Tim advertised that he was selling his Porch Short Boxer car in the newspaper to which the rogue later responded by visiting him. The advertisement by Tim is merely an invitation to treat which essentially paves the way for submission of offers to which Tim is free to accept or reject. This was the case in Partridge v Crittenden where Lord Parker CJ made a comment to the effect that if an advertisement were to be regarded as an offer, advertisers would be faced with a situation where they are under an obligation to sell the advertised goods to everyone who accepted the offer. In this case, the defendant had put an advertisement in a magazine offering to sell bramble finches contrary to section 6 of the Protection of Birds Act of 1954 which proscribed such sale. The defendant was consequently convicted for the offence and appealed against conviction. The Court of Appeal quashed the conviction and held that an advertisement was an invitation to treat and the defendant could not, therefore, have been said to have offered to sell the birds. It follows from this decision that the advertisement by Tim is no more than an invitation to treat so that prospective buyers can submit offers.
Subsequent to the advertisement, the rogue went to Tim’s house and made an offer to buy the car at the price advertised by Tim but pay the money through a cheque. Since the rogue did not offer to buy the car at a different price, he did not give a counteroffer. At this mention, Tim was apprehensive over the offer by the rogue to which the rouge sought to allay the fears by claiming to have been a famous Hollywood actor named Rusty Crow. In addition, the rogue showed Tim an identity card from the Hollywood film studio to which he allowed the rogue to take the car right away. From these facts, it is certainly the case that an offer was made and consequently accepted by Tim for a consideration. As such, it becomes a valid contract unless it can be shown it was tainted by any vitiating factor. It is evident that Tim was at first hesitant in dealing with the rogue by way of cheque until he claimed (untruthfully) that he was a famous Hollywood actor.
This is a case of mistake as to the identity of the rogue, who purported to be the famous Rusty Crow. In the case of Phillips v Brooks, a rogue named North visited a jeweler, the plaintiff in this case and chose pearls and a ring. He misrepresented to the seller that he was Sir George Bullough with an address at St. James Square London and wrote a cheque in payment to which the jeweler agreed having known that the said George Bullough was a man of means. The jeweler even referred to a directory and confirmed that the rogue lived at St. James Square as he had represented and he consequently allowed him to take away the ring altogether. The cheque was later found to be of no wroth and North had already pawned the ring with a pawnbroker who had taken it innocently, for value and without any notice. The plaintiff brought an action alleging conversion from the third arty seeking the return of the ring. The court held that the jeweler intended to contract with the person in front of him, namely North, though he would not have done so but for the misrepresentation by the rogue. Consequently, the property in the ring had passed to the rogue and he could as such give a good title thereto to the third party and the plaintiff could not recover the ring. It would therefore appear from this decision that Tim has no claim against Irene, the Scottish widow who was sold the car by the rogue.
It is also instructive to note that though Tim was wary at first and reduced the contractual agreement to writing, he did so mainly because he wanted to have the autograph of the actor. In the case of Ingram V Little which was later overruled, two sisters who had been misrepresented by a rogue and sold their car to a rogue who paid by cheque were able to recover from the third party who had acquired the car for value and in good faith. The court predicated their ruling on the fact that since the sisters had checked and confirmed the identity of the rogues as of what he purported to be, they had intended to contract only with the other person and not the rogue. Even in this event, it is evident that Tim was more interested in the autograph and may therefore not argue that he intended to contract with the famous actor Rusty Crow.
In fact, the Ingram decision was overruled by the ruling in Lewis V Avery, a substantially similar case in facts. In Lewis V Averay case, Lewis advertised for sale to which a rogue tested the advertised car and said that he liked it. He posed a well-known actor by the name Richard Green and they agreed on the price to which the rogue wrote a cheque in payment. When the rogue said that he wanted to take the car at once, the seller required his identity to which he showed him a studio pass bearing the name of a famous actor by the name of Richard Green and an autograph making Lewis to allow him to take away at the car. The cheque was subsequently dishonored while the rogue had already sold the car to Avery who acquired it in good faith and for value. The seller brought action for recovery of the car from Avery, which failed with the court overruling Ingram case and holding that where a transaction takes place intraprasaentes (face-to-face) there is a presumption that the seller contracts with the one in front of him.
Similarly, in this instance, it is evident that Tim did not regard the identity of the rouge as important but was rather concerned with his attribute-that of his creditworthiness. In light of the decision in Phillips v Brooks and Lewis V Averay, it is likely that Tim will fail in his claim for recovery of his car since he did not avoid the contract in time. He is thus advised not to pursue this action.
Nancy hired a concrete mixer, the Little Gummy in the belief that it would complete the intended work within a day as represented to by the company salesman, Mr. Fib. However, this was not the case and forced Nancy to take an extra two days to carry out the assignment. Mr. Fib and relied on the Concrete Quarterly magazine while representing to Nancy about the capacity of the mixer though he had the original manufacturer’s documents which stated otherwise though they had since gone missing.
In view of the facts, the case revolves around possible misrepresentation of facts and conditions of the hire contract of goods. Misrepresentation involves the making of an untrue statement which has the effect of inducing a party to enter into a contract. It is clear that Nancy entered into the contract of hiring the mixer after being sure that she would complete the work within a day as urged on by the salesman. To this end, the statement by the salesman fits within the definition of misrepresentation as it was also untrue. Further, Mr. Fib had the original manufacturer document which stated the real capacity of the mixer but instead relied on an article he had read from a magazine to influence Nancy. It is also noteworthy that the original manufacturer’s documents had since gone missing and therefore the advice by the salesman could be taken to be innocent misrepresentation. Accordingly, Nancy seems likely to succeed in her action by way of rescinding the contract or obtaining damages for the harm occasioned in accordance to sec 2(2) of the Misrepresentation Act of 1967.
Further, the contract for hire of the mixer is governed by the Supply of Goods and Services Act of 1982 as the goods (mixer) that she hired did not meet the description. Sec 3(2) and sec 8 of the Act is to the effect that there is an implied condition that goods shall correspond with the description and this is not the case here. It follows that there was a breach of the condition of hire as described by the salesman.
In the case of Grant v Australian Knitting Mills, a plaintiff contracted dermatitis following wearing an underwear garment he had bought from the defendants who were a manufacturing company. The defendants were held liable for their defective product which contained an excess of sulphite. Similarly, it would fool that the defendant company Perfect Plant Hire Ltd is liable in damages and possible rescission by Nancy in view of the remedies at common law and the Misrepresentation Act of 1967. Nancy is therefore advised to pursue the action.
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