it was a 1948 model: but that fact seems to me to be neutral. Both sides believed the car to have been made in 1948 and in that belief the buyer paid £290. That belief can be just as firmly based on the buyer's own inspection of the log book as on a contractual warranty by the seller.

    Once that fact is put on one side, I ask myself: What is the proper inference from the known facts? It must have been obvious to both that the seller had himself no personal knowledge of the year when the car was made. He only became owner after a great number of changes. He must have been relying on the registration book. It is unlikely that such a person would warrant the year of manufacture. The most he would do would be to state his belief, and then produce the registration book in verification of it. In these circumstances the intelligent bystander would, I suggest, say that the seller did not intend to bind himself so as to warrant that it was a 1948 model. If the seller was asked to pledge himself to it, he would at once have said "I cannot do that. I have only the log-book to go by, the same as you".

    The Judge seems to have thought that there was a difference between written contracts and oral contracts. He thought that the reason why the buyer failed in Heilbut Symons and Routledge v. McKay was because the sales were afterwards recorded in writing, and the written contracts contained no reference to the representation. I agree that was an important factor in those cases. If an oral representation is afterwards recorded in writing, it is good evidence that it was intended as a warranty.

    If it is not put into writing, it is evidence against a warranty being intended. But it is by no means decisive. There have been many cases where the Courts have found an oral warranty collateral to a written contract such as Birch v. Paramount Estates. But when the purchase is not recorded in writing at all, it must not be supposed that every representation made in the course of the dealing is to be treated as a warranty. The question then is still: Was it intended as a warranty? In the leading case of Chandelor v. Lopus in 1603 a man by word of mouth sold a precious stone for gold affirming it to be a bezoar stone whereas it was not. The declaration averred that the seller affirmed it to be a bezoar stone, but did not aver that he warranted it to be so. The declaration was held to be ill because "the bare affirmation that it was a bezoar stone, without warranting it to be so, is no cause of action." That has been the law from that day to this and it was emphatically re-affirmed by the House of Lords in Heilbut Symons v. Buckleton (1913 Appeal Cases at pages 36 and 50).

    One final word: It seems to me clear that the motor dealers who bought the car relied on the year stated in the log-book. If they had wished to make sure of it, they could have checked it then and there, by taking the engine number and chassis number and writing to the makers. They did not do so at the time, but only eight months later. They are experts, and not having made that check at the time I do not think they should now be allowed to recover against the innocent seller who produced to them all the evidence he had, namely the registration book. I agree that it is hard on the dealers to have paid more than the car is worth: but it would be equally hard on the seller to make him pay the difference. He would never have bought the Hillman at all unless he had got the allowance of £290 for the Morris. The best course in all these cases would be to "shunt" the difference down the train of innocent sellers until you reached the rogue who perpetrated the fraud: but he can rarely be traced, or if he can, he rarely has the money to pay the damages. So you are left to decide between a number of innocent people who is to bear the loss. That can only be done by applying the law about representations and warranties as we know it; and that is what I have tried to do. If the rogue can be traced, he can be sued by whomsoever has suffered the loss: but if he cannot be traced, the loss must lie where it falls. It should not be inflicted on innocent sellers, who sold the car many months, perhaps many years before, and have forgotten all about it and have conducted their affairs on the basis that the transaction was concluded. Such a seller would not be able to recollect after all this length of time the exact words he used, such as, whether he said" I believe it is a 1948 model" , or "I warrant it is a 1948 model". The right course is to let the buyer set aside the transaction if he finds out the mistake quickly and comes promptly before other interests have irretrievably intervened, otherwise the loss must lie where it falls: and that is, I think, the course prescribed by law.

    I would allow this appeal accordingly.

    LORD JUSTICE HODSON: The question is whether the statement made by the defendant that his 10 horse power Morris Car was a 1948 car was a term of the contract by which he handed over the car in part exchange for a new Hillman car or was merely an innocent misrepresentation.

