Detinue
Cases
Hanley v. ICC Finance Ltd.
[1995] IEHC 5; [1996] 1 ILRM 463 (24th February, 1995)
KINLEN J:
This matter had been dealt with by His Honour Judge Lynch on the 12 November, 1993.
The Plaintiff is a senior agricultural specialist and is working at the premises of the American Embassy at Ballsbridge, Dublin. In May, 1992 he purchased a Volvo 440 motor vehicle,registration number 91 D 20565, from Huet Motors (Dublin) Limited for the price of £10,250. He arranged his own financing and as far as Huet Motors (Dublin) Limited were concerned it was in fact a cash transaction.
A receiver was appointed to Huet Motors (Dublin) Limited on the 29 July, 1992 and a liquidator was appointed to that company on the 17 August, 1992.
The Plaintiff, on the date of purchase was the only person in possession of the vehicle, registered it in his name and comprehensively insured it in his own name with the New PMPA Insurance Company. On purchasing the car he registered his address at that time on the registration book. However, on retaxing the car in July/August, 1992, he was in the process of moving house and in the circumstances he requested that the book be returned to him c/o the American Embassy, as he feared it might be lost. The Embassy address was entered on the registration book.
Early on the morning of Friday, the 27 August, 1993, he received a telephone call at the Embassy of the United States of America, from a Garda Andy Keegan, of Donnybrook Garda Station, who advised him that he, the guard, had been informed by the Defendant that it was their intention to repossess the said vehicle from where it was parked, on the corner of Eglington Road and Clyde Road, adjacent to the Embassy. The Plaintiff looked out the window and found that the car had already been removed. He had no knowledge whatsoever that the Defendant claimed ownership of the vehicle and during the fifteen months when the vehicle was in his possession at no time did the Defendant, its servants or agents or the receiver, or liquidator of Huet Motors (Dublin) Limited contact him in relation to the motor vehicle.
The Circuit Court granted an interim injunction in the particular circumstances of this case to restrain the Defendant from disposing of the vehicle. The Plaintiff says that the repossession from adjacent to his place of work, was in a manner which brought it to the attention of his superiors, and that he was anxious to be in a position to show his workmates and his superiors that he had the same car. The Defendant made no effort to contact the Plaintiff. Prior to his purchasing it, it was openly for sale at the premises of Huet Motors (Dublin) Limited. That company was registered as the previous owners but the Defendant made no effort at that time to assert their ownership of the vehicle or to prohibit the sale of same by the said Huet Motors (Dublin) Limited. The registration book and the certificate of motor insurance were produced to the Court. The Defendant, by a letter of the 27 August, 1993, states:-
“The car in question is subject to a lease agreement in favour of ICC Finance Limited and in accordance with the terms thereof the title vests in ICC Finance Limited. Accordingly your client is not entitled to the return of the vehicle. The vendor to him, Huet Motors (Dublin) Limited, had no authority or title to sell”.
There is also a receipt dated the 22 May, 1992 stating that the sum of £10,250 was received from Mr Michael Hanley by Huet Motors. The Plaintiff’s case is based on two Affidavits by the Plaintiff, with exhibits and the Defendant’s case is dependant on two Affidavits sworn by their credit control manager, Edward Kingston, together with exhibits.
It would appear that ICC Finance Limited purchased the Volvo 440 motor vehicle from Huet Motors (Dublin) Limited for the sum of £12,260, inclusive of VAT on the 23 May, 1991. It was then leased for a fixed three month period from the 24 May, 1991 to Tipperary Rent-a-Car Limited. That purchase and lease were entered into with a further agreement between the ICC Finance and Huet Motors (Dublin) Limited that at the end of the aforesaid three month lease period, Huet Motors (Dublin) Limited would repurchase the vehicle at an agreed price of £9,305.78 exclusive of VAT. This arrangement was one of seventeen similar company arrangements in respect of other vehicles which ICC Finance Limited and Huet Motors (Dublin) Limited entered into in or about the month of May, 1991. These lease/rental agreements were registered with the Irish Credit Bureau.
At the end of the three month leasing period with Tipperary Rent-a-Car Limited, the vehicle was not bought back as agreed by Huet Motors (Dublin) Limited. Instead a new contract was entered into between ICC Finance Limited and another company by the name of Fleetlink Limited, which was an associate company of, and wholly owned by, Huet Motors (Dublin) Limited. The agreement with Fleetlink Limited was for a lease of the aforesaid vehicle for a fixed period of twelve months from the 28 January, 1992 and again there was an agreement with Huet Motors (Dublin) Limited that it would buy back the aforesaid vehicle at a fixed price of £6,665.20 exclusive of VAT at the end of the lease period.
