370

T H E W E E K L Y LAW E E P O E T S
1957
LEVY

LEVY.

FEB. 22, 1957

Counsel for the husband submitted that, in the circumstances

of the case, service upon the husband should be treated as good
service notwithstanding the fact that he was an infant. The
husband gave oral evidence upon oath that he had been served
personally with the relevant documents and that his father had
applied for and obtained a civil aid certificate on his behalf. The
civil aid certificate granted legal aid to the husband as respondent in connexion with proceedings " to defend (through his
" father and next friend David Levy) an appeal to the Divisional
"Court . . . "
Jack Sarch for the wife.
A. F. Waley for the husband.
COLLINGWOOD J., in the course of his judgment, referred
to Gore-Booth v. Gore-Boothx and Stanga v. Stanga2 and
emphasized that the mandatory nature of rule 64 of the Matrimonial Causes Eules, 1950, was equally applicable to appeals to
the Divisional Court.
The particular circumstances of the present case were, however, such as to justify the court in acquiescing in the request
of counsel for the husband that the service, in fact effected, upon
the infant husband should be deemed to be good service.
LORD MEBRIMAN

P. concurred.

Solicitors: W. G. R. Saunders; Messrs. Sampson & Co.

E. J.
" shall, unless otherwise directed, be
" served on the father or guardian of
" the infant or, if he has no father
" or guardian, upon the person with
" whom he resides or under whose care
" h e is, and service so effected shall
" be deemed good service on the
" infant, so however that a registrar

" may order that service effected or to

" be effected on the infant shall be
" deemed good service."
i [1954] P . 1; [1953] 3 W . L . E .
602; [1953] 2 All E . B . 1000.
2 [1954] P. 10; [1953] 3 W . L . E .
609; [1954] 2 All E.E. 16.

[COURT OF APPEAL.]
C. A.

*OSCAK CHESS LTD. v. WILLIAMS.

1956
Oct. 22;
Nov. 13.

[ P l a i n t No. M. 6399.]

Denning,
Hodson and
Morris L.JJ.

Sale of GoodsWarrantyCollateral
warrantyInnocent
misrepresentationMotor-carCar
described as " 1 9 4 8 model"
taken in part
exchange for new car Current price for 1948 model allowed
Hegistration
book showing 1948 as date of first
registrationCar
later found to be 1939 modelFundamental
mistake by both parties.
I n 1955 the defendant entered into a hire-purchase transaction
through the 'plaintiff car dealers to acquire a new car, t h e car
dealers agreeing throug h their salesman to take in p a r t exchange a

[1957] 1 W.L.E.