    The question is usually stated as being whether words are to be interpreted as giving rise to a warranty. The House of Lords in Heilbut Symons & Co. v. Buckleton. 1913 Appeal Cases page 30, adopted the enunciation of the true principle of law as laid down by Chief Justice Holt in l689:

    "An affirmation at the time of the sale is a warranty provided it appears on evidence to be so intended".

    Where as here the words of the affirmation are established the question of intention remains to be determined.

    Lord Haldane at page 36 in the case above cited expressed the opinion that, where neither the circumstances of the conversation nor its words were in dispute, the, question of warranty or representation was purely one of law.

    Lord Moulton in his observations at page 50 and 51 thought that the question of intention was one for a jury and said that the intention of the parties can only be deduced from the totality of the evidence.

    Treating the question of intention as one of fact proper for the determination of the learned County Court Judge one is driven to enquire whether there was here any evidence that the statement in question went beyond an innocent misrepresentation, bearing in mind the warning contained in Lord Moulton's speech ( at page 49) against "attempts to extend the doctrine of warranty beyond its just limits and find a warranty created in cases where there was nothing more than innocent representation

    I am of opinion that there was no evidence to support the conclusion that the statement that the Morris car was a 1948 car was a term of the contract. The registration book, showing that the car was first registered in 1948, was produced by the defendant to the plaintiff's representative, a motor salesman, who was familiar with the oar having often had lifts in it, thought it looked line a 1948 car and checked up on the registration book.

    The defendant was stating an opinion upon a matter of which he had no special knowledge or on which the buyer might be expected also to have an opinion and to exercise his judgment.

    This is not a decisive test as was pointed out by Lord Moulton (in Heilbut's case at page 50), but it is a feature which he said may be a criterion of value in guiding a jury in coming to a decision whether or not a warranty was intended.

    There is in my opinion nothing in this case to set against the criterion to which I have referred. That is to say, there is nothing to indicate that the statement as to the date of the car amounted to a promise or guarantee that the information given was accurate.

    The question is similar to that which came before this Court in Routledge v. McKay. 1954 volume 1, Weekly Law Reports, page 615. There a Douglas motor cycle combination of more ancient date was sold on a representation that it was a 1942 combination. The information rag, as here, derived from the registration, book. The members of the Court unanimously agreed that applying the law as laid down by Heilbut Symons & Co v. Buckleton there was no evidence that the statement amounted to a warranty. The learned County Court Judge distinguished Routledge v. McKay from the present case because there was there a written memorandum of the contract, before which words were used by one party inducing the opposite party to enter into the written contract. He also distinguished Heilbut Symons & Co v. Buckleton on the same ground. So far as the latter case is concerned, on a reading of the facts it seems to me that the contract in that case was concluded at the time when the representation was made, although since the transfer of shares was involved, formal brokers' contracts were afterwards drawn up.

    So far as Routledge v. McKay is concerned I have read the judgments in the case with some care and I cannot find that the Court based its conclusion on the distinction between words used on an occasion before the final conclusion of the contract and words used or, the same occasion or incorporated in the same document, although the point as argued that having regard to the language of the written memorandum any earlier warranty was excluded.

    In any event I find such a distinction a fine one and one which I should be reluctant to draw unless compelled to do so.

    In all essential matters I am of opinion that this case is on all fours with Routledge v. McKay and following the authority of the House of Lords in Heilbut Symons & Co. v. Buckleton. I reach a similar conclusion in this case. I would allow the appeal.

    LORD JUSTICE MORRIS: In June 1955 the Defendant acquired a new Hillman car belonging to the Plaintiffs who took a Morris 10 Saloon in part exchange. The form that the transaction took in reference to the Hillman car was that it was sold by the Plaintiffs to a Hire-purchase company, from whom the Defendant then hired it. The Morris car was in fact being hired by the Defendant from a Hire-purchase company, but could become the property of the Defendant upon payment of £50. The Defendant said to the Plaintiffs that the Morris car was a 1948 model. Upon the basis that it was, the allowance in respect of it was computed by reference to a well known guide recording basic prices of second-hand cars in normal condition for their age. The appropriate figure for the particular 1948 model was shown in the guide as £295. The allowance made to the Defendant was £290. The Plaintiffs paid £50 to the Hire-purchase company from whom the Defendant was hiring the Morris car and credited the Defendant with the balance of £240. The result of this was that the Defendant sold the Morris car to the Plaintiffs for £290.