The tax book of the vehicle was initially retained by ICC Finance. However, a Mr McCarthy, who was both a director of Huet Motors (Dublin) Limited and Fleetlink Limited, requested the tax book so as to tax the vehicle. The tax book was given to him for the purpose of having the vehicle taxed. Fleetlink Limited is a company which leased vehicles and hired vehicles for short periods to third parties. It was not in the business of retailing cars to the public. Huet Motors (Dublin) Limited went into liquidation and the liquidator advised the Defendant company of the names and address of the persons whom he believed were in possession of the various vehicles, the property of the Defendant company. Appropriate enquiries were made and it was discovered that the persons whose names were furnished either were not in possession of the vehicle or were not resident at the address given and supplied by the liquidator. It has been the experience of the Defendant company that where a person is notified that the Defendant company wants the vehicle in question returned because of failure to pay the rentals, or for some other breach of the agreement between the Defendant company and a lessee, invariably the vehicle is not returned and it becomes very difficult for the Defendant company to obtain possession of the vehicle. Because of this experience the Defendant company has adopted the practice of repossessing the vehicles which it owns and at the same time advising the local gardai, where the vehicle is repossessed, of such repossession. That was the practice adopted in this case. The Defendant company did not consent to Fleetlink Limited parting with possession of the said vehicles to anyone, not alone Huet Motors (Dublin) Limited, for the purpose of selling same to an innocent third party. The Defendants say they did not intend to cause any embarrassment to the Plaintiff and if in fact they did, they are prepared to write to his employers or superiors advising them of the circumstances surrounding the matter and the reason for the Defendant company repossessing the vehicle. It is accepted by the Defendant company totally, that the Plaintiff herein was, and is, an unfortunate and innocent party, and a party who acted in good faith in the purchase of the vehicle in question from Huet Motors (Dublin) Limited.
It seems clear that both parties here acted in good faith and were innocent of any wrongdoing, although the Defendant, with its experience, might be regarded as acting in a fairly cavalier manner. As a result of discovery it would appear that there was a series of post-dated cheques paid to the Defendant that were drawn on the account of Huet Motors (Dublin) Limited, and not on the account of Fleetlink Limited, during the time when the alleged lease to them was in existence. It is reasonable to assume that the Defendant knew that the vehicle was in the possession of Huet Motors (Dublin) Limited or leased to them. When I said that the behaviour of the Defendant was a little cavalier, I do think that it might have checked the corporation file. The Court is satisfied that the vehicle was at all relevant times in the possession of Huet Motors (Dublin) Limited, who was a mercantile agent. It would appear that it was indulging in leasing, at least on one occasion, to a wholly owned subsidiary to provide a system of cash flow. Huet Motors (Dublin) Limited was in possession of the vehicle and in possession of the tax book. Although in fact they did not have a legal title by virtue of the provisions of Section 25 of the Sale of Goods Act, 1893 and of the Factors Acts (and particularly S 2(1) of the Factors Act, 1889), they could and did give a good title to the vehicle.
Section 25(1) of the Sale of Goods Act, 1893 provides:-
“Where a person having sold continues or is in possession of the goods . . . the delivery or transfer by that person . . . of the goods . . . under any sale, pledge or other disposition thereof to any person receiving the same in good faith and without notice of the previous sale shall have the same effect as if the person making the delivery or transfer were expressly authorised by the owner of the goods to make the sale.”
I am impressed by the reasoning of the English Court of Appeal in Worcester Works Finance Limited v Cooden Engineering Company Limited [1971] 3 ALL ER 708.
In the circumstances I am satisfied that the learned Circuit Court Judge was correct in the decision he reached. It does seem to me that the Defendant here could have retained the tax book and indeed been registered. I assume that it was not registered, because, it does not like to admit to an ultimate purchaser that there have been several registered owners.
I was referred to Staffs Motor Guarantee Limited v British Wagon Company Limited [1934] 2 KB 305; and Astley Industrial Trusts Limited v Miller (Oakes third party) [1968] ALL ER 36 and Chalmers “Sale of Goods” 18th edition at p 295. While clearly the ICC Finance was not involved in any fraudulent transaction, it was, as I have found, cavalier in its approach and it, I have no doubt, has caused much strain and distress to the Plaintiff.
While the Staffs Motor Guarantee Limited v British Wagon Company Limited would seem to support some of the Defendant’s submissions, I would prefer the reasoning in the Worcester Works Finance Limited v Cooden Engineering Company Limited, [1971] 3 ALL ER 708.
The Civil Bill claims, inter alia, mandatory injunction directing the Defendant to deliver up possession of the said motor vehicle to the Plaintiff.
The Plaintiff makes a bald claim for damages but does not indicate whether this should be negligence, conversion or detinue. Each of these would be a separate head of damage and should be specifically pleaded. What is one to make of the bald claim for “damages”? The only plea in the endorsement of claim which would help to answer this question is in paragraph 5. It sets out that the Defendant has converted the said motor vehicle to its own use. Therefore, this case should be decided on the basis of a claim for conversion, not a claim in detinue (which entitles one to the return of the vehicle and damages) or a claim in negligence.
