CT. OF APP.]

the large proposition be correct. Presumably the owner would be liable if dog bit dog or cat. Such cases have occurred, I suppose, thousands of times without any trace that I can find of legal liability, and in the correlative case of cat biting dog the liability has been negatived: (Clinton v. J. Lyons and Co. Limited, 106 L. T. Rep. 988; (1912) 3 K. B. 198), and, as has been put in argument in one of the cases, is the owner liable if a cat eats a neighbour's canary? There can be no distinction in principle, so far as this proposition is concerned, between animals subjects of larceny at common law and animals not such subjects.

The truth is, I think, that the foundation of the liability in cases of Fletcher v. Rylands (ubi sup.), and in the special case of cattle trespass, is the duty to keep the animal in control. It appears to me that the principle has no application to cases where tame animals with no special individual mischievous propensity are lawfully let loose in the course of the ordinary use of them, and the only danger to be apprehended is from contact with other animals in places where they may all lawfully be.

I think that the truth as to animals is correctly expressed with the proper limitations in the judgments of Williams and Willes, JJ. in Cox v. Burbidge (13 C. B. (N. S.) 430, at pp. 438 and 439): "I apprehend the general rule of law to be perfectly plain. If I am the owner of an animal in which by law the right of property can exist, I am bound to take care that it does not stray into the land of my neighbour; and I am liable for any trespass it may commit, and for the ordinary consequences of that trespass. Whether or not the escape of the animal is due to my negligence is altogether immaterial. I am clearly liable for the trespass, and for all the ordinary consequences of the trespass, subject to a distinction which is taken very early in the books, that the animal is such that the owner of it may have a property in it which is recognisable by law. For instance, if a man's cattle or sheep, or poultry, stray into his neighbour's land or garden, and do such damage as might ordinarily be expected to be done by things of that sort, the owner is liable to his neighbour for the consequences." And Willes, J. says; "The distinction is clear between animals of a fierce nature and animals of a mild nature which do not ordinarily do mischief like that in question. As to the former, if a man chooses to keep them, he must take care to keep them under proper control, and, if he fails to do so, he is taken to know their propensities, and is held answerable for any damage that may be done by them before they escape from him and return to their natural state of liberty. As to animals which are not naturally of a mischievous disposition, the owner is not responsible for injuries of a personal nature done by them unless they are shown to have acquired some vicious or mischievous habit or propensity, and the owner is shown to have been aware of the fact. If the animal has such vicious propensity, and the owner knows of it, he is bound to take such care

[K.B. Div.

as he would of an animal which is feræ naturæ, because it forms the exception to its class."

There appears to me to be no such general principle of law as is adopted by the County Court judge. If there had been it seems to me inconceivable that it should not have been enforced before this date.

I may add that, in this particular case, I think that the true inference is that the owner of the horse, which he had placed in the field, took the risk of damage arising from the introduction of other animals, not due to any special mischievous propensity of such animal. But as this point does not appear to have been expressly raised in the County Court, and in deference to the elaborate argument addressed to us on the other points, I have preferred to found my decision upon the reasons already given.

I think, therefore, that as there was here no negligence and no trespass, the appeal should be allowed with costs here and below, and judgment entered for the defendant with costs on the scale allowed by the County Court judge.

Solicitors for the appellants, Smith and Hudson, agents for Payne and Payne, Hull.

Solicitors for the respondent, Windybank, Samuel, and Lawrence, agents for Laverack, Wray, and Co., Hull.

66

AGENCY

Principal and agent-Entrustment by owner to pretended agent for a specific purpose-Pretended mercantile agent "-Fictitious person put forward as buyer-Sale of motor-car without authority Larceny by by a trick-Claim by owner against subsequent buyer—Estoppel— Factors Act 1889 (52 & 53 Vict. c. 45), s. 2Sale of Goods Act 1893 (56 & 57 Vict. c. 71), s. 21.

The plaintiff had a motor-car for sale. In Oct. 1921 the plaintiff made the acquaintance of one N., who represented that he had a friend named H. whom he described as a man of means and who, he said, might buy the plaintiff's motor-car for 2101. On this, the plaintiff, on the 28th Oct. 1921, entrusted his motor-car to N., solely for the purpose of driving it to H.'s home and of trying to get H. to buy the plaintiff's motor-car for 2101. Subsequently, N. informed the plaintiff that he had sold the motor-car to H., and that H. would pay the price soon. All this was untrue. There was no such person as H., and N. only made the representation which he did to the plaintiff in order to get possession of the plaintiff's motor-car for his own benefit. N. used the plaintiff's motor-car for a few weeks (a) Reported by T. W. MORGAN, Esq., Barrister-at-Law.