    In fact the Morris car was not a 1948 model but was a 1939 model, and if the Plaintiffs had known this they would not have paid more than £175 for it. When in January 1956 they discovered that the Morris car was a 1939 model they not unnaturally claimed £115 from the Defendant. Without any fault on their part they had in effect paid the Defendant £115 too much. In these circumstances it might have been expected that the Defendant would voluntarily have reimbursed the Plaintiffs, unless there were some difficulties that prevented him. But he did not recoup the Plaintiffs and they brought an action. Their case was that it was an express term of the contract that the Morris car was a 1948 model. They said that the term was a condition or in the alternative a warranty and that in the events that had happened they were entitled to claim damages for breach of warranty.

    The statement that the Defendant made was that the Morris car was a 1948 model. This was a definite and unqualified statement. It was of this nature because the Defendant did not doubt it. It was not a mere expression of tentative or qualified belief. At the hearing it was proved that it was a 1939 model. The Defendant did not give evidence. The Plaintiffs did not in any way suggest that the Defendant had not honestly believed what he had said and the Plaintiffs very fairly admitted that the Defendant would not have embarked upon the new transaction had he not been able to get £290 for his Morris car.

    The Defendant handed over the registration book of the Morris car which stated that it was first registered in 1948. In the absence of evidence it must remain a matter of speculation as to why the registration book referable to a 1939 car should record that the first registration was in 1948. It is possible that a 1939 car was first registered in 1948, but this seems very unlikely. In correspondence it was stated on behalf of the Defendant that the car had been bought by the Defendant's mother in March 1954. She paid £300 for it - being £10 more than the amount allowed to her son for it fourteen months later. Her name is recorded in the book. It is I think only reasonable for a purchaser of a car who received a registration book which showed a first registration in 1948 to have believed that the car was a 1948 car.

    There was evidence which the learned judge accepted that the "styling" of a 10 horse power Morris car had not changed between 1939 and 1948 "so that mere inspection of the car even by a man with knowledge of motor oars would not have indicated that the car in question was of earlier manufacture than 1948".

    The case can be approached and has at all times been approached on the basis that all concerned honestly believed that the car was a 1948 car. The Plaintiffs' representative had often had lifts in the Defendant's car and thought that it looked like a 1948 model. It cannot be denied therefore that he fully accepted and acted upon the statement made to him that the car was a 1948 model. Furthermore he was handed the registration book and from that he checked that the car was a 1948 model. In strictness the book only showed that the date of first registration was in 1948, but any dealer in cars would I think regard that as confirmation of what he had been told. There was nothing at all to put him on notice that the car was a 1939 model and indeed it is not suggested that there was. He believed that the car was a 1948 model and it was because he so believed that he agreed the allowance in the sum of £290. Had he not so believed he would never have allowed £290. Everything therefore points to the importance of the statement that the car was a 1948 model: the statement was amply corroborated when the registration book: was handed over for the Plaintiffs' representative to see. The learned Judge held that the defendant knew that the plaintiffs' representative proceeded to calculate what allowance he would make for the car on the basis that it was a 1948 car.

    The only point taken on behalf of the defendant was that the statement that was made did not form a part of the contract. The learned Judge rejected this. He held that it was not only a term but an essential term. In my judgment he was correct. The statement that the car was a 1948 car was not a mere representation in respect of the subject matter of the contract: the statement was adopted as the foundation of the contract that they made. The promise to pay £290 for that particular car (a figure arrived at by reference to the value of 1948 cars) was the counterpart of a term of the contract that that particular car was a 1948 model.

