Felthouse v Bindley (1862) 11 CB (NS) 869, 142 ER 1037 (CP)
During negotiations for the sale of a horse, the plaintiff, Felthouse wrote to his nephew stating: ‘If I hear no more about him, I consider the horse is mine at £30 15shillings.’
The nephew did not respond, but did instruct the defendant, an auctioneer, to reserve the horse in question because it had already been sold. By mistake, the defendant auctioneer put the horse up for sale and it was sold.
The plaintiff sued the auctioneer for the conversion of the horse – A tort of which requirement mandates a claimant to demonstrate that the horse was his property at the time that it was sold).
Held: The plaintiff could not succeed as he did not have property in the horse. Even though in his mind, the nephew had acceded to the sale of the horse, it was not communicated to him. NB note that an exception to this requirement of communication is what was seen in Carlill case, where it is waived due to the nature of the offer.
WILLES J:
It is clear that the uncle had no right to impose upon the nephew a sale of his horse for £30/.15 shillings unless he chose to comply with the condition of writing to repudiate the offer. The nephew might, no doubt, have bound his uncle to the bargain by writing to him: the uncle might also have retracted his offer at any time before acceptance. It stood an open offer: and so things remained until the 25th of February, when the nephew was about to sell his farming stock by auction. The horse in question being catalogued with the rest of the stock, the auctioneer (the defendant) was told that it was already sold.
It is clear, therefore, that the nephew in his own mind intended his uncle to have the horse at the price which he (the uncle) had named, £30 15 shillings but he had not communicated such his intention to his uncle,or done anything to bind himself. Nothing, therefore, had been done to vest the property in the horse in the plaintiff down to the 25th of February, when the horse was sold by the defendant. It appears to me that, independently of the subsequent letters, there had been no bargain to pass the property in the horse to the plaintiff.
