Felthouse v. Bindley (1862) 11 CBNS 869, 142 ER 1037, Court of Common Pleas

The plaintiff claimed that he had purchased a horse from his nephew. After some negotiations, the plaintiff wrote to his nephew on 2 January 1862 in which he offered to buy the horse for £30 15s. He concluded his letter by stating: ‘If I hear no more about him, I consider the horse mine at £30 15s’. The nephew did not reply to this letter. On 25 February the defendant auctioneer, who had been instructed by the nephew to sell his farming stock, sold the stock at auction. The nephew told the defendant that the horse had already been sold but the auctioneer mistakenly included it in the sale and sold it to a third party. The auctioneer acknowledged his mistake in a letter to the plaintiff written on 26 February and the nephew also wrote to the plaintiff on 27 February in which he acknowledged their ‘previous arrangement’ in relation to the sale of the horse. The plaintiff brought an action for the conversion of the horse. The claim failed on the ground that the plaintiff could not show that he had acquired title to the horse before it was sold by the auctioneer on 25 February.

Willes J [set out the facts and continued]

It is clear that there was no complete bargain on the 2nd of January: and it is also clear that the uncle had no right to impose upon the nephew a sale of his horse for £30 15s. unless he chose to comply with the condition of writing to repudiate the offer. The nephew might, no doubt, have bound his uncle to the bargain by writing to him: the uncle might also have retracted his offer at any time before acceptance. It stood an open offer: and so things remained until the 25th of February, when the nephew was about to sell his farming stock by auction. The horse in question being catalogued with the rest of the stock, the auctioneer (the defendant) was told that it was already sold. It is clear, therefore, that the nephew in his own mind intended his uncle to have the horse at the price which he (the uncle) had named—£30 15s: but he had not communicated such his intention to his uncle, or done anything to bind himself. Nothing, therefore, had been done to vest the property in the horse in the plaintiff down to the 25th of February, when the horse was sold by the defendant.

It appears to me that, independently of the subsequent letters, there had been no bargain to pass the property in the horse to the plaintiff, and therefore that he had no right to complain of the sale. Then, what is the effect of the subsequent correspondence? The letter of the auctioneer amounts to nothing. The more important letter is that of the nephew, of the 27th of February, which is relied on as showing that he intended to accept and did accept the terms offered by his uncle’s letter of the 2nd of January. That letter, however, may be treated either as an acceptance then for the first time made by him, or as a memorandum of a bargain complete before the 25th of February, sufficient within the statute of frauds. It seems to me that the former is the more likely construction: and, if so, it is clear that the plaintiff cannot recover. But, assuming that there had been a complete parol bargain before the 25th of February, and that the letter of the 27th was a mere expression of the terms of that prior bargain, and not a bargain then for the first time concluded, it would be directly contrary to the decision of the Court of Exchequer in Stockdale v. Dunlop, 6 M & W 224, to hold that that acceptance had relation back to the previous offer so as to bind third persons in respect of a dealing with the property by them in the interim.

Keating J

I am of the same opinion. Had the question arisen as between the uncle and the nephew, there would probably have been some difficulty. But, as between the uncle and the auctioneer, the only question we have to consider is whether the horse was the property of the plaintiff at the time of the sale on the 25th of February. It seems to me that nothing had been done at that time to pass the property out of the nephew and vest it in the plaintiff. A proposal had been made, but there had before that day been no acceptance binding the nephew.

Byles J delivered a short judgment in which he expressed his agreement with Willes J.