8/2/2019 Cundy v Lindsay
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Cundy v Lindsay
Facts
Lindsay & Co were manufacturers of linen handkerchiefs,
amongst other things. They received correspondence
from a rogue named Blenkarn. He had rented a room at 37 Wood
Street, Cheapside, but purported to be
'Blenkiron & Co', with premises on 123 Wood Street.[4]
Lindsay & Co knew of a business named as 'Blenkiron
&
Co', and knew them to be reputable and residing on the same
road. Under this guise, and the rogue's signing of
his letters as 'Blenkiron & Co', Lindsay & Co sold the
rogue a large order of handkerchiefs .[4]
Blenkarn then sold
the goods - 250 dozen linen handkerchiefs - to an innocent third
party, Cundy, whom Lindsay & Co sued
forconversionof the goods.
[edit]Judgment
[edit]Divisional Court
The Divisional Court held that Lindsay could not recover the
handkerchiefs from Cundy. Blackburn J, giving
judgment, held the following.[5]
The rule of law has been thoroughly establishedthe cases are
numerous, and I need not citethemthat where a contract is voidable
on the ground of fraud, you may avoid it, so long as thegoods
remain in the man's hands who is guilty of the fraud, or in the
hands of anybody who takes
them from him with notice; but where a person has bon fide
acquired an interest in the goods, you
cannot, as against that person, avoid the contract. Where the
goods have come into the hands of a
bon fide purchaser you cannot take them back. The case is very
closely analogous to the old
common-law rule, in the case of felony or trespass. If goods are
stolen or taken away by trespass,
no title whatever is conferred, in general, upon a purchaser
from the person who took them,
however bon fide the purchase may have been; but if the sale be
in market overt to a person who
has no knowledge of the felony or trespass, then the purchaser
acquires the property,notwithstanding the goods had been taken from
the owner by felony or trespass.
Mellor J and Lush J agreed.
[edit]Court of Appeal
The Court of Appeal, with Mellish LJ, Brett J and Amphlett JA
overturned the Divisional Court, holding that
Lindsay could recover the handkerchiefs, since the mistake about
the identity of the rogue voided the contract
from the start. Cundy appealed.
[edit]House of Lords
TheHouse of Lordsheld that Lindsay & Co had meant to deal
only with Blenkiron & Co. There could thereforehave been no
agreement or contract between them and the rogue. Accordingly,
titledid not pass to the rogue,
and could not have passed to Cundy. They were forced to
therefore return the goods.
Lord Cairnsexplained the mistake to identity, and the
consequences:
Now, my Lords, stating the matter shortly in that way, I ask the
question, how is it possible toimagine that in that state of things
any contract could have arisen between the Respondents andBlenkarn,
the dishonest man? Of him they knew nothing, and of him they never
thought. With him
they never intended to deal. Their minds never, even for an
instant of time rested upon him, and as
between him and them there was no consensus of mind which could
lead to any agreement or any
contract whatever. As between him and them there was merely the
one side to a contract, where, in
order to produce a contract, two sides would be required. With
the firm of Blenkiron & Co. of coursethere was no contract, for
as to them the matter was entirely unknown, and therefore the
pretence of
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