I would wish to be addressed on what losses, if any, should be awarded as damages in a claim based on tort of conversion. I would refer to McGreggor on damages 14th ed paras 1087 — 1089 and particularly to the quotation from Denning LJ (as he then was) where he says:-
“It is an action against him because he has had the benefit of the goods. It resembles, therefore, an action for restitution rather than an action of tort. But it is unnecessary to place it in any formal category”.
The author goes on to say that:-
“Looked at from this angle the Plaintiff could always recover beyond his proved loss to the extent of the benefit conferred on the Defendant by his use of the goods but it would seem that for Denning LJ this same result could have been arrived at in an action of conversion as much as in one of detinue.”
In England detinue is gone by statute.
Detinue can include damages from the moment of detention to return of the chattel and special damages (Bullen and Leake, 10th Edition, p 317). Damages must be assessed at the date of judgment, not at the date of refusal which is a normal proof of detinue (see Rosenthal v Alderton & Sons Limited, 1946 KB 374, CV Stacks v Mikloo, [1948] 2 KB 23 and MacMahon and Binchy Law of Torts, 2nd ed p 531).
I find the proposition by Denning LJ of subsuming these two distinct torts into a claim for restitution very attractive. It seems to me that the trial Judge should look at all aspects of the case and decide the relevant periods and the nature of damage having regard to all the particular circumstances of each individual case. The matter should be clarified by statute.
Proceedings had been instituted by the Plaintiff against the Defendant for defamation. I was asked to postpone making any Order until that matter had been determined. I had indicated that I would not make any Order until I had been fully addressed on the nature of the claim mentioned in the Civil Bill and what were the appropriate parameters of such a claim which I believed to be based on conversion. I was open, of course, to argument because in fact detinue constitutes negligence. When the defamation action came to Court it was settled. And that included damages arising in the present case. The Plaintiff is in fact in possession of the vehicle. In the circumstances and by consent I am dismissing the appeal and awarding the Plaintiff costs in both Courts, with a certificate for Senior Counsel for the appeal.
King v. Walsh
[1932] I.R. 80
KENNEDY C.J. :
The claim in this action was for the return of a certain motor car, or for its value and damages for its detention. The action was tried by O’Byrne J. without a jury on the 6th February, 1931, when the learned Judge gave judgment for the defendant and dismissed the action with costs. The plaintiff has appealed against the order and judgment given for the defendant, and asks that judgment be entered for him or for a new trial.
The plaintiff, who carries on business under the well known trade name of “R. E. Grady,” deals in motor cars, and last year had for sale a second-hand Armstrong-Siddeley touring car of a recent model. The defendant, a member of the Bar, saw the car and was disposed to buy it. About the 20th of August last, the plaintiff allowed the defendant to take the car for a week’s trial. The defendant extended the trial to the 2nd September, when he returned the car. He explained the delay by illness, and no claim arises in this action on foot of detention upon that occasion. The defendant stated that he was satisfied by the trial and had decided to buy the car. The bargain was made on the 2nd September, when the price was fixed at £220, and an agreement was concluded for the purchase on the terms of:(1), the payment of a deposit of a sum of £100 on the 10th of September; (2), the payment of the balance of the price by six or twelve monthly instalments, as the defendant should decide; (3), the transaction to be carried out by means of a hire purchase agreement. The arrangement was confirmed by letter of the 2nd September, 1930, from the plaintiff to the defendant. On the same day (2nd September, 1930), the defendant signed a proposal form for carrying out the hire purchase agreement, and handed it to the plaintiff.
The proposal signed by the defendant was in the form of an application to a Guarantee Corporation to enter into an agreement on the following lines. The Corporation was to buy the car from the plaintiff at the agreed price of £220, and then to let it on hire to the defendant with an option to purchase by six monthly payments to be made by way of rental on hire.
The arrangement having been confirmed by the plaintiff by letter, and the defendant having signed the proposal form, the plaintiff immediately got the car into order, and on the 6th September the defendant went to the plaintiff’s place of business and, having promised to bring or send the deposit of £100 on the following Wednesday, the 10th September, was permitted by the plaintiff to take the car, in which, on the same day, he drove down to the County Kerry, where he stayed until Sunday, the 14th September, when he drove to Thurles and remained there for a week, and then returned to Dublin, where he arrived late on the evening of the 22nd September.
He failed to perform his promise to pay the deposit of £100 according to his agreement with the plaintiff.