371

second-hand 10-horse-power Morris car acquired by the defendant's

C. A.
mother for 300 in 1954. The registration book of the Morris car
1956
showed it as having been first registered in 1948, with five changes
of ownership between 1948 and 1954. The salesman, who was perOSCAR
sonally familiar with the particular Morris car, after ascertaining CHESS LTD.
v.
from a trade reference book the current price for a 1948 Morris of
that model, allowed 290 for i t ; and the hire-purchase transaction WILLIAMS.
was concluded on that basis. An invoice addressed to the defendant
and recording the completed transaction described the car as a
" 1948 Morris 10 saloon." Eight months later the car dealers found
out from the manufacturers that the Morris was a 1939 model; the
outward appearance of that model had not been altered between 1939
and 1948. The cxirrent price for a second-hand 1939 model would
have been 175.
The car dealers thereupon brought an action to recover from the
defendant as damages 115, the difference in value between a 1939
and a 1948 Morris, claiming that it was an express condition of the
contract, or alternatively a warranty, that the Morris car was a
1948 model. At the hearing the salesman stated that, at the time
of the transaction, the defendant had offered a 1948 10-horse-power
Morris in part exchange and had produced the registration book.
The defendant did not give evidence. The county court judge held
that the assumption that the car was a 1948 model was a fundamental condition of the contract, breach of which, in view of the
lapse of time, entitled the car dealers to damages. On appeal by
the defendant:
Held (Morris L.J. dissenting), that there was no evidence to
support the conclusion that the affirmation (that the car was a 1948
model) made by the defendant at the time of the transaction was
intended to be a term of the contract; it was a mere innocent misrepresentation. As both parties had contracted on the basis of
a fundamental mistake, the car dealers could have rescinded the
contract if they had discovered the mistake earlier, but they could
not now rely on an innocent misrepresentation as a warranty on
which to found a claim for damages.
Heilbut, Symons & Co. v. Buckleton [1913] A.C. 30 and Boutledge v. McKay [1954] 1 W.L.R. 615; [1954] 1 All E.R. 855
applied.
Per Denning L.J. I t is important not to confuse the ordinary
meaning of " w a r r a n t y " as meaning a binding promise with the
technical meaning which it has acquired of being a subsidiary term
of a contract.
Per Morris L.J. The definite and unqualified statement by
the defendant that the Morris was a 1948 model, corroborated by
the registration book, related to a vitally important matter; it
described the subject-matter of the contract being made, and was
adopted by the parties as the foundation of the contract made and
was the basis of their agreement as to the price to be credited to
the defendant. I t was, and was intended to be, a condition of the
contract. Zoutledge v. McKay (supra) is distinguishable.
APPEAL from Judge Bowe Harding sitting at Neath and Port
Talbot County Court.
I n March, 1954, the mother of the defendant Williams
acquired a second-hand Morris car, on the footing t h a t it was a
1948 model, a t a price of 300. The transaction was p u t through
on hire-purchase from a hire-purchase company. The registration
book showed t h a t it was first registered on April 13, 1948, with
five changes of ownership between 1948 and 1954.

372

THE WEEKLY LAW EEPOBTS

C. A.
iggg

CHESS LTD.

'

FEB. 22, 1957

During the next fourteen months the car was used a good
deal by her son, the defendant, and he often gave lifts to one
Ladd, a motor salesman, employed by the plaintiffs, Oscar Chess
Ltd., known as the Motor House, Port Talbot, as Ladd lived
only a few doors away from the defendant.
In May, 1955, the defendant told Ladd that he wanted to get
a new Hillman Minx for 650 and offered the Morris in part
exchange. The defendant described the Morris car as a 1948
10-horse-power Morris, and he produced the registration book for
it. Ladd checked up in it the date 1948 as the date of first
registration. He looked up Glass's Guidea book which gives
current prices for second-hand cars according to the year of
manufactureand said that he would make an allowance of 290
for the Morris.
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 Williams.
Oscar Chess Ltd. took the Morris in part exchange, but, to do so,
they had first to pay the outstanding 50 to the hire-purchase
company. They charged that sum to the defendant. They then
took the Morris, allowing 290 for it, which they credited to the
finance company which bought the Hillman. An invoice addressed
to the defendant recording the complete transaction described the
car for which the allowance of 290 had been made as a " 1948
" Morris 10 saloon."
Eight months later Oscar Chess Ltd. discovered that the
Morris was not made in 1948, as they had 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 February 3, 1939, the style and finish of Morris cars not
having been changed between 1939 and 1948, with the result
that outwardly a 1948 model looked the same as a 1939 model,
though the price was very different. If Oscar Chess Ltd. had
known that it was a 1939 model the price they would have given
for it would have been only 175 instead of 290.
In those circumstances they brought an action to recover from
the defendant as damages the sum of 115, the difference in
value between a 1939 Morris and a 1948 Morris. They claimed
that it was an express term of the contract that the Morris car
was a 1948 model, and that the term was a condition or in the
alternative a warranty, and that in the events which had
happened they were entitled to damages for breach of warranty.
The evidence before the county court judge at the hearing on
July 17, 1956, as to what had been said on this point was as
follows: Ladd, the motor salesman, said in examination in chief:
" He " [the defendant] " offered me a 1948 ten-horse-power
" Morris in part exchange. He produced the registration book."
Ladd said in cross-examination: " I had often had lifts in the
" defendant's car. I thought it looked like a 1948 model. I

[1957] 1 W . L . E .

