Cundy v Lindsay (1878) 3 App Cas 459

Key point

  • Unilateral mistake as to identity renders the contract void when the contract is made in writing

Facts

  • A third-party rogue (Alfred Blenkarn) pretended to write from a reputable firm. (Blenkiron Co.) and purchased handkerchiefs by mail from C.
  • The invoice from C was addressed to Blenkiron Co. not Alfred Blenkarn.
  • The rogue then sold some handkerchiefs to D.
  • C brought a claim against D for tort of conversion.

Held (House of Lords)

  • C’s claim succeeded; the contract with the rogue was void, hence title to the handkerchiefs had not passed to D.

Lord Cairns LC

  • C did not know of the rogue and had no intention to deal with the rogue.
  • There was no consensus of mind and thus no contract.

Commentary

Tort of conversion

  • To make out a tort of conversion, it must be proven that the defendant does not have a good title to the property belonging to the claimant and infringed the title of the claimant through its use and possession of the property.

Void vs voidable

  • In mistake of identity cases, the claimant normally wants to prove that there is a mistake that renders the contract void rather than a misrepresentation that renders the contract voidable.
  • The reason is that title does not pass under a void contract but passes under a voidable contract unless it is rescinded before it reaches the hand of a bona fide purchaser.
  • In this case, had C not been able to prove that the contract was void, he would have no claim against D since C had not rescinded the contract by communicating his intention to rescind to the rogue before the handkerchiefs were sold to D, the bona fide purchaser.