On Saturday, the 13th September, the plaintiff (having ascertained the defendant’s address in Kerry) wrote him at that address a letter expressing surprise that he had not heard from the defendant with reference to the deposit
“at foot of your purchase,” which was to have been paid on the 10th September, and requesting that a cheque for the amount be sent him “without further delay.” This letter did not contain a request for the return of the car. The defendant stated in his evidence that this letter was posted on from Kerry, and he did not get it until his return to Dublin on the 22nd September. On the 15th September, the plaintiff not having received a reply to his letter of the 13th (though he could not have expected a reply on that day) instructed his solicitor, Mr. Lane Joynt, and Mr. Joynt wrote the letter of the 15th September and delivered it by hand at the defendant’s residence in Dublin. In that letter Mr. Joynt called on the defendant to return the car to the plaintiff by noon on the following day, the 16th September, or pay the £100 deposit, and to call at the same time and complete the hire purchase agreement, failing which a writ would be issued. Knowing that the defendant was in the country, the plaintiff and his solicitor must be taken to have known that the requirement of that letter could not be complied with. The defendant said he did not get this letter until his return to Dublin on the evening of the 22nd September, and the trial Judge so found as a fact and the finding has not been questioned.
The originating summons in the action was issued on the 18th September.
On the morning of the 23rd September, the defendant met the plaintiff in the street. The defendant, instead of an apologetic attitude for his default in respect of the deposit, appears to have taken up the attitude of the aggrieved party and complained of the action of the plaintiff in putting the matter in the hands of his solicitor and, without making any offer to pay the deposit or carry out his agreement, brought the car back later in the day and left it at the plaintiff’s place of business. The plaintiff alleges that it had been driven about 2,000 miles and had been somewhat damaged.
On the 24th September Mr. Joynt wrote to the defendant asking him to call at his office for the purpose of being served with the originating summons, which had been issued on the 18th September, and also invited the defendant to make a “reasonable offer of settlement for the detention and depreciation of the car.” On the 25th September the defendant saw the plaintiff and reopened the matter, handing him a post-dated cheque for the deposit which the plaintiff said he would submit to his solicitor. On the following day the cheque was returned to the defendant by Mr. Joynt in a covering letter making certain stipulations as to the basis on which the purchase would now be carried out and asking for settlement of the claim for damages for detention. No compromise was made, and the originating summons was served on the 1st of October.
The learned trial Judge, upon the evidence which I have summarised, found that the letters of the 13th and 15th of September did not reach the defendant until the night of the 22nd of September, and that the defendant returned the car to the plaintiff within about half an hour after the interview on the morning of the 23rd September, findings which have not been questioned, and he held that the defendant removed the car on the 6th of September with the consent and approval of the plaintiff, and that the defendant returned the car at the first reasonable opportunity after the plaintiff’s demand for such return reached him. So finding, he was not satisfied that the defendant had at any time wrongfully detained the car against the will of the plaintiff.
In my opinion, no tenable case has been made against the decision of the learned trial Judge. It is not open to question that when the defendant took the car on the 6th September he did so in pursuance of an agreement with the plaintiff to enter into a hire purchase contract for the ultimate acquisition of the car. He was therefore in lawful possession of the car with the consent of the plaintiff pursuant to the agreement. That lawful possession could have been ended and converted into an unjust detention by termination of the agreement by rescission or otherwise followed by a demand for a return of the car refused by the defendant. It is clear, particularly from the letters of the 2nd and 13th of September, and the oral evidence, that the date named for payment of the deposit, the 10th of September, was not made, either originally or afterwards, of the essence of the contract, nor was it stipulated that, failing payment of the deposit, the car was to be returned on that day. If there had been such a stipulation for the return of the car, I should have invited discussion of the question whether a specific demand and refusal other than the bringing of the action would have been necessary to sustain an action of detinue, a question which I reserve for some future occasion when it arises. See Hern and Stub’s Case (1). But on the facts of the present case, the possession continued lawful after the 10th of September under the still subsisting agreement, until the position should be altered by some effective, lawful act, coupled with a demand for its return: Cullen, Allen & Co. v. Barclay (2).
Assuming that the letter of the 15th of September was, in terms, such a demand as would satisfy the legal requirement for the purpose of making the possession of the car by the defendant an unlawful detention, it has been argued on the authority of the Nisi Prius ruling in Logan v.Houlditch (1), that the demand was well and sufficiently made in law by leaving the letter of the 15th of September at the Dublin residence of the defendant, notwithstanding that the plaintiff and his solicitor knew that he was not in residence there at the time but was travelling in the country. I cannot accept it that such delivery of the letter at the defendant’s flat was as a matter of law the making of a demand upon the defendant, until such date as it is shown that the letter actually reached him. If the case cited decided any such thing (I do not think it did) I should refuse to follow it, as against justice and reason.
In my opinion the originating summons was precipitatedly issued. It raised one specific cause of action which, and no other, has been fought out, and that cause of action was in my opinion unsustainable.
I regret the result because I believe that the plaintiff has a grievance for which there was legal redress if he had sought it. But this appeal must be dismissed with costs.
FITZGIBBON J. :
This action was brought to recover damages for the detention of a motor car, and O’Byrne J., who tried the action, dismissed it, because he “was not satisfied that the defendant had at any time wrongfully detained the car against the will of the plaintiff.”
