Loughnan v Barry and Byrne

• Jurisdiction: Ireland
• Judgment Date: 03 June 1872
• Date: 03 June 1872
• Court: Common Pleas Division (Ireland)

Com. Pleas.

LOUGHNAN

and

BARRY AND BYRNE.

Rex v. ParkerENR 7 C. & P. 831.

Lockett's CaseENRUNK Leach, Cr. C. 94; 6 T. R. 567, note (c); 2 East, P. C. 940.

The Queen v. Naylor L. R. 1 Cr. C. R. 4.

The King v. LaraENR 6 T. R. 565.

The King v. LaraELR L. R. 4 H. L. 64.

The Reese Silver Mining Company v. SmithENR 1 H. & N. 503.

Irving v. MotleyENR 7 Bing. 543.

Noble v. AdamsENR 7 Taunt. 59.

Hill v. PerrottENR 3 Taunt. 274.

Abbotts v. Barry 5 B. Moo. 98.

Perkins v. Smith 1 Wils. 328.

Gompertz v. BartlettENR 2 E. & B. 849.

Polehill v. WalterENR 3 B. & Ad. 114.

Milne v. MarwoodENR 15 C. B. 778.

Dixon v. YatesENR 5 B. & Ad. 313.

Tooke v. HollingworthENR 5 T. R. 231.

Milwwod v. ForbesENR 4 Esp. 171, 173.

Earl of Bristol v. WilsomoreENR 1 B. & C. 514.

Stephenson v. HartENR 4 Bing. 476, 483.

Regina v. Walne 1 Cox, C. C. 647.

R. v. JacksonENR 3 Camp. 370.

Hawse v. Crowe Ry. & Moo. 414.

Moore v. BushellUNK 27 L. J. Ex. 3.

Williams v. EverettENR 14 East, 581.

Baron v. HusbandENR 4 B. & Ad. 611.

White v. GardenENR 10 C. B. 919.

Kingsford v. MerryENRENR 1 H. & N. 503; 11 Ex. 577.

Masters v. IbbersonENR 8 C. B. 100.

Childers v. WoolerENR 2 E. & E. 267.

Street v. BlayENR 2 B. & Ad. 456.

Kingsford v. MerryENRENR 11 Ex. 577; 1 H. & N. 503.

Sale of Goods — Payment by Cheque — False representation — Trover — Money had and received.

