Rowland V Divall

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Rowland v Divall [1923] 2 KB 500 Divall bought a motorcar and later resold it to Rowland. Rowland repaired and painted it, and sold it to Colonel Railsdon. It later appeared that the person who sold it to Divall had stolen the car from the true owner. Rowland refunded to Railsdon the price paid in that contract, and sought to recover the price paid to Divall, being £334 only. The car was in Rowland’s possession for about two months, and in the Colonel’s possession for about two months. The first instance judge held that, because the car had been in the possession of Rowland and the Colonel, there had been no ‘total failure of consideration’, and the price paid to Divall was therefore not recoverable in an action for money had and received. [There appears to have been no claim for damages, for instance for the cost of repairs and painting, either directly or as part of Rowland’s loss of bargain damages.] Bankes LJ 1)     The Sale of Goods Act 1893section12 implies a condition that the seller has ‘the right to sell', and the plaintiff can rescind unless the condition is changed to a warranty – section 53. 2)     The buyer is not here 'compelled' to treat the condition as a warranty.  Cases which suggest he is so obliged all relate to a situation where a buyer got some part of what he contracted for:  Taylor v Hare 1 B & P (NR) 260,262; Hunt v Silk 5 East 449, 452; Lawes v Purser 6 E & B 930. 3)     Here the buyer received no portion of what he contracted to get, that is, a car and title to it. User is immaterial for the purpose of deciding whether the condition must be treated as a warranty. 4)     Scrutton LJ: 1)     The Sale of Goods Act 1893 implies a condition: if broken, the contract can be rescinded

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