373

" checked up in the registration book." Ladd's evidence was

accepted. The defendant did not go into the witness-box to
contradict it. On those facts it was submitted for the plaintiffs
that the defendant's representation that the car was a 1948 model
was an essential term of the contract, namely, a condition.
Alternatively, it was 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 Ladd
" on the assumption that the Morris was a 1948 model, 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 "; and he awarded
115 to the plaintiffs and did not consider the alternative claim
on warranty.
The defendant appealed.
Breuan Beece for the defendant.
Norman Francis for the plaintiffs.

The following cases were referred to in the course of the

argument: Routledge v. McKay1; Heilbut, Symons & Co. v.
Buckleton 2 ; De Lassalle v. Guildford 3 ; Couchman v. Hill.4,
Cur. adv. vult.
Nov. 13. The following judgments were read.
DENNING L.J. stated the facts set out above, and said that in
describing the car as a 1948 Morris the defendant was perfectly
innocent; he honestly believed it was a 1948 model; and so no
doubt did the previous sellers. Someone in 1948 must have
fraudulently altered the log-book, but he could not now be traced.
His Lordship continued: 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: I t 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
i [1954] 1 W . L . E . 615; [1954] 1
All E . E . 855.
2 [1913] A.C. 30.

3 [1901] 2 K:B. 215; 17 T.L.E.

384.
* [1947] K.B. 554; 63 T.L.E. 8 1 ;
[1947] 1 All B.E.. 103.

C. A:
1956
OSCAR
CHESS L T D .

r>.

WILLIAMS.

374

THE WEEKLY LAW BEPOETS

FED. 22, 1957

m i s t a k e : see Sollo v. Butcher1;

but he did not do so and it is
now too late for him to do i t : see Leaf v.
International
1956
Galleries.2
His only remedy is in damages, and to recover these
OSOAR
CHESS LTD. he m u s t prove a warranty.
o.
I n saying t h a t he m u s t prove a warranty, I use the word
WILLIAMS.
" warranty " in its ordinary English meaning to denote a binding
Denning L.J. promise. Everyone knows what a m a n means when he says
'' I guarantee it " or " I warrant it " or " I give you m y word
" o n i t . " H e means t h a t he binds himself to it. Tha t is the
meaning it has borne in English law for 300 years from the
leading case of Ohandelor v. Lopus 3 onwards. During the last
50 years, however, some lawyers have come to use the word
" warranty " in another sense. They use it to denote a subsidiary t e r m in a contract as distinct from a vital term which
they call a '' condition." I n so doing they depart from the
ordinary meaning, not only of the word " warranty " but also of
the word " condition." There is no h a r m 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 a t an end, and a subsidiary
t e r m which does not. B u t the trouble comes when one person
uses the word " warranty " in its ordinary meaning and another
uses it in its technical meaning. W h e n H o l t C.J., in Crosse v .
Gardner* and Medina v. Stoughton,5
made his famous ruling
t h a t an affirmation at the time of a sale is a warranty, provided
it appears on evidence to be so intended, he used the word
" warranty " in its ordinary English meaning of a binding
promise: and when Lord H a l d a n e L.C. and Lord Moulton in
1913 in Heilbut, Symons & Co. v. Buchlcton,* 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, " W a s the
" representation (that it was a 1948 Morris) intended to be a
" warranty? " H e asked himself, " W a s it fundamental to the
" contract? " H e answered it by saying t h a t it was fundam e n t a l ; and therefore it was 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 i s : was
it a binding promise or only an innocent misrepresentation? The
technical distinction between a " condition " and a " warranty "
is quite immaterial in this case, because it is far too late for the
buyer to reject the car. H e can at best only claim damages. The
material distinction here is between a s t a t e m e n t which is a term
of the contract and a statemen t which is only an innocent
misrepresentation.
This distinction is best expressed by the
C. A.

i [1950] 1 K.B. 671; 66 T.L.E.

(Pt. 1) 448; [1949] 2 AH E.E. 1107.
2 [1950] 2 K.B. 86; 66 T.L.E.
(Pt. 1) 1031; [1950] 1 All E.B. 693.
3
(1603) Cro.Jac. 4.

