Cundy v Lindsay
House of Lords
Citations: (1878) 3 App Cas 459; [1874-80] All ER Rep 1149; (1878) 14 Cox CC 93; (1878) 38 LT 573.
Facts
Lindsay sold goods by letter to a rogue who represented themselves as ‘Blenkiron & Co’ of 37 Wood Street. There was a real and respectable company in the area by the name of W Blenkiron & Co occupying premises at 123 Wood Street. The rogue took possession of the goods without paying, before selling them to the Cundy. Cundy was not aware of the fraud.
Lindsay sued Cundy for the return of the goods in the tort of conversion. To establish this, they had to show that their contract with the rogue was void or otherwise had never existed. If it is was merely voidable for misrepresentation, then property would have passed to the rogue, who would have passed that property to Cundy before the contract could be voided.
Issue(s)
- Was the contract between the rogue and Lindsay void?
Decision
The House of Lords held in favour of Lindsay. There had never been a valid contract between Lindsay and the rogue. Therefore, the rogue never acquired any property in the goods which he could pass on to Cundy.
This Case is Authority For…
A person cannot pass on better title than they themselves possess. This is sometimes known by the latin phrase nemo dat quod non habet.
Where a rogue attempts to contract in writing by impersonating another, real person or company, no contract is formed. Modern cases have interpreted this as an early example of a contract being void for unilateral mistake.
Other
This case also includes discussion of the old ‘market overt’ rules, which have since been superseded by the Sale of Goods Act 1979.