    The learned Judge held that if the plaintiffs had discovered after the making of the contract but before property in the car had passed that it was a 1939 car they could have refused to go on with the transaction: that they could have refused for the reason that it was a condition of the contract that the car was a 1948 model. The learned Judge has expressed himself as follows:

    "Although it appeared that the plaintiff's agent had often had a lift in the defendant's car (more strictly, the car let on hire purchase terms to the defendant's mother) the actual transaction, on the evidence, appeared to me to be a sale by description of the car, described as a 1948 10 horse power Morris car, as part of the larger and somewhat more complex transaction of letting a new Hillman Minx to the defendant on hire purchase terms, making him an allowance of £290 the value to the plaintiffs of the said 10 horse power Morris car, on the assumption that it was a 1948 model.
    "Mr. Ladd satisfied me that this assumption was fundamental to the contract, a condition which, if not satisfied, would have caused him to rescind the contract if he had known it to be unsatisfied before the property in the Morris car passed to his principals. The defendant did not elect to give evidence, but Mr. Ladd told me that, for the purpose of calculating the allowance he would give the defendant, he used Glass's Guide, a well-known reference book published monthly in the motor trade, giving the average second-hand price paid by dealers for cars according to the year of manufacture. I have no doubt the defendant knew that Mr. Ladd was calculating the allowance he would make for the car on the basis that it was a 1948 car, and it was never suggested in cross-examination that he did not. There was no suggestion that defendant's statement that the car was a 1948 model was made otherwise than in good faith, but so far as Mr. Ladd was concerned, that statement was fundamental, according to his evidence, and apart from Mr. Benjamin's cross-examination to elicit that the defendant had given Mr. Ladd lifts in the car, it was not suggested that Mr. Ladd did otherwise than rely on the defendant's statement as to the year of manufacture, corroborated by the evidence of the registration book, and the documents of the previous hire-purchase transaction relating to the same vehicle".

    The plaintiffs do not allege that there was any collateral oral warranty. They submit that the statement of the defendant was not something detached from the contract, but was a part of the contract and was in legal terminology a condition. In my judgment it was a stipulation of the contract which was a condition. But by the time that the plaintiffs ascertained that the car was a 1939 car it was too late for them to take any other course than to treat the breach of condition as a breach of warranty. (See Sale of Goods Act 1893 Section 11)

    On this basis the learned Judge held that the plaintiffs were relegated to a right to claim damages, which he assessed at £115, being the difference between the value the car would have had if it had been a 1948 car and its actual true value which he found was. £175.

    In deciding the case the learned Judge applied his mind to the tests laid down in Heilbut Symonds v. Buckleton (1913 Appeal Cases, page 30). In his speech in that case Lord Moulton spoke of the importance of maintaining in its full integrity the principle that a person is not liable in damages for an innocent misrepresentation and made it clear that it would be wrong to say that merely because a representation is made in the course of a dealing and before completion of a bargain the representation amounts to a warranty. He approved the statement of Chief Justice Holt that an affirmation at the time of a sale is a warranty provided that it appears on the evidence to have been so intended. The intention of the parties is to be deduced from the totality of the evidence.

    In coming to his conclusion that what the defendant said about the car being a 1948 model was in tins case a, part of the contract the learned Judge distinguished the case of Routledge v. McKay (1954 volume 1, Weekly Law Reports, page 615), which was one in which the principles laid down in Heilbut v. Buckleton were applied to the facts of that case. There was a sale of a motor cycle by the fifth party to the fourth party and a later claim for damages for breach of a warranty that the cycle was a 1942 model. There was a first meeting between the parties. In answer to a question the fifth party said that the cycle was a 1942 model and pointed to the corroboration of that statement found in the registration book. There was a second meeting when the two parties signed a written contract. That contract made no mention of the cycle being a 1942 model. It was in fact a 1930 model. As to the written contract it was held (see pages 621-2) that prima facie it recorded what the parties intended to agree when the actual transaction of sale took place and as a matter of construction that it would be extremely difficult to say that such an agreement was consistent with a warranty being given at the same time and so as to be intended to form a part of the bargain then made. There was no statement as to the age of the cycle made at the time of the written contract. It was therefore held that there was no warranty given as part of the actual bargain. It was then considered whether the statement previously made during the first meeting was a representation or was a warranty, and it was held that the statement then made (at a time when there was no agreement between the parties) was not contractual and that nothing more was intended than a mere representation.