K.B. Div.]

and then sold it through an intermediary to the defendants for 110l. This sum N. retained. The plaintiff, having ascertained that his motorcar was in the defendants' possession, brought an action against them, claiming its return. Held, that as the plaintiff had never given any real consent to N. having the property in the motor-car, or to the property in the motor-car passing to N., the latter had obtained the motorcar from the plaintiff by means of larceny by a trick, and the plaintiff was entitled to the return of the motor-car, subject to any defences which might be open to the defendants under sect. 2 of the Factors Act 1889 and sect. 21 of the Sale of Goods Act 1893.

Folkes v. King (128 L. T. Rep. 405; (1923) 1 K. B. 282) considered and distinguished. Held, that the defence under sect. 2 (1) of the Factors Act 1889 was not open to the defendants as N.was not a “mercantile agent," nor was the sale by him of the plaintiff's motor-car a sale in the ordinary course of his business as a mercantile agent, and the defendants had failed to satisfy the onus which lay on them of showing that, at the time they bought the motor-car, they had no notice that N. had no authority to sell the motor

car.

Held, that the plaintiff was not precluded by his conduct from denying N.'s authority to sell the motor-car, and therefore the defendants acquired no better title to the motor-car than N. did, and the plaintiff was entitled to the return of the motor-car.

ACTION tried by Lush, J. without a jury.

The plaintiff's claim was for the return of a 1920 Citroen motor-car, or its value. The defence was that the plaintiff's motor-car came into the possession of the person selling it to the defendants, with the knowledge and consent of the plaintiff. The defendants also relied on sect. 2, sub-sect. 1, of the Factors Act 1889, and sect. 21, sub-sect. 1, of the Sale of Goods Act 1893.

The plaintiff was a motor engineer and carried on business in London in partnership with a Mr. Horgan. He had for sale a Citroen motorcar, which was a 1920 motor-car of 10 horsepower, left-hand steered and having a fourseater body. He valued the motor-car at 2101. During Oct. 1921, the plaintiff became acquainted with a man who described himself as Captain the Hon. Roger North. On learning that the plaintiff was desirous of selling the motor-car, North represented to the plaintiff that he had a friend, a Mr. Hargreaves, of Uxbridge, who was a man of means and who might buy the car for 2101. He was consequently allowed by the plaintiff, on the 28th Oct., to have possession of the car solely for the purpose of driving it to Uxbridge and endeavouring to sell it to Hargreaves for 2101. On the same day North returned to the plaintiff and said that Mr. Hargreaves had bought the car for 210l., and that he would pay for it when he returned from a short holiday upon which he was just starting. He also said that Hargreaves was willing that during his absence North should

[K.B. Div.

have possession of the car for his own use. On being asked the reason of the delay in payment North told the plaintiff that Hargreaves was so rich that he did not like to trouble him for such a small sum as 2101. North then proceeded to use the car, and later on, on the pretext that Hargreaves was about to pay for the car, he obtained the registration book from the plaintiff. The plaintiff never received payment for the car, nor was the registration book returned.

While the plaintiff's motor-car was in North's possession he obtained a situation as sales agent for a firm of motor-engineers, and while so employed he became acquainted with a man named Cory who, at his suggestion, approached the defendants with a view to their purchasing the car. Cory told the defendants that Captain the Hon. Roger North was prepared to sell it at the very low price of 1101. On the 1st Dec. 1921 the defendants bought the car through Cory for 1101. Payment was made by a cheque payable to Cory and dated the 1st Dec., and Cory gave a receipt of the same date.

There was no such person as Hargreaves and the whole story told by North to the plaintiff was a fiction. North was in fact a convicted thief, who had three or four convictions against him and was at the time of this trial serving a term of penal servitude for stealing a motor-car. These facts, however, were not known by either the plaintiff or the defendants until after the latter had purchased the car.

The plaintiff having found out that the defendants had his motor-car, demanded the return of the car or its value.

At the hearing evidence for the plaintiff was given that when the car was entrusted to North it was worth 2651., and for the defendants that 1107. was a fair price for the defendants to have paid for the motor-car having regard to its condition.

The Factors Act 1889, s. 2, sub-s. 1:

Where a mercantile agent is, with the consent of the owner, in possession of goods or of the documents of title to goods, any sale, pledge, or other disposition of the goods, made by him when acting in the ordinary course of business of a mercantile agent, shall, subject to the provisions of this Act, be as valid as if he were expressly authorised by the owner of the goods to make the same; provided that the person taking under the disposition acts in good faith, and has not at the time of the disposition notice that the person making the disposition has not authority to make the same.

The Sale of Goods Act 1893, s. 21, sub-s. 1 :

Subject to the provisions of this Act, where goods are sold by a person who is not the owner thereof, and who does not sell them under the authority or with the consent of the owner, the buyer acquires no better title to the goods than the seller had, unless the owner of the goods is by his conduct precluded from denying the seller's authority to sell.