VOL. VI.] COMMON LAW SERIES. 457 LOUGHNAN v. BARRY AND BYRNE. Sale of Goods-Payment by Cheque-False representation-Trover-Money had and received. Corn. Pleas. 1872. June 3. On a sale of goods for ready money, if the purchaser give in payment his cheque which he then knows he has not funds in the bank to meet, this amounts to a false representation of a material fact, which vitiates the sale and entitles the seller to rescind the contract ; even though the purchaser at the time beÂlieved, and had reasonable ground for believing, that the cheque would be paid. AcrioN of trover and for money had and received, first tried before the LORD CHIEF Jug= of this Court at the Sittings after -Hilary Term, 1871, when a verdict was directed for the DefenÂdants which was subsequently set aside by the Court, and a new trial ordered. See the report Ir. R. 5 C. L. 538, where the facts are fully stated. The case was accordingly tried a second time before the LORD CHIEF JUSTICE at the Sittings after kichaelmas Term, 1871, when the evidence was substantially the same as at the first trial. At the close of the Defendants' case, the counsel for the DeÂfendants asked for a non-suit, or that a verdict should be directed for the Defendants ; but the CHIEF JUSTICE declined to do so, and left the following questions to the jury : 1st. When Neill gave the cheque to Loughnan, did he in effect convey to him that there were then funds in the bank to meet the amount thereof, knowing that there were not then funds to meet it? And did Mr. Loughnan take the cheque believing that there were funds in the bank to pay the same ? 2nd. At the time of giving the cheque, had Neill reasonable ground for beÂlieving, and did he in fact believe, that there would be funds in the bank to pay same when presented ? 3rd. VVhen Messrs. Barry and Byrne sold the cattle, were they aware of the circumstances under which Neill had bought the cattle, and that the cheque was passed by him by way of payment thereof, and that there were no funds for the payment thereof, except the proceeds of the cattle ? At the close of the CHIEF JUSTICE'S charge, the counsel for the 2 H 2 458 THE IRISH REPORTS. R. Corn. Pleas. Defendants called upon him to submit to the jury the following 1872. questions :- 1st. When Neill gave the cheque, did he believe it would be duly honoured on the following day ? 2nd. Did he give the cheque with any intention to defraud Loughnan? And also called upon the CHIEF JUSTICE to tell the jury that ley should find for the Defendants in case they believed that Neill had given the cheque without any intention to defraud ; and also, inasmuch as there was no privity between the Plaintiff and the Defendants, to direct a verdict for the Defendants on the count for money had and received ; and also, to tell the jury that, as the Defendants would have had no right to keep the money if deÂmanded by Neill on the 14th April, unless Neill owed them money, the Defendants were entitled to retain the moneys of their debtor on that day ; and that the Plaintiff having done no act to disaffirm the sale to Neill before the sale of the cattle, the DefendÂants were entitled to a verdict, even though the goods were obÂtained by Neill by fraud. The CHIEF JUSTICE, however, declined to accede to any of these requisitions, and the jury found in the affirmative on the three questions left to them (ante, 457). On the finding on second question, the counsel for Defendants called upon the CHIEF JUSTICE to direct a verdict for the DefendÂants, but he declined to do so ; and, on the requisition of counsel for the Plaintiff, directed a verdict for the Plaintiff; he, by his counsel, consenting that leave should be reserved for the Defendants to move to have the verdict for the Plaintiff set aside, and a non-suit or a verdict entered for the Defendants. A conditional order having been obtained pursuant to leave reserved, Monahan, Q. C., and M-Termott, for the Plaintiff, showed cause. When a man gives a cheque he makes a representation that he has funds to meet it. In Rex v. Parker (1), Tindal, C. J., (1) 7 C. & P. 831. VoL. VI.] COMMON LAW SERIES. 459 says, the count might have charged " that he pretended that he Coin, Pleas. had money at the bankers." In Lockett' s Case (1), the Judges' 1872. were unanimously of opinion that a cheque was an order for the T -OUGHNAN payment of money, and that " the nature of the order assumes BARRY & that there was cash there (at the banker's) in the name of the R _YRNE. drawer which he has taken upon him to transfer to the person in whose favour the order is made :" 2 Russ. on Crimes, 640, Note (a.) fine Queen v. Naylor (2) establishes that the offence of obtaining goods by false pretences may exist, though the person making the false representation intended to pay for the goods. The King v. Lara (3) only decides that the offence of obtaining goods by false pretences does not arise at common law on a cheque. The transaction here was a ready money one, and no authority is necessary to show, in the absence of any evidence to the contrary, that the cheque was taken as ready money. The representation being false and of a material matter, the sale was vitiated, and the right of property in the cattle did not pass: The Reese Silver MinÂing Company v. Smith (4). The doctrine of protection to an innocent party does not apply : Kingsford v. Merry, in Error (5). The party claiming the benefit of that doctrine must be a purchaser : Irving v. Motley (6). The property never passed : Noble v. Adams (7), and the Defendants got the Plaintiff's property and are liable to him : Hill v. Permit (8) ; Abbotts v. Barry (9). The Defendants were the agents of Neill, and were guilty of conversion of the Plaintiff's goods. Perkins v. Smith (10); Gompertz v. Bartlett (11); Polehill v. Walter (12); Milne v. Marivood (13); Kerr on Fraud, &c., were referred to. Hemphill, Q. C., and Martin, in support of the order absolute. There was a complete sale in the morning, the price to be paid at one o'clock ; the bargain was made then, the goods were sent to (1).Leach, Cr. C. 94; 6 T. R. 567, note (a); 2 East, P. C. 940. (2) L. R. 1 Cr. C. R. 4. (3) 6 T. It. 565. (4) L. R. 4 H. L. 64. (5) 1 & N. 503. (6) 7 Bing. 543. (7) 7 Taunt. 59. (8) 3 Taunt. 274. (9) 5 B. Moo. 98. (10) 1 Wile. 328. (11) 2 E. & B. 849. (12) 3 B. & Ad. 114. (13) 15 C. B. 778. THE HUSH REPORTS. [I. R. the railway station to abide Neill's...