There is no dispute about the facts. The plaintiff is an agent for the sale of motor cars, carrying on business under the old and well-known name of Robert E. Grady, in Dawson Street. In August, 1930, he had a secondhand Armstrong-Siddley car for sale, and the defendant entered into negotiations for purchasing it. On August 20th or 21st the defendant was permitted to take the car on a week’s free trial, and on August 29th the defendant wrote to the plaintiff from Duncannon, Co. Waterford, where he was then stayingwith the car”I have decided to buy her. I think she is all you represent her to be. I cannot, however, give you £225 for her or anything approaching that figure. However, we can discuss this when I return.” On September 2nd the defendant called at the plaintiff’s establishment, and signed a proposal for the purchase of the car for £220 on the hire purchase system, to be discharged by a deposit of £100 down and the balance by “six months extended payments.” The proposal provided for “immediate delivery.” The plaintiff overhauled the car, insured it, and put on a new tyre, the expenses of which came, with the insurance, during the”week’s free trial,” to about £10. On the 6th of September the defendant was permitted by the plaintiff to remove the car, on an undertakingwhich was not keptto bring or send the deposit of £100 on the following Wednesday, September 10th. The plaintiff, who was anxious about his deposit, called at the defendant’s Dublin address, and learned that the defendant was out of town. On Saturday, September 13th, he wrote to the address in Kerry which had been given to him as that which would find the defendant. In that letter he expressed surprise that the deposit had not been paid by the defendant in accordance with his agreement, and requested a cheque without further delay. No reply was received, and the defendant says that this letter arrived at Waterville after his departure, and that he did not get it until his return to Dublin on September 22nd. On September 15th the plaintiff consulted his solicitor, Mr. Lane Joynt, who wrote on his behalf a formal demand for the return of the car by noon on the following day, or in the alternative payment of the £100 deposit, and intimating that in the event of default a writ would be issued. As no reply was received, the summons was issued on September 18th. The defendant’s story, which O’Byrne J. believed, is that he arrived home late on September 22nd, having driven down to Waterville from Dublin on September 6th, spent the period from September 6th to September 14th at Waterville, and the period from September 14th to September 22nd in meandering home to Dublin via Adare and Thurles. On arrival at his home he says that he found the plaintiff’s letter of September 13th and the solicitor’s letter of the 15th, and that the latter contained the first intimation to him of a demand for the return of the car. On the morning of September 23rd, he met the plaintiff in the street, when he says he was on his way to call upon him. He returned the car that day. He did not pay or offer to pay the deposit. On September 24th plaintiff’s solicitor wrote suggesting that the defendant should call at his office in order to avoid the necessity for public service of the writ, and saying that any reasonable offer of settlement would be placed before the plaintiff. The defendant did not reply to this letter, but for the second time went direct to the plaintiff behind the back of his solicitor, and handed him a post-dated cheque for £110,with an offer to enter into a formal hire purchase agreement. The plaintiff declined to accept the cheque and returned it on the advice of his solicitor, Mr. Lane Joynt, who made a counter offer on behalf of his client which was not accepted, and the action proceeded.
O’Byrne J. found as facts:
“1. That during the entire of the first period (viz., from August 20th or 21st to September 2nd) the defendant had possession of the car with the consent and approval of the plaintiff.
2. That the defendant removed the car on the second occasion with the consent and approval of the plaintiff.
3. That the defendant returned the car on this occasion at the first reasonable opportunity after the plaintiff’s demand for such return reached him.”
The first two findings are based on the express statements of the plaintiff himself, and there is not a shadow of a suggestion to the contrary. The third finding is based upon the evidence of the defendant, which was believed by the learned Judge, and must be accepted by this Court as there is no evidence to contradict it.