* (1689) Carth. 90, as glossed by

Buller J. in Pasley v. Freeman (1789)
3 Term Bep. 51, 57.
* (1699) 1 Salk. 210.
e [1913] A.C. 30, 38, 50, 51.

[1957] 1 W.L.B.

375

ruling of Lord H o l t : W a s it intended as a warranty or not?

C. A.
using the word warranty there in its ordinary English m e a n i n g :
jggg
because it gives the exact shade of meaning t h a t is required. I t
is something to which a m a n m u s t be taken to bind himself.
CHESS LTD.
v
I n applying Lord H o l t ' s test, however, some misunderstanding has arisen by the use of the word " i n t e n d e d ." I t is
1
sometimes supposed t h a t the tribunal m u s t look into the minds Del "'"' g L J of the parties to see what they themselves intended. Tha t is a
mistake. Lord Moulton made it quite clear t h a t 6 " The inten" tion of t h e 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 t h a n on their thoughts.
If an intelligent
bystander would reasonably infer t h a t a warranty was intended,
t h a t will suffice. And this, when the facts are not in dispute, is
a question of law. T h a t is shown by Heilbut, Symons & Go. v.
Buckleton 7 itself, where the H o u s e of Lords upset the finding
by a jury of a warranty.
I t is instructive to take some recent instances to show how
the courts have approached this question. W h e n the seller states
a fact which is or should be within his own knowledge and of
which the buyer is ignorant, intending t h a t the buyer should act
on it, and he does so, it is easy to infer a w a r r a n t y : see Couchman v. Hill,8 where the farmer stated t h a t the heifer was
unserved, and Hurling v. Eddy,9 where he stated t h a t 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.,10 decided on October 2, 1956,
in this court, where the seller stated t h a t the house would be as
good as the show house. B u t if the seller, when h e states a fact,
makes it clear t h a t he has no knowledge of his own b u t 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,11 where the seller " stated t h a t it was a 1942 model
" and pointed to the corroboration found in the book," and it
was held t h a t there was no warranty.
Turning now to the present case, much depends on the precise
words t h a t were used. If the seller says " I believe.it is a 1948
" Morris. H e r e is the registration book to prove i t , " there is
clearly no warranty. I t is a statemen t of belief, not a contractual
promise. B u t if the seller says " I guarantee t h a t it is a 1948
" Morris. This is borne out by the registration book, b u t you
'' need not rely solely on t h a t. I give you my own guarantee t h a t
" it i s , " there is clearly a warranty. The seller is making himself
contractually responsible, even though the registration book is
wrong.
[1913] A.C. 30, 38, 50, 51.
' [1913] A.C. 30.
[1947] K.B. 554; 63 T.L.B. 81;
[1947] 1 All E.B. 103.

[1951] 2 K.B. 739; [1951] 2

T.L.B. 245; [1951] 2 All E.E. 212.
> Unreported: Oct. 2, 1956 (C.A.).
"[1954] 1 W.L.E. 615, 636;
[1954] 1 All E.E. 855.

376

THE WEEKLY LAW EEPOETS

FEB. 22, 1957

C A.
jg 56

i n 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
CHESS LTD. * 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
Denning L.J. a s o n 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 & Go. v.
Buckleton 12 and Routledge v. McKay 13 was because the sales
were afterwards recorded in writing, and the written contracts
contained no reference to the representation. I agree that 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.1* 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 Ghandelor v. Lopus 1S in
1603 a man by word of mouth sold a precious stone for 100
affirming it to be a bezar stone whereas it was not. The declaration averred that the seller affirmed it to be a bezar 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 bezar
" 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 reaffirmed by the House of Lords in Heilbut, Symons <t Co.
v. Buckleton.16
12 [1913] A.C. 30.
" [1954] 1 W.L.E. 615.
" Unreported: Oct. 2, 1956 (C.A.).

is Cro.Jac. 4.
' [1913] A.C. 30, 38, 50.

[1957] 1 W.L.E.

