Mistake as to identity of the person with whom the contract is made

Cundy v. Lindsay (1873) 3 App CAS 459 (HL)

A rogue, Blenkarn, ordered a quantity of handkerchiefs from claimant disguising the signature
toappear as Blenkiron. The goods were dispatched by P to Blenkarn but payment failed.

Blenkarn sold a quantity the handkerchiefs on to D who purchased them in good faith and
soldthem on in the course of their trade.

P brought an action based in the tort of conversion to recover the value of the handkerchiefs.

The success of the action depended upon the contract between the Blenkarn and P being
voidfor mistake. If the contract was void, title in the goods would not pass to the rogue so he
wouldhave no title to pass onto D. Ownership of the goods would remain with P.

It was held that the contract was void for unilateral mistake as P was able to demonstrate
anidentifiable existing business with whom they intended to contract with.

King’s Norton Metal Co v. Edridge, Merrett & Co (1879) 14 TLR 98 (CA)

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A rogue ordered goods from the claimant using a printed letter head a claiming to be a
companycalled Hallum & co with offices in Belfast Lile and Ghent (a company which does not
exist inreality).

P sent out the goods on credit. The rogue sold the goods on to D who purchased them in
goodfaith.

The rogue then disappeared without paying for the goods.

P brought an action for conversion of the goods based on their unilateral mistake as to identity.

The court held that the contract was not void for mistake as they

could not identify an existing

company called Hallum & co with whom they

intended to contract

Phillips v. Brooks Ltd [1919] 2 KB 243

A rogue purchased some items from the claimant's jewelers shop claiming to be Sir
GeorgeBullogh.

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He paid by cheque and persuaded the jewelers to allow him to take a ring immediately as he

claimed it was his wives’ birthday the following day.

The rogue then pawned the ring at

D’s

pawn shop and disappeared.

P sued D, who were the pawnbrokers, for the return of a ring or, alternatively, its value,
anddamages for its detention.

P brought the action based on unilateral mistake as to identity.

It was held that the contract was not void for mistake.

Where the parties transact face to face the law presumes they intend to deal with the person
infront of them not the person they claim to be. The jewelers were unable to demonstrate
thatthey would only have sold the ring to Sir George Bullogh.

Ingram v. Little [1961] 1 QB 31 (CA)

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A person presenting himself with a different but existing name (Rogue) bought a car from P.

The rogue paid with a check so before accepting the cheque, P checked the name in the phone

book and confirmed the rogue’s given name and address.

However the cheque was dishonored and in the meantime, the rogue sold the car to D,
whobought the car as a bone fide buyer.

It was held that the contract was void for mistake.

The Court of Appeal held that P only intended to deal with Mr. Hutchinson (rogue) at theaddress
given because they were not willing to offer a sale for payment by cheque from anyoneelse.

This case has received widespread criticism and has not been followed since.

Lewis v. Avery [1972] 1 QB 198 (CA)

P sold his mini cooper to a rogue claiming to be the actor Richard Greene (who played
RobinHood in a series at the time).

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P, believing the words of the rogue, let him take the car with the log book in exchange for
acheque for £430 which was later dishonored.

The rogue sold the car on to Mr. Avery for £200 claiming to be P.

P alleged that since there was a mistake as to identity, the contract between him and the
roguenever existed. Thus, the title never passed, and the car still belongs to him. He seeks
damagesfrom D since he has his car.

It was held that the contract was not void for mistake.

The case of Ingram v Little was criticized by all of the judges although not formally overruled.The
presumption that the parties intend to deal with the person in front of them was notdisplaced.

Non est factum (it is not his or her deed)

Muskham Finance Ltd v. Howard [1963] 1 QB 904, 914

Saunders v Anglia Building Society [1971] AC 1004 (HL)

Mrs. Gallie, a woman of 78 years, signed a document which stated it was the sale of her
interestin her home to Mr. Lee.

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But she thought she was signing a deed of gift of the house to her nephew.

Also she didn’t read

the deed because her spectacles was broken.

Using the signed deed, Mr. Lee mortgaged the house to D for £2,000. Mr. Lee defaulted
inpayments and D brought an action for possession of the house.

P then sued D for the recovery of the title deeds saying that the deed was void.

The agreement between Mr. Lee and Mrs. Gallie had been held to be voidable
formisrepresentation. However, in the action against the building society Mrs. Gallie raised
theplea of non est factum

(it’s not my deed).

Held: The House of Lords found against Mrs. Gallie. The document was not radically different
tothat which she believed it to be in that she believed that she was relinquishing her rights to
theproperty in any event.

Furthermore the House of Lords stated that the plea of non est factum should not be too
widelyapplied and reserved for those who through no fault of their own are unable to read
thedocument e.g. blind, illiterate or incapacitated through age.

In equity:
Refusal of an order for specific performance

Webster v. Cecil (1861) 30 Beav 62

P was offered land by D for £1250 (which P immediately accepted) soon after sending the
offerletter D realized he should have set the price as £2250 and informed P immediately.

P must have been aware of D

’s mistake as

D had already refused an offer of £2000 from P.

Held the court refused specific performance because P had not acted equitably.

In that he must have been aware of D

’s unilateral mistake and therefore had not come to court

with clean hands.

Rectification of a written contract

Craddock Bros v. Hunt [1923] 2 Ch 136