I regard it as absolutely settled law, accepted as such for some centuries, that to sustain a claim for damages for the mere detention of a personal chattel which has come lawfully into the possession of the defendant by delivery or bailment, there must have been a demand for it by the plaintiff from the defendant, and a refusal by the defendant to deliver or to redeliver it. Cullen, Allen & Co. v. Barclay (1) in our former Court of Appeal declares this law in the most unmistakable language. “An action of detinue does not lie against a bailee of goods until demand made by the bailor, after the determination of the bailment and before action brought.” That was an action for detinue of 450 sacks. There were alternative claims in contract, but the jury found against one alleged contract, and that damages in respect of another were covered by a sum paid into Court, and the case is reported solely upon the question of the necessity for a demand before action brought. The defendant alleged that no demand had been made upon him until the writ was issued and that he then tendered the sacks to the plaintiff. Dowse B., who tried the case, refused a direction, the jury found that the defendants had detained the sacks, and Dowse B. entered judgment for the plaintiffs, reserving liberty to the defendant to move to have the verdict entered for him on the whole case, if the Court should be of opinion that he should have directed a verdict for the defendant upon the count in detinue. A conditional order was obtained, the cause shown by the plaintiffs was allowed by the Common Pleas Division, whose reasons for doing so were not forthcoming in the Court of Appeal, and the defendant appealed. The Court of Appeal, Sir Edward Sullivan M.R. and Deasy and FitzGibbon LL.JJ., by a unanimous judgment, reversed the order appealed from, and entered verdict and judgment for the defendant upon the ground stated concisely in the head note which I have quoted. “We are of opinion,” said Sir Edward Sullivan (1),”that the defendant is right in his contention, as we think that a demand of the sacks before action was necessary, and that there was no evidence of any such demand. The nature of an action of detinue, as it rests upon the authorities, is clear enough.” “When the defendant failed to perform his contract, it is difficult to see how he at once became a wrongdoer in reference to the detention of the sacks, which he never was asked to send back. Assuming that an action of contract could have been maintained for not delivering the sacks, with or without the potatoes in them, that is no reason in law for making the mere omission to send back the sacks a tortious act, when no request had ever been made for their delivery” (2).Deasy L.J. s.(3):”I do not think there is any evidence in the case of a demand of a return of the bags; and I think such a demand was necessary, in order to sustain the count in detinue.” FitzGibbon L.J. (4):”There being no count in contract, can the count in detinue be supported on the evidence? I think that this question can be tested by ascertaining the mode of pleading in the old action of detinue in cases of special bailments. If a count alleging a special bailment of goods, to be re-delivered on a certain day, would be sufficient as a count in detinue, if it merely alleged that that day had passed, and that the goods had not been redelivered on the appointed day, the count here would be a sufficient statement of the cause of action existing on the facts; but if it was formerly necessary, in such a count, further to allege that, after the day named, a demand of the goods had been made, and if without such a demand there would not have been an unjust detainer of the goods, as distinguished from a breach of the contract to return them, here also a demand was necessary. Now, from the case referred to by the Master of the Rolls, which is to be found in Brownlow’s Entries, p. 186, it appears that a demand after the time fixed by the terms of the bailment is necessary. It is apparent, I think, from that case that though a plaintiff could bring his action for breach of contract without any demand, he could not bring an action of detinue until, by a demand of, and a refusal or neglect to return, the goods, the breach of contract was turned into a wrongful detainer.”
That was no new law, nor was it a fortuitous rediscovery in 1881 of a principle which had lain concealed in Brownlow’s Entries since 1654. Not only in other compilations of Entries, but in the precedents of Declarations in Detinue sur bailment framed by the predecessors of Messrs. Bullen and Leake, Wentworth, “On Pleading,”vol. 7, p. 635, Chitty, “On Pleading” (5th edn.), vol. 2, pp. 593-4, and others, are to be found averments to the effect that: “the defendant hath not as yet delivered the said goods or any of them to the plaintiff although he was afterwards, to wit on, etc., at, etc. [venue] aforesaidrequested by the said plaintiff so to do but hath hithertowholly refused, so to do and hath detained and still doth detain,” etc.; and in the chapter on Forms of Action, (vol. i., chap. 2, § iv., p. 141), Mr. Chitty says: “In the case of a special bailment, it is proper to declare, at least in one count, on the bailment, and to lay a special request.” It was decided by Willes C.J. in Kettle v. Bromsall (1), “A declaration in detinue should state a request on the defendant by the plaintiff to deliver,” etc., and Sergeant Williams in his note to Wilbraham v. Snow (2) says (referring, it is true, to the date at which he wrote), “it is a common learning that when the goods came into the defendant’s possession by delivery or finding, the plaintiff must demand them, and the defendant refuse to deliver them up, in order to constitute a conversion.”
These obsolete technicalities need no longer be observed in pleading, but they are of vital importance, as showing what facts must be proved to sustain the action. See, for instance, the observations of Collins L.J. in Turner v.Stallibrass (3). The modern license which permits claims to be put forward in loose statements in popular language has not altered the essentials necessary to create a legal liability, or abolished the necessity of proving the facts which constitute the cause of action; and there is a note to the declaration in Chitty to which I have already referred, vol. ii., p. 595, which might have proved useful in the present case, if anyone had consulted it. “When a defendant has in his possession personal property, formerly of the plaintiff, and it be doubtful whether a contract by the defendant for the purchase thereof can be proved, it is advisable to insert a count in debt for goods sold, and another count in detinue for the chattel,in order that the plaintiff may recover on one ground or the other; and many other cases may occur, in which this joinder of action may be advisable.”