Wilfrid Lewis for the plaintiff.

Gerald Dodson for the defendants.

K.B. Div.]

intend either that North should himself have the property in the car, or that he should pass the property in the car to any real person as would have been the case if he had instructed North to find a purchaser for the car. What he did intend was that North should have possession of the car in order to take it and show it to a person who in fact had no existence —namely, the alleged Hargreaves. There was no Hargreaves. The whole story relating to him was an invention, and the whole scheme a fraud. It is not true to say that the plaintiff intended that North should pass the property to anybody. If he had known that there was no Hargreaves the car would not have gone out of his possession. He did not instruct North to find somebody to buy the car and take delivery of it from North. The whole transaction was, in my opinion, just as much a nullity as it would have been if North had induced the plaintiff to give him the car by pretending to be somebody who in fact he was not.

In Whitehorn Brothers v. Davison (104 L. T. Rep. 234; (1911) 1 K. B. 463) Buckley, L.J. dealt with an analogous case and considered whether it ought to be treated as a case of larceny by a trick in which the property does not pass, or of obtaining by false pretences in which it does. He said (104 L. T. Rep. 234; (1911) 1 K. B. 463, at p. 479): "I think there is larceny by a trick where the owner of goods, being induced thereto by a trick, voluntarily parts with the possession of the goods, but does not intend to pass the property in them, and the recipient has the animus furandi; and the same is true where the owner of the goods does not intend to pass the property in them to the particular person with whom he is dealing, and has been deceived by that person as regards the identity of the person with whom he is dealing."

That principle is just as applicable to a case like this where the man Hargreaves, who was the only person with whom the plaintiff thought he was dealing, did not exist at all, as to the case put by Buckley, L.J. The whole story about Hargreaves was false and there was no such person, and therefore there was no intention on the part of the plaintiff to pass the property to anybody. That being so, I do not think that the case of Folkes v. King (sup.) assists me, or in any way governs this case. There being no authority fettering my decision, I think that the true view to take in this case is that North obtained possession of this car by a trick, animo furandi, that the property never passed to him, and that he never had the right conferred upon him to pass the property to anybody else.

It follows that the plaintiff should succeed unless the defendants can bring themselves within some statutory provision giving them a defence to the action. I will deal with the defences in order.

It was said first that sect. 21, sub-sect. 1, of the Sale of Goods Act 1893 afforded a defence. That sub-section provides that where goods are sold by a person who is not the owner, and who does not sell them under the authority or with

[K.B. Div.

the consent of the owner, the buyer acquires no better title than the seller had "unless the owner of the goods is by his conduct precluded from denying the seller's authority to sell."

The defence founded on that sub-section is raised in these circumstances. North having got the car, used it in order to go to the premises of a well-known firm of motor engineers who employed him for a time as an agent to sell cars of theirs if he could. North appears then to have become acquainted with a man named Cory who was also employed by the firm. North seems to have thought it likely that the defendants, who are themselves dealers in motorcars, might buy this car, but, apparently for reasons of prudence, instead of going to the defendants himself he got Cory to approach them. Cory, as to whom nothing is known either for him or against him, and has gone where nobody can find him, went to the defendants, told them that North had this car, which he was able to show them, for sale at the very low price of 110l., and asked them to buy it. I need not for the moment consider whether the defendants dealt with Cory or with North, I need only now say that they ultimately bought the car. On the assumption that for this purpose North was the seller of the car to the defendants, it is said that the plaintiff by his conduct is estopped from denying North's authority to sell to them. I cannot follow the argument that was addressed to me on behalf of the defendants on this part of the case.

It is true that the plaintiff was very trustful in parting with the possession of the car, and in letting North go on using the car without accounting for the price. He was not so careful as he should have been in his own interest, but that does not mean that he was negligent in the sense that he broke some duty that he owed to the defendants. Negligence, in order to give rise to a defence under the section in question must be more than mere carelessness on the part of a person in the conduct of his own affairs, and must amount to a disregard of his obligations towards the person who is setting up the defence. There is, in my opinion, no evidence to show that the plaintiff was negligent in that sense and to justify the defence that he is precluded from denying the seller's authority to sell.

