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Published online by Cambridge University Press: 16 January 2009
The case of Bowmakers, Ltd. v. Barnet Instruments, Ltd. deserves perhaps more attention than it has received. The judgment, delivered by du Parcq L.J., is per curiam. and of a strong Court of Appeal. It is a broad and easy-flowing judgment which cites few authorities and states a general rule in general terms without enumerating the exceptions to which it adverts. It accordingly gives rise to not a few difficulties. But it may well be correct on the main points which it appears to decide; and it may prove to be generally helpful in principle, upon the difficult topic of property passing under illegal contracts, if the principle involved can be extracted and stated with particularity.
The facts, as determined in the Court of Appeal, are as follows:—
The defendants (appellants), Barnet Instruments, Ltd., were minded to purchase from a Mr. Smith some machine tools; but instead of the defendants purchasing directly from him, in order to facilitate the financing of the transaction, it was arranged, as is customary, that Bowmakers, Ltd., the plaintiffs, should buy the machines from Smith and let them, upon normal hire purchase terms, to the defendants. Accordingly the plaintiffs, having bought from Smith, entered into three separate hire purchase agreements with the defendants: Nos. 1 and 2 of March and April, 1944, concerned new machine tools, No. 3 of June, 1944, dealt solely with a machine tool which was ‘used’. The defendants ‘after making some, but by no means all the agreed payments sold for their own advantage and converted to their use, all the machines except that one which was the subject of agreement 2, and this latter they also converted to their own use by refusing to deliver it up to the plaintiffs on demand’.
1 [1945] K.B. 65; 114 L.J.K.B. 41. In the Law Journal Reports the defendant is named Barnett Instruments, Ltd.
2 Scott and du Parcq L.JJ., and Uthwatt J.
3 [1945] K.B. at p. 66.
4 [1945] K.B. at p. 69. See also at p. 68: ‘It is right to add that neither the plaintiffs nor the defendants had any knowledge of the order, so that, if they erred, their error was involuntary, but this, the defendants say, is immaterial. The defendants obtained possession of the machinery as the result of a bargain to procure the commission of a criminal offence, and hence, it was said, they and the plaintiffs, however venial their offence, had been engaged in nothing less than a criminal conspiracy’.
5 [1945] K.B. at p. 70.
6 Scarfe v. Morgan (1838) 4 M. & W. 270, 281, per Parke B.; Taylor v. Chester (1869) L.R. 4 Q.B. 309—both of which cases are cited in the judgment.
7 [1945] K.B., pp. 69–70.
8 (1869) L.R. 4 Q.B. 309.
9 (1869) L.R. 4 Q.B. 309.
10 [1945] K.B. at p. 71—my italics.
11 (1869) L.R. 4 Q.B. 309, 315.
12 [1945] K.B. at p. 71.
13 Perhaps a similar point arises in case of bailments which are not binding upon infants. The courts distinguish with much acuity situations where the bailor brings, and is entitled to bring, an independent action in tort from those in which he is driven to rely upon the contract and so fails. See the instructive case of Ballett v. Mingay [1943] K.B. 281. Is a similar distinction to be imported into illegal bailments?
14 Pearce v. Brooks (1866) L.R. 1 Ex. 213.
14a (1869) L.R. 4 Q.B. 309.
15 See, e.g., the classical statement by Scrutton, L.J. in Folkes v. King [1923] 1 K.B. 282, pp. 306–8.Google Scholar
16 [1945] K.B. at p. 70.
17 (1866) L.R. 1 Ex. 213.
18 Note that perhaps Martin B. might have accepted this view. See Pearce v. Brooks (1866) 1 Ex. 213, 217. But he was speaking extempore during argument, and the ground he suggests is queer indeed.
19 The court also noticed (p. 72) ‘one obvious exception, namely, that class of cases in which the goods claimed are of such a kind that it would be unlawful to deal in them at all, as for example, obscene books’. Perhaps this exception would prevent the fence recovering from the burglar upon his failure to meet an instalment the value of housebreaking tools bailed to him upon hire purchase terms; which value, but for this exception, would have been recoverable upon the principles of this case.
20 (1866) L.R. 1 Ex. 213.
21 (1869) L.R. 4 Q.B. 309.
22 In C.P. (1839) 5 Bing.N.C. 666; in Exch.Ch. (1840) 6 Bing.N.C. 324.
23 One of the more recent decisions is Alexander v. Rayson [1936] 1 K.B. 169 (C.A.) which reviews most of the relevant cases.
24 Per Parke B. (1840) 6 Bing.N.C. 324, 329. In the Common Pleas, Tindal C.J. (5 Bing.N.C. 666, 677–8) seems to suggest that ejectment might have succeeded.
25 Pp. 247–8.
26 [1936] 1 K.B. 169, pp. 186–7.
27 Delaney v. T. P. Smith, Ltd. [1946] K.B. 393.
28 Law of Property Act. 1925, s. 1 (2).
29 (1869) L.R. 4 Q.B. 309.
30 Where a lease under seal has not been executed and the tenant holds under an agreement in writing for a lease it seems even more evident that the tenant must be assimilated to the bailee.
31 See, e.g., Woodfall, Landlord and Tenant (24th ed.), pp. 253, 595.
32 See, e.g., Pollock on Contract (12th ed.), pp. 335–6.
33 (1869) L.R. 4 Q.B. 309.