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TMI Blog1969 (7) TMI 56X X X X Extracts X X X X X X X X Extracts X X X X ..... tated that where there is a mistake of identity there is no contract if the identity of the person with whom the agreement was intended to be made was an inducement to the other to agree, but if the agreement is of such a nature that the identity of the person is immaterial, and it might, without prejudice to the other party equally well have been made with anybody, the want of mutuality does not in the absence of fraud affect the validity of the transaction. The passage and the cases cited show that a contract will be upheld and there can be consensus provided the identity of a party is not material. Here, the defendant was concerned to buy the property and was not concerned with the identity or attributes of the vendor so long as title could be made. In Bell v. Lever Brothers Ltd. [1932] AC 161, 217, 218, 222. Lord Atkin emphasises that if mistake operates at all it operates so as to negative or nullify consent. Here, the defendant was dealing with Mr. Brewster all the time and knew he was buying from Mr. Brewster's company. They just got the name wrong. It was an immaterial misdescription. Had it been a material misdescription this would negative consent. On the question whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 242, and 245-247 ; and see Perrott (J.F.) Co. Ltd. v. Cohen [1951] 1 KB 705 and Lyle-Mellore v. A. Lewis Co. ( Westminster ) Ltd. [1956] 1 WLR 29, 35. Margaret Puxon for the defendant. The Newborne case ( supra ) shows that when the defendant discovered he was in contract with a non-existent company he had a locus poenitentiae and could resile. A company is to be distinguished from an individual. It has a special persona. It must be accurately described and its name properly expressed : see section 108 of the Companies Act, 1948. It may be a criminal offence not to use the right name. It is an abstract, a figment of the mind with nothing but its name and its constitution. The auction cases are different. The vendor must be identifiable by name or by sufficient definition. [Stamp J. The sale was by the "beneficial owner." Does that not help to define the vendor ?] Only if the name was a mere misdescription. Sowler v. Potter [1940] 1 K.B. 271 shows there may be no contract even where both parties are apparently present and in agreement. Apart from this the identity cases do not assist. The question is whether the description is sufficiently close. There i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arch 16, 1966, to the purchaser under that name. Whether the effect of that was that the conveyance was ineffective to pass the legal estate so that Mrs. Honeywood was a bare trustee for the plaintiff company, or whether the error was one which could have been remedied by evidence that the person named as purchaser was a director of the plaintiff company, it is unnecessary to decide, because it is manifest that the plaintiff company which paid the purchase price to Mrs. Honeywood became beneficial owners of the property, and entitled if necessary to call for a conveyance, and in fact on May 7, 1968, when the error was discovered, a confirmatory conveyance was executed. I should perhaps mention that May 7, 1968, was the date fixed for completion of the contract which I have to consider. Part of the land purchased from Mrs. Honeywood, that is " Shelley " was, or became, surplus to the requirements of the plaintiff company, and the Brewsters decided to sell it, and so " Shelley " was put up for sale. On or about February 12, 1968, the defendant came to the garage premises as a prospective purchaser. He first saw Mr. Brewster junior, and later in the day Mr. Brewster himself. Mr. Bre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esmere) Ltd. They so informed the plaintiff company's solicitor in a letter of April 23, 1968. The plaintiff company's solicitors on April 26, 1968, replied fully to the defendant's solicitors' letter, and in justice to them I think I should read the letter of April 26, in full. It runs as follows : "Thank you for your letter of the 23rd instant, the contents of which we note. We have taken this up with our client, who was under the impression that his company was called Goldsmith Coaches (Sicklesmere) Ltd., and he certainly instructed us that this was its name when we acted for him on the purchase of the property. On reference to his accountants who were responsible for the formation of the company, we are informed that the name of the company is in fact F. Goldsmith (Sicklesmere) Ltd. "As the conveyance executed by the vendor to the company is to a non-existent company we take the view that it was ineffective to pass a legal estate but that the then vendor having received the money from F. Goldsmith (Sicklesmere) Ltd., holds the property upon trust for that company and it appears to us that a supplemental conveyance by the original vendor should be executed. We suggest that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the surrounding circumstances, or in the light of the known facts, I find : (1) there is no limited company which in law has the name Goldsmith Coaches (Sicklesmere) Ltd., but the plaintiff company is often known as "Goldsmith Coaches" and carries on business as a bus and coach contractor, and does so at Sicklesmere; (2) the plaintiff company's registered Office is at Sicklesmere, in the very place at which it carries on the bus and coach business; (3) the plaintiff company has an agent called Brewster ; and (4) it is the beneficial owner of "Shelley." I find in addition that there is no other company having those characteristics. Applying this process, if it be permissible, I Conclude beyond peradventure that Goldsmith Coaches (Sicklesmere) Ltd. is no more nor less than an inaccurate description of the plaintiff company, F. Goldsmith (Sicklesmere) Ltd. On behalf of the defendant, Mrs. Puxon was constrained to concede, and she could not do otherwise, that the process which I have adopted to conclude that the plaintiff company is the vendor on behalf of whom Mr. Brewster contracted, is a proper process for identifying a vendor who is an individual and who had been inaccurately ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... source of great confusion and uncertainty in respect of business transactions. Would it not follow that a memorandum signed by an auctioneer on behalf of the vendor or the owner would fail to bind the owner or vendor who was in fact a limited company ? Mrs. Puxon sought to escape from that position by submitting that special considerations applied to sales by auction. I am not persuaded that there is any relevant distinction between a memorandum signed at an auction and a memorandum signed to record an oral private contract, except perhaps that at an auction neither party at the moment when the oral contract is completed, when the hammer falls, may be aware of the identity of the other party. But, assuming the distinction, I would be reluctant to hold that, if property is withdrawn from the auction and, as often happens, the auctioneer receives and accepts an offer when the auction is concluded, that this act of acceptance is a nullity unless he names with precision the limited company on whose behalf he has agreed to sell the property. Happily there has come to light an authority which assists me to come to the conclusion to which I have come in its absence. Commins v. Sco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rence to the defendant, provided only that the vendor could be identified with certainty. There was in my judgment no lack of the necessary consensus. It does not lie in the defendant's mouth to say that he paid cash under a contract with a non-existent person. The plaintiff company is entitled in my opinion to have the contract specifically performed, but the claim for rectification is in my judgment misconceived. Either the plaintiff company was a party to the contract, or there was no contract, and I cannot rectify a non-existent contract. The plaintiff company set up an alternative case of estoppel, resting on the fact that the defendant, with the permission, as I find, of Mr. Brewster, went into possession of the property. In view of my decision that it was a party to the agreement, I express no opinion whether Mr. Sunnucks was successful in getting into the saddle of that unruly horse. I will declare that the plaintiff company, although erroneously named as Goldsmith Coaches (Sicklesmere) Ltd., was a party to the agreement in the pleading mentioned, and that the said agreement ought to be specifically Performed and will make the usual order for specific performance. - ..... X X X X Extracts X X X X X X X X Extracts X X X X
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