377

One final word: It seems to me clear that the motor-dealers

C. A.
who bought the car relied on the year stated in the log-book. If
igg6
they had wished to make sure of it, they could have checked it
then and there, by taking the engine number and chassis number c HES8 L T D
and writing to the makers. They did not do so at the time, but
v.
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 Denning L.J.
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 " s h u n t " the difference
down the train of innocent sellers until one reaches 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 one is
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. I t 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.
HODSON L.J. 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,17 adopted the enunciation of the true principle of law as laid down by Lord Holt C.J.
in 1688: " An affirmation at the time of the sale is a warranty
" provided it appears on evidence to be so intended." 18
Where, as here, the words of the affirmation are established
the question of intention remains to be determined.

[1913] A.C. 30.

is Carth. 90.

THE W E E K L Y LAW BEPOETS

378
C. A.
1956
OSOAB
CHBSS L T D .

v.

WILLIAMS.

Hodson L.J.

FEB.

22, 1957

Lord Haldane, in Heilbut's case,19 expressed the opinion that,

as 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 20 thought that the question of
intention was one for a jury and said that the intention of the
parties could only be deduced from the totality of the evidence.
Treating the question of intention as one of fact proper for
the determination of the county court judge, one is driven to
inquire 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
against 21 " attempts to extend the doctrine of warranty beyond
" its just limits and find that a warranty existed in cases where
" there was nothing more than an innocent misrepresentation."
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 plaintiffs' representative, a motor salesman, who was
familiar with the car having often had lifts in it, thought it looked
like a 1948 car, and checked up on the registration book.
The defendant was stating an opinion on 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 22 ), 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.23 There a Douglas motor-cycle combination of more ancient date was sold on a representation that it was
a 1942 combination. The information was, 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 24 there was no evidence that the
statement amounted to a warranty. The county court judge
distinguished Routledge v, McKay2S 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. Buckleton2* on the same ground. So
i
2
2
"

[1913] A.C. 30, 36.

Ibid. 50-51.
Ibid. 49.
Ibid. 50.

3
2i
2
*
2
<i

[1954]
[1913]
[1954]
[1913]

1 W . L . E . 615.
A.C. 30.
1 W . L . E . 615.
A.C. 30.

[1957] 1 W.L.E.

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 Routledgc 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 on the same occasion or incorporated in the same
document, although the point was 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 2T and, following the authority
of the House of Lords in Heilbut, Symons & Co. v. Buckleton,2*
I reach a similar conclusion in this case. I would allow the
appeal.
MOERIS L.J. stated the facts and said that without any fault
on their side the plaintiffs had paid the defendant 115 too much.
I t might have been expected that the defendant would in those
circumstances have reimbursed them, unless there were difficulties that prevented him from doing so. But he did not recoup
them and they accordingly brought this action. His Lordship
continued: The statement that the defendant made was that the
Morris car was a 1948 model. This was a definite and unqualified
statement. I t 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 on 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 itbeing 10 more than the amount
allowed to her son for it 14 months later. Her name is recorded
in the book. It is, I think, only reasonable for a purchaser of a
"

[1954] 1 W.L.E. 615.

28 [1913] A.C. 30.

379
C. A.
1956
OSCAR
CHESS L T D .

v.

WILLIAMS.
Hudson L.J.

380

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C. A.
1956
OSOAB
CHESS L T D .

WILLIAMS.

Morris L.J.

FEB. 22, 1957

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 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
" b y a man with knowledge of motor-cars would not have indi" cated 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 on 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 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 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 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 judge has expressed himself as follows: "Although it
" appeared that the plaintiffs' 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

[1957] 1 W.L.B.

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.
" 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
Ladd told me that, for the purpose of calculating the allowance
he would give the defendant, he used Glass's Guide, a wellknown 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 that
the defendant knew that 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 the defendant's statement
that the car was a 1948 model was made otherwise than in
good faith, but so far as 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 Ladd lifts in the car, it was not suggested that 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 hirepurchase 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, s. 11.
On this basis the 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 judge applied his mind to the tests
laid down in Heilbut, Symons & Co. v. Buckleton.2* In his speech
in that case Lord Moulton 30 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
29

[1913] A.C. 30.

so ibid. 49.

381
C. A.
1956
ORCAR
CHESS L T D .

v.

WILLIAMS.

Morris L.J.

382

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C. A.
1956
OSCAR
CHESS L T D .

v.

