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Lancashire and Yorkshire Rail Co, and Others V MacNicol
Lancashire and Yorkshire Rail Co, and Others V MacNicol
Document (1)
1. Lancashire and Yorkshire Rail Co, and others v MacNicoll [1918-19] All ER Rep 537, [1918-19] All ER Rep
537
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Search Terms: Lancashire & Yorkshire RY v MacNicoll
Search Type: Natural Language
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Lancashire and Yorkshire Rly Co, London and North Western Rly Co and Graeser Ltd v MacNicoll
Overview | (1918) 88 LJKB 601, | [1918-19] All ER Rep 537, | 62 Sol Jo 365, | 118 LT 596, | 34
TLR 280
Lancashire and Yorkshire Rail Co, and others v MacNicoll [1918-19] All ER
Rep 537
Also reported 88 LJKB 601; 118 LT 596; 34 TLR 280; the railway company were negligent was not
62 Sol Jo 365 sufficient to create an estoppel, since, for that
purpose, there must be proved such conduct on their
KING'S BENCH DIVISION part as would induce a reasonable person to act on it,
AT LAWRENCE, ATKIN JJ ie, in this case to convert the goods; this the
defendant had failed to prove; and, therefore, the
19, 20 FEBRUARY 1918
plaintiffs were entitled to succeed.
But he has failed to convince me. He cited several station office and sign a book - which he did - for twenty-
authorities which I do not in the least question. It is in five casks of creosote, was such a representation as
the application of those authorities to this case that he would induce a reasonably careful man taking delivery
fails. He says that the cause - the proximate or real to take away and convert to his own use the drums of
cause - of what the defendant did in taking this carbolic carbolic acid.
acid to his farm and using it was the conduct of the
railway company's servants at Abergelo station. What I ask myself whether that can be so, and how the
was that conduct? I agree with him when he says that learned judge came to the conclusion, as he did, that
the conduct of the railway company was negligent. No there was no negligence. He said there was no
doubt, it was negligent, but that is not sufficient in order negligence on the part of MacNicoll or his servants. I
to create an estoppel. It must be such conduct on their should have found great difficulty in dealing with that if I
part - such a representation intended to be acted upon - thought that he had directed himself properly to the
as would induce a reasonable person - a reasonable question what these persons had to do in taking
consignee - to act upon it and to convert the goods. delivery. He seems to have thought that he had merely
to see whether there was intentional wrongdoing. On
I do not think he has established in any degree that the facts I should have thought that he was perfectly
there was any such representation here. Both parties justified in finding there was no intentional wrongdoing.
crave in aid or in excuse the existence of the war. No That was not the case at all. He had to ask himself
doubt, the war did operate more or less on both of them. whether the defendant's servants were induced by a
The goods arrived at Abergele with a railway representation of the railway company which they could
consignment note, saying that there were twenty-five as reasonable men act upon to convert this carbolic acid
casks of creosote, numbered I to 25, and that they were to their own use. I do not think he put that question to
tone in weight. The truck number was also given. I can himself. Had he done so I am sure the learned judge
find no evidence of any examination to see whether the would never have held as he did that there was no
truck ever did bear the number appearing on the railway conversion. When a man goes to a railway station to
invoice. I expect it did not, and for this reason. When I take delivery of goods he is not entitled to say: "I will
look at the railway invoice of the carbolic acid, I see that take anything you like to point out to me. I will ignore the
it was loaded into three trucks of different numbers, and fact that 1 have an invoice for these particular goods
the admission made at the hearing was that this truck from my vendors." Here the consignor had sent twenty-
which came to Abergele had been wrongfully labelled. five casks of creosote, 1,000 gallons, and he charged
Therefore, I suppose what happened was this, that for the twenty-five casks on his invoice, and they were
instead of the label being put upon one of these three numbered one to twenty-five. No sane person with the
trucks to go to Ruabon, as it should have been, it was knowledge that this was what the consignor of the
labelled to Abergele, so that one of the three carbolic goods had told him would have gone to that truck and
acid trucks with fourteen drums of carbolic acid arrived said: "There are the twenty-five casks of creosote
at Abergele along with a railway invoice for twenty-five numbered one to twenty-five," when he could see,
casks of creosote. The clerk who was there, instead of staring him in the face, fourteen iron drums of a very
looking to see whether the truck corresponded with the much greater content. I think it is impossible for any
invoice, just issued the advice note, "twenty-five casks, reasonable man to say that the Barter was induced to
such-and-such a truck", the same number on his invoice believe that, by what the clerk or the porter said -
note - "Knottingley depot, waggon number, 36,425, namely: "There they are in that truck down there." It is
number of packages twenty-five, species of goods, not the conduct of a reasonable man induced by the
casks, weight 5 tons, to pay Mr MacNicoll." representation made to him. It is said that both parties
[*540] were perfectly careless in the matter. But that will not
do. A person must act reasonably on a representation
The carter came with that and presented it. He was told: which is made and intended to be acted upon.