In 1911 the Court of Appeal in England, in Clayton v.Le Roy (1)an action for detinue of a watchaffirmed the law in terms indistinguishable from those employed thirty years previously by our own Court of Appeal in Cullen, Allen & Co. v. Barclay (2). Fletcher Moulton L.J. (3),after stating that the point “may seem a very technical one,” gives his reasons for holding that it is a point of substance, that there must be “some definite act or deliberate withholding as necessary preliminaries to the arising of this cause of action.” “The plaintiff must establish that at the moment of the issue of the writ he was in a position to bring an action of detinue; in other words, that there had been a wrongful denial of the plaintiff’s title to the watch” (4). “The mere fact that there was evidence pro and con on such a point would not be enough; it is necessary to find as a fact that there was a demand and refusal before the issue of the writ. If there is evidence of a demand and refusal, the tribunal may, of course, conclude that there was one in fact.” Farwell L.J., after declining to interfere with the decision on market overt which Scrutton J. had decided against the defendant, said (5):”The other question is one of considerable interest, and, upon the authorities which have been cited to us, I think that certain propositions are indisputable. Whether an action is one of detinue or trover, proof that the detention is wrongful and amounts to a conversion forms the gist of the action; there must be an element of wrong; the mere fact of possession of the article is not enough to support the action,” and then he quotes Bramwell B. in Burroughes v. Bayne (6): “‘The result is you must in all cases look to see, not whether there has been what may be called a withholding of the property, but a withholding of it in such a way as that it may be said to be a conversion to a man’s own use.'” Vaughan Williams L.J. dissented, not as to any of the “indisputable propositions,” but because he held that the facts proved amounted to a refusal by the defendant to deliver up to the plaintiff a chattel which the plaintiff had demanded of him.
I have dealt with this question at, I fear, undue length, because there appeared to be some tendency on the part of the plaintiff to challenge what appears to me to be established law of great importanceas shown by Fletcher Moulton L.J. in Clayton v. Le Roy (1)to commercial interests.
Mr. Rearden, admitting the necessity for a demand and refusal to constitute his client’s cause of action, relied upon Mr. Lane Joynt’s letter of September 15th, as a demand. I think that, notwithstanding the alternative which it offered, it was, in form, a sufficient demand. But in my opinion a demand, to be effective, must be brought to the knowledge of the person of whom it is made. I cannot accept Mr. Rearden’s contention that the demand was made when the letter containing it was dropped into the post, or when it was delivered at the defendant’s residence in Dublin when he was in Kerry. Mr. Rearden cited a case of Logan v. Houlditch (2) in support of his argument. That was a nisi prius decision of Lord Kenyon, and it must never be forgotten that such rulings are only upon the admissibility of evidence, and do not amount to decisions as to the effect to be given to the evidence when admitted. In that case a demand for the return of the chattel in respect of which detinue was brought, had been served at the house of the defendants, of whom there were two. There was a dispute whether it had in fact been actually served on one of the defendants in person. Lord Kenyon ruled that service of a written demand at the defendant’s residence was evidence of the making of a demand. He did not decide the fact, but left the evidence to the jury. I see no reason to question the ruling. In the present case, I should have been prepared to tell a jury that proof of delivery of Mr. Lane Joynt’s letter at the defendant’s residence was prima facie evidence, upon which, if uncontradicted, they could find that a demand for the return of the car had been made. But when the defendant swears, and is believed, that he was absent from home without any knowledge of, or intention to avoid, a demand for the return of the car, and that it came to his knowledge for the first time at 10 or 11 p.m. on September 22nd, I think that no demand was in fact made until then. I think that the finding of O’Byrne J. that the defendant returned the car at the first reasonable opportunity after the plaintiff’s demand for such return reached him, is borne out by the evidence, and accordingly that he was right in holding that there was no wrongful detention. There could be no wrongful detention or withholding until the defendant was aware of the demand, and, as the demand was not brought to the knowledge of the defendant until after the issue of the writ, the cause of action was not complete, for want of a refusal by the defendant, when the writ was issued.
No case was made that the defendant was keeping out of the way to avoid service of a notice demanding the return of the car, and there was no application to amend the pleadings by alleging that possession of the car had been obtained by a fraudulent pretence of intention to purchase it. The car was in fact returned and accepted by the plaintiff, and his claim is, not for use or hirage of the car, nor for damages for breach of contract to purchase the car, or to redeliver the car or pay £100 on a named day, September 10th, but solely for wrongful detention after demand made.
In my opinion the evidence does not establish a demand in fact before action brought, and negatives a refusal to redeliver before the writ was issued, and for these reasons I think that the decision of O’Byrne J. was right, and that this appeal should be dismissed.
MURNAGHAN J. :
Mr. Rearden does not dispute the proposition that, in an action of detinue, the plaintiff must prove a demand and a refusal before the issue of the writ. In Clements v.Flight (1) Pollock C.B., speaking of detention, says: “And this is the meaning ascribed to the word in Bulstrode, 308, by Haughton J., who says, that request and refusal,contradixit et adhuc contradicit, is the point in an action of detinue, but not in trover, in which conversion is the point, and request and refusal evidence only.” In conformity with this the Court of Appeal in Ireland in Cullen, Allen & Co. v. Barclay (2) laid down that, where goods were delivered to a bailee, detinue did not lie until after a demand made upon the bailee after the determination of the bailment.