Another defence set up is under the Factors Act 1889, s. 2, which I have already read. It is said here that North was a mercantile agent, that with the consent of the plaintiff he was in possession of the car, that he sold the car when acting in the ordinary course of business of a mercantile agent, and that, therefore, the sale was as valid as if he had been expressly authorised by the owner to make the sale. Do the facts here establish that defence? In my opinion they do not for several reasons. The section says that if a person voluntarily allows a mercantile agent to have possession of a chattel for the purpose of selling it, then the sale effected by the mercantile agent in the ordinary course of business shall be valid subject to the proviso which I will deal with in a moment. In order

K.B. Div.]

to see whether that section applies one must consider first whether the owner parted with the possession of the chattel to a mercantile agent. If at the time the owner parted with the possession the recipient was not a mercantile agent, if the owner did not part with the possession to a man who was filling that capacity, then in my opinion the section does not apply. Take the case that I put during the argument: A man who at the time is not carrying on any business, or acting in any business capacity, asks the owner of a car to lend it to him to drive to a place where he has an urgent mission to fulfil and says that he will bring it back in half-anhour. He gets the car by cheating the owner out of the possession of it. The fact that he afterwards becomes a dealer and sells it as a mercantile agent does not bring the case within the section, because the owner in that case did not put it into the power of a mercantile agent to sell and make an apparently good title to the chattel. Here North got possession of this car from the plaintiff at the time when North was not a dealer in cars. He got it by posing as the friend of a man named Hargreaves to drive it to Hargreaves and show it to him. I do not think that North was a mercantile agent within the meaning of this section. He no doubt became an agent for the sale of cars before he got Cory to sell this car to the defendants, but he was not a mercantile agent at the time when he was entrusted with the car by the plaintiff. I do not think that there has ever been any sale by a mercantile agent within the meaning of this section. Another reason why I think this section does not apply is that North, if he was a mercantile agent, did not sell this car to the defendants. The defendants did not rely upon the position of North as the mercantile agent. On the contrary, when the defendants were told by Cory that North had this car they seem to have been a little suspicious about North, who had not produced any registration book, and they said both in letters and by word of mouth that they made a special point of not buying the car from North. They said by their representative that they knew Cory and were only willing to buy from Cory, and they made out their cheque to Cory. I do not think that North as a mercantile agent ever sold the car to the defendants. Moreover, if North did as a mercantile agent sell the car to the defendants, I do not think that he was acting in "the ordinary course of business of a mercantile agent." The sale was a very peculiar transaction, and it seems to me that that provision of the section was not complied with. For these reasons, I do not think that sect. 2, sub-sect. 1, applies to this case.

If, however, that part of the sub-section does apply, there remains a further very serious question. The sub-section has the following proviso: "provided that the person taking under the disposition acts in good faith, and has not at the time of the disposition notice that the person making the disposition has not authority to make the same.' That proviso has two distinct parts. The first requires that

[K.B. Div.

the person taking under the disposition acts in good faith. The second, and I think it is different, requires that that person has not notice that the person making the disposition has not authority to make it. In dealing with the proviso the first question that arises is, on whom is the onus of proof? Must the defendant who sets up the section prove that he acted in good faith and without notice, or must the plaintiff who is seeking to assert his title to the goods prove that the defendant was not acting in good faith or that he had notice? I was asked to hold on the authority of Whitehorn Brothers v. Davison (sup.) that here the onus was on the plaintiff. I do not think that that case supports that view. In that case the question raised turned upon sect. 23 of the Sale of Goods Act 1893, which provides that: "When the seller of goods has a voidable title thereto, but his title has not been avoided at the time of the sale, the buyer acquires a good title to the goods provided he buys them in good faith and without notice of the seller's defect of title."

That,

The language of that section is no doubt somewhat similar to that of the section in question, but I think that it deals with quite a different subject-matter. I have no doubt that in Whitehorn's case (sup.) the court did hold that the onus was on the plaintiff to prove that the defendant bought in bad faith. however, was quite a different case from this, because there the title that the seller would have under that section was a good title. It was a voidable title, but that voidable title had not been avoided at the time when the purchaser bought. The section gave him a good title that he would retain unless it could be shown that he had not bought in good faith or without notice. The Court of Appeal said that if the owner wanted to impeach the title he must prove that the buyer bought in bad faith or had notice. Under sect. 2 of the Factors Act 1889, however, the buyer gets no title apart from the section. He is allowed to get what I may call a statutory title provided he complies with the terms of the section. In order to acquire a title which he would not otherwise have, the buyer has to prove all these things that I have mentioned; that the owner consented to the mercantile agent having possession, that the agent acted in the ordinary course of business, and also, I think, that the buyer acted in good faith and had no notice.

If the onus is on the defendants, they have certainly failed to satisfy me that they had no notice that the person selling the car, that is North, had no authority to sell. Indeed, I think that, for this purpose, wherever the onus rests, the defendants must be taken to have had notice. To begin with, the.car appears to have been bought considerably under the value, though I do not say that the undervalue was so great as to show actual dishonesty. The defendants have endeavoured to prove that it would have cost them 50l. or 60l. to put it right, and that must no doubt be taken into account; but to my mind it would not have cost them more than 10l. or 121., an outlay