    Lord Evershed, Master of the Rolls, in his judgment at page 621 said this:

    "This document "

    - that was a reference to the written agreement

    "represents prima facie the record of what the parties intended to agree when the actual transaction took place. Mr. Watson has contended that the terms of it necessarily exclude any warranty - that is to say, any collateral bargain, either contemporary or earlier in date. I am not sure that I would go as far with Mr. Watson in that respect. But I think that, as a matter of construction, it would be extremely difficult to say that such an agreement was consistent with a warranty being given at the same time and so as to be intended to form a part of the bargain then made. I think, with Mr. Watson, that the last words 'It is understood that when the £30 is 'paid........this transaction is closed' would make such a contention exceedingly difficult. But I will assume that the warranty here was not a warranty given when this bargain was struck, but was a warranty which had been given on the earlier date, on which date alone, according to the evidence, any representation about the date of the Douglas was made at all.
    "Now if the earlier representation is to be a warranty, then it has got to be contractual in form. In other words, so far as I can see, once the existence of a warranty as part of the actual bargain is excluded, it must be a separate contract; and the difficulty, and I think the overwhelming difficulty, which faces the fourth party here is that when the representation was made there was then no bargain, and it is therefore, in my view, impossible to say that it could have been collateral to some other contract. But even apart from that, it seem s to me that, on the evidence, there is nothing to support the conclusion, as a matter of law and bearing in mind Lord Moulton's observations, that in answering the question posed about the date of this Douglas there was anything more intended than a mere representation".

    The learned Judge in the present case considered that case and correctly distinguished it from the present one. In the present case there was not (as in Routledge's case) an antecedent statement and then a later written contract which omitted any incorporation of or reference to the statement. Routledge's case is distinguishable on three grounds. In the present case there was a statement made at the time 'of the transaction: there was no written contract: and in so far as there was a document brought into existence, the document consisted of an invoice addressed to the defendant which recorded the complete transaction and which expressly described the car for which an allowance of £290 was being made as a "1948 Morris 10 Saloon". The statement made which described the Morris car was therefore an integral part of the contract. It was I consider a condition of the contract, upon which the plaintiffs contracted (compare Bannerman v. White, 10 Common Bench New Series, page 844). In Couchman v. Hill,1947 volume 1, King's Bench, page 554, a statement was made that a heifer was "unserved". There was in that case a discussion as to whether the description "unserved" constituted a warranty or a condition. In his judgment (with which the other members of the Court concurred) Lord Justice Scott said:

    "as a matter of law I think every item in a description which constitutes a substantial ingredient in the 'identity' of the thing sold is a condition, although every such condition can be waived by the purchaser, who thereupon becomes entitled to treat it as a warranty and recover damages. I think there was here an unqualified oral condition, the breach of which the Plaintiff was entitled to treat as a breach of warranty and recover the damages claimed."

    In the present case upon a consideration of the evidence that he heard the learned Judge came to the conclusion that the statement which he held to have been made by the Defendant at the time of the making of the contract was a statement made contractually. It seems to me that the totality of the evidence points to that view. The statement related to a vitally important matter: it described the subject matter of the contract then being made and the statement directed the parties to, and was the basis of, their agreement as to the price to be paid or credited to the defendant. In the language of Lord Justice Scott it seems to me that the statement made by the defendant was "an item in the description" of what was being sold and that it constituted a substantial ingredient in the identity of the thing sold.

    It is with diffidence that I arrive at a conclusion differing from that of my Lords, but I cannot see that the learned Judge in any way misdirected himself or misapplied any principle of law, and I see no reason for disturbing his conclusion.

    (Appeal allowed with costs in Court of Appeal and in Court below; leave to appeal to House of Lords refused).


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