The demand in the present case was made by letter, dated September 15th, addressed to the defendant’s residence in Dublin, although it was known that the defendant was absent, and was, or had been, a few days previously in Kerry. Mr. Justice O’Byrne held that the defendant complied with the demand in a reasonable time by delivering the car on September 23rd, as the letter did not in fact reach him until September 22nd.
The plaintiff’s argument is that the demand was made prior to September 18th, when the summons was issued, and that there was detention after that date. It is sought to support this contention by alleging a rule of law that a demand is sufficient if made by letter at the defendant’s residence, and for this counsel cited Logan v. Houlditch (1).I approach this case bearing in mind the words of Denman C.J. in Small v. Nairne (2). These are his words:”I am tempted to remark, for the benefit of the profession, that Espinasse’s reports, in days nearer their own time, when their want of accuracy was better known than it is now, were never quoted without doubt and hesitation; and a special reason was often given as an apology for citing that particular case. Now they are often cited as if counsel thought them of equal authority with Lord Coke’s reports.” The case, as reported, may be explained as meaning no more than this: that a letter delivered to a person’s residence must be assumed to have reached him in ordinary course unless the contrary is shown. In the present case the Judge expressly accepted the defendant’s evidence that he did not receive the demand until after the summons was issued, and that he complied with the demand within a reasonable time.
In my opinion the appeal must be dismissed.
Rayan Restaurant -v- Murphy & ors
[2009] IESC 28
Finnegan J SC
An Additional Claim
The statement of claim raises an issue additional to the matters litigated in the Circuit Court. Included at paragraph (d) in the statement of claim is the following:-
“(d) We, the plaintiffs, do hereby say and affirm that the landlord upon locking us out, continued to operate the restaurant as a going concern using all the original equipment and facilities which were our specific property and furthermore were being used without our written permission. This trading situation has prevailed up to the present juncture. The use of our assets and facilities to carry on a going concern business without any reference to us the plaintiffs by way of seeking written permission or coming to some alternative arrangement with us is blatantly illegal and represents despicable and deplorable behaviour on the part of the landlord and we are hereby seeking a remedy in law for this infringement of our rights.”
The paragraph pleads facts sufficient to ground a claim in conversion or in detinue by the company and the proprietors. No such claim was made in the Circuit Court proceedings. Before the High Court and this court a large volume of invoices gives support to the claim that much of the restaurant contents were paid for by the proprietors. In this court there was a concession that the restaurant contents are still retained and in daily use by the caretaker operating the restaurant on behalf of C.M.F. and no basis was suggested which could justify the situation. Above the restaurant premises is an apartment. Elsewhere in the papers before the court it is stated that within the apartment were personal items the property of the proprietors which are detained by the respondents. Insofar as the company makes claim in respect of the contents of the restaurant that claim is so closely related to the issue in the Circuit Court proceedings that it could and should have been raised in those proceedings but was not raised. The company had legal representation in the Circuit Court. In these circumstances I am satisfied that it is an abuse of process by the company to refrain from making the claim in those proceedings and now to seek to maintain that claim in the High Court proceedings: Henderson v Henderson [1843] Hare 100 and Carroll v Law Society of Ireland [2003] 1 IR 309. It appears from papers before the court that a conscious decision was made not to pursue a claim by the company to the contents as it was assumed that on an order being obtained putting the company back into possession of the premises the contents would be recovered. The company’s claim must accordingly be struck out. However the proprietors were not parties to the Circuit Court proceedings save and except in relation to issues between Miss Pascau and the company in respect of which D.M. was a third party. In these circumstances I am satisfied that they are entitled to maintain a personal claim in respect of the contents of the premises including the overhead apartment. No issue of res judicata or abuse of process arises in relation to this claim by the proprietors.
Conclusion
I would affirm the order of the High Court dismissing the claim of the company and of the proprietors against C.M.F. and striking out their claim against the executors insofar as the claims relate to the re-entry and determination of the lease. In addition I would strike out the company’s claim in detinue and conversion. Insofar as the proprietors claim in detinue and conversion in relation to the contents of the premises, however, they are entitled to maintain that claim in these proceedings.
The proprietors are not professionally represented in the High Court proceedings. It is advisable that they should seek to be represented. The statement of claim should be amended so that only the claim now permitted to be maintained by the proprietors is contained therein. It would seem an unnecessary complication and will give rise to additional expense if it is necessary that both C.M.F. and the executors are maintained in the action as defendants particularly as to date they have been separately represented: for that reason I would allow fourteen days within which C.M.F. and the executors should consider their position and if possible write to the proprietors informing them that they accept that either C.M.F. or the executors are the correct defendants against whom the action should be continued. Should they fail to so agree this will be a matter to which the court of trial may have regard on the issue of costs. I would give liberty to the proprietors to deliver an amended statement of claim within six weeks from the date hereof or within such further time as may be agreed or as may be allowed by order of the High Court.