WILLIAMS.
Morris L.J.

FEB. 22, 1907

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 Holt C.J. 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 this case a part of the contract
the judge distinguished Routledge v. McKay,31 which was one
in which the principles laid down in Heilbut, Symons & Co. v.
Bucldeton 32 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 33 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. I t
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 M.E. said 3 4 : " T h i s 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 warrantythat 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 con" sistent with a warranty being given at the same time and so
" a s 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
[1954] 1 W.L.E. 615.
32 [1913] A.C. 30.

" [1954] 1 W.L.E. 615, 621-622.

34 ibid. 621.

383

[1957] 1 W.L.E.

"
"
"
"

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
" t h e 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 seems 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 observa" tions, that in answering the question posed about the date of
" this Douglas there was anything more intended than a mere
" representation."
The 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 35 ) an antecedent statement and
then a later written contract which omitted any incorporation of
or reference to the statement. Routledge 's case 35 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, on
which the plaintiffs contracted: compare Bannerman v. White.36
In Couchman v. Hill" 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) Scott L.J. said 3 8 : " 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 on a consideration of the evidence that he
heard, the judge came to the conclusion that the statement which
[1954] 1 W . L . E . 615.
3 (1861) 10 C.B.N.S. 844.

" [1947] K.B. 554.

** Ibid. 559.

C. A.
1956
OSCAR
CHESS L T D .

v.

WILLIAMS.
Morris L.J.

384

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C. A.
1956
OSOAB
CHESS L T D .

o.

WILLIAMS.

Morris L.J.

FEB. 22, 1957

he held to have been made by the defendant at the time of the

making of the contract was a s t a t e m e nt m a d e contractually. I t
seems to m e t h a t the totality of the evidence points to t h a t view.
The statemen t related to a vitally important m a t t e r : it described
the subject-matter of the contract then being made and the statem e n t directed the parties to, and was the basis of, their agreement
as to the price to be paid or credited to t h e defendant. I n t h e
language of Scott L . J . , 3 8 it seems to me t h a t the statemen t m a d e
by the defendant was '' an item in the description '' of what was
being sold and t h a t it constituted a substantial ingredient in the
identity of the thing sold.
I t is with diffidence t h a t I arrive at a conclusion differing from
that of m y Lords, but I cannot see t h a t the judge in any way
misdirected himself or misapplied any principle of law, and I see
no reason for disturbing his conclusion.
Appeal
alloivcd.
Leave to appeal to the House of Lords
refused.
Solicitors: Holder Roberts & Co. for Ivor Evans & Benjamin,
Swansea; A. King-Davies & Son,
Maesteg.
M. M. H .
as [1947] K.B. 554, 559.

[COURT OF APPEAL.]
C. A.
1956
Nov. 29.
Denning,
Hodsou and
Morris L.JJ.

* F E I B A N C E v. F E I B A N C B (NO. 2).
Husband and WifePropertyProceedings
under Married Women's
Property Act, 1882, s. 17House purchased for homeProportions
of payment of priceDecree nisiWife's claim to share in house
Married Women's Property Act, 1882 (45 & 46 Vict. c. 75), s. 17.
Parties who married in 1933 became in 1940 tenants of the
ground floor of a dwelling-house, at which time they had two
children. On the husband joining the Royal Air Force it was
agreed that he should retain all his pay and allowances, except for
the compulsory allotment to the wife, and save what he could, while
the wife should go to work to support the family. On demobilization in 1946 the husband had some 260 in savings and gratuity,
part of which was spent for the benefit of the family. Thereafter
he handed the bulk of his earnings to his wife, who continued to
work and support the household with her earnings.
In 1950 the leasehold of the matrimonial home was acquired in
the husband's name for 950, of which 800 was raised on mortgage ; 130, the remains of his savings, was contributed by the
husband, and 20 was contributed by the wife from the surrender
of an insurance policy. In 1952 differences arose between the
parties, which led to a suit for divorce by the wife, who before
decree absolute applied under section 17 of the Married Women's
Property Act, 1882, for an order to determine the interests of the
parties in the house. The registrar held that the wife's interest