"There is the truck." He went down and examined the Consequently, I take it that when these drums of
truck, and found, not twenty-five casks, but fourteen iron carbolic acid were taken away and used at the farm it
drums. Whereas the casks were 40-gallon casks, the was conversion for which the defendant is liable, and in
drums were about 90-gallon iron drums. The defendant respect of which he cannot say the railway company are
has to argue that the representation contained in that estopped from suing.
advice note, along with the representation: "There is
your truck," and the invitation to the carter to go into the That leaves the simple question of the amount of
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Lancashire and Yorkshire Rail Co, and others v MacNicoll [1918-19] All ER Rep 537, [1918-19] All ER Rep 537
damages, which does not appear to be in dispute; it is represented to me that they were, and I acted upon that
82 pounds 7s 2d. The only thing to be decided upon that representation. Therefore, you are estopped from
is what arises upon the counterclaim. I think the claiming in conversion against me." It is hardly
plaintiffs are entitled to 2 pounds 10s by way of necessary to repeat what has been said so often - that
counterclaim to cover the cost of a wasted journey and estoppel is not a cause of action, but is merely one of
the reasonable expenses he would have been put to in the rules of evidence. The estoppel contended for here
communicating with the consignor. I think the appeal is based primarily upon the advice note which was sent
must be allowed and judgment entered for the plaintiffs by the railway company to the defendant in the
for the amount claimed. circumstances with which my Lord has dealt. It is a
consignment note dated May 2. It says:
"The undermentioned goods consigned to you have
ATKIN J: arrived at the station. Please give instructions for their
immediate removal as they remain here to your order and
I agree. The first question that arises is whether or not are now held by the company as warehousemen at
there was a conversion by the defendant. In dealing with owner's sole risk and subject to the company's charges.
that question the learned county court judge seems to When you send for the goods please send this card duly
have assumed that it was necessary to show something endorsed."
in the nature of what I might call a mens rea on the part Underneath there is this: "From Knottingley, number of
of the defendant. He says you must have intention. He waggon, twenty-five casks weight 5 tons, particulars to
says there may be innocent conversion, but then he follow, to pay." In the first place it is said that that, is a
goes on to deal with the facts in this case and he says: representation that the goods which arrived in the
"A man cannot be made liable in tort unless he is waggon were the defendant's goods, and that, when he
negligent," and that, in his opinion, the defendant was went to the station by his servants he believed that, in
not guilty of negligence. It appears to me plain that consequence of that representation, the goods which
dealing with goods in a manner inconsistent with the were in the waggon were the twenty-five casks referred
right of the true owner amounts to a conversion, to in the advice note. It appears to me that the
providing it is also established that there is an intention defendant fails to establish facts which create an
on the part of the defendant in so estoppel in his, favour. The propositions as to estoppel
[*541] have been read, but it is necessary to refer o them
again. They were laid down in Ca" v London and North-
doing to deny the owner's right or to assert a right which Western Rail Co (1) So far as I am aware, no objection
is inconsistent with the owner's right: But that intention is has ever been made to the statement of them by
conclusively proved if the defendant has taken the BRETT, J, in that case. He said (LR 10 CP at p 317):
goods as his own or used the goods as his own. Here "Another recognised proposition seems to be, that, if a
there is no question but that the defendant did use the man either in express terms or by conduct, makes a
goods as his own. He poured them into his own tank or representation to another of the existence of a certain
state of facts which he intends to be acted upon in a
vat. The cases where the intention of the defendant
certain way, and it be acted upon in that way, in the belief
becomes material are cases where the goods have
of the existence of such a state of facts, to the damage of
come into the possession of somebody who acts as an him who so believes and acts, the first is estopped from
agent or bailee, and where the dealing with the goods is denying the existence of such a state of facts."
a transfer of the custody from himself to somebody else, The second proposition is merely a representation by
and where it may well be that the intention is not to conduct in the same way.
exercise any right inconsistent with the right of the true
owner. In those cases the question of intention becomes In my opinion it is impossible to suppose that the
material. In a case where a man deals with goods as his company by representing wrongfully that the twenty-five
own, no such question can arise. casks had arrived could have intended the person to
whom that representation was made to act upon the
So far, I think it is plain that the defendant in this case belief that fourteen iron drums were twenty-five casks. It
did convert the goods. But then it is said as against the is a consequence which it seems to me is neither the
railway company who are suing him for conversion: "It natural nor the probable result of the representation
may be true that I have converted these goods as made. In the cases where an estoppel has been found
against the true owner, but you cannot be heard to say to exist, it will be found that the representation is made
that these goods were not my goods because you have by a person who has a particular fact within his
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Lancashire and Yorkshire Rail Co, and others v MacNicoll [1918-19] All ER Rep 537, [1918-19] All ER Rep 537
knowledge, which it would not be natural to expect the These men brought the advice note, and they were then
person to whom the representation is made to verify. In shown the waggon. They themselves apparently could
this case the statement by the railway company in the not unload. They asked the porter to have the waggon
advice note is: "I have twenty-five casks of yours; come taken to a side warehouse and there they left it. A
and look at them, and fetch them." If in fact the goods period of twenty-four hours elapsed; at any rate it was
are not what they are stated to be, it is obvious that the not until the next day that they went and unloaded the
man who waggon and it is impossible to say that two men, or four,
[*542] or any number of men could unload a waggon and take
out six large drums without knowing that the total
receives the advice note is in a position at once to form number of drums altogether in that waggon was
his own judgment about his own goods, and to decide fourteen. But it does not stop there. Being mere hauliers
whether they are his or not. Consequently it does not they may be taken not to have known or not to have
appear to me that it can be suggested that the railway cared very much as to the property in these goods. But
company intended the defendant to act upon the belief they took six of these drums to Mr MacNicholl's own
that the iron drums were in fact twenty-five wooden premises, and he actually has them. He knows and
casks. must have known that these six drums were not part of
the consignment of casks. First of all they were drums
The other proposition as to estoppel is the proposition and not casks; they were iron, not wood; they held
which is stated later in the judgment of BRETT, J. It is to eighty to ninety gallons instead of forty gallons; and they
this effect (ibid at p 318): weighed half a ton instead of about a quarter of a ton. In
"There is yet another proposition as to estoppel. If in the those circumstances it seems to me impossible to say
transaction itself which is in dispute, one has led another that the representation made by the railway company in
into the belief of a certain state of facts by conduct of the advice note was calculated to mislead the person
culpable negligence calculated to have that result, and who necessarily must see the goods before he acts
such culpable negligence has been the proximate cause upon the advice note. That, I think, is the second point
of lending and has led the other to act by mistake upon
of the case. Nor is the case to my mind advanced by
such belief, to his prejudice, the second cannot be heard
relying upon any representation by the porter. The
afterwards, as against the first, to show that the state of
facts referred to did not exist."
representation by the porter is a representation in
It will be observed that in the actual statement of the reference to the advice note, and must be taken with it,
formula or proposition the reference to intention is not and it appears to me that the same considerations apply
expressed. But the proposition is extended by the same to a representation by the porter. If he made any
learned judge when he was Master of the Rolls and different representation I have the gravest doubt
LORD ESHER in Seton, Laing & Co v Lafone (2). LORD whether it can be properly suggested that a railway
ESHER said (19 QBD at p 72): porter, in the position in which this
"It is not stated to be necessary by the terms of the
[*543]
proposition to which I have referred, and I do not think it
is necessary, that the person making the statement man was, had any authority to bind his company by a
should have intended the person to whom he made the representation so as to create an estoppel against them.
statement to act in any particular way upon it."
But then he goes on to state chat the questions are. My Lord reminds me that it was suggested that some
First they are negligence, and then he says: further point arose in favour of the defendant to support
"The next question is whether the statement was the estoppel by reason of the fact that the defendant's
calculated to make him believe in a certain state of facts, servant or haulier signed a book as having received
and the consequence do what he did upon the strength of twenty-five casks. In my opinion, it is impossible that the
that belief ...."
signing of floe book should carry the case any further
Applying that test to this case it seems to me impossible than the actual advice note. Therefore, it appears to me
to suppose that the statement that twenty-five casks there was no estoppel. If there was no estoppel I think
have arrived is calculated to make the owner believe, the only question that could arise would be whether or
when he has seen the actual goods, that the goods not the plaintiffs or one of them could recover the full
which have arrived, and which are not twenty-five casks, value of the goods. As far as that is concerned, I think it
are twenty-five casks. Here it is plain that the defendant is quite plain that a bailee who has the right to the goods
first of all sent up hauliers with the advice note to claim is entitled to claim in detinue and to recover the full
delivery of the twenty-five casks under the advice note. value of the goods. The question of payment is a
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Lancashire and Yorkshire Rail Co, and others v MacNicoll [1918-19] All ER Rep 537, [1918-19] All ER Rep 537
question between himself and his bailor. That is claim with costs here and below, and that the judgment
immaterial so far as the defendant is concerned. It in the counterclaim must be reduced to the sum
appears to me to be possible that an estoppel mentioned by my Lord - namely, 2 pounds 10s with
insufficient to enable the defendant to say as against the costs.
plaintiff, "I have not converted," may yet operate so as
to enable the defendant to say as against the plaintiff: Appeal allowed.
"At any rate, you are estopped from saying that the
goods are worth more than a particular sum," whatever
Reported by WV BALL, ESQ, Barrister-at-Law.
it may be. I wish to guard myself against a suggestion
that such an estoppel would not arise. But it is not
necessary to consider that point in this case, because
End of Document
there was no representation at all as to the actual value
of the goods. Therefore I think the defendant has
committed a conversion, and I am of opinion that the
true measure of damages, whether it be considered as
a claim by a bailer - the true owner - or whether it be
considered as a claim by the bailee, the railway
company, is the true value of the goods, which is always
the prima facie measure of damages in a clairn for
conversion. As at present advised I should be inclined to
think that the receipt by the true owner of a sum
representing the value of the goods to him from the
tailless on a contract of carriage would not prevent the
bailor from recovering the true value. He might have to
account for it to the bailers who had already paid it, but I
think it unnecessary to consider that because it is plain
that the bailees in any case would be entitled to recover
the amount.