He was trapped, as he said, by his losses and his only hope was to carry on in the hope of recovering his position if he could. Smith v Land and House Property Corporation (1884) LR 28 Ch D 7 is an English contract law case, concerning misrepresentation. The new arrangement so far from being unrelated to the original agreement, offered a reasonable means of mitigating the damage and loss which Mr. Mardon had sustained through Esso’s default in regard to the first contract. This adversely affected the site’s potential: because passing traffic could not see the station. In fact, this was an erroneous estimate and as a result it... Read Case Study Concurrent liability Dennis v. London Passenger Transport Board (1948) 1 All England Reports 319. It holds that the divide between a statement of opinion and fact becomes more factual if one holds himself out as having expert knowledge. Where the contract is entirely oral, the difficulties are less, but where it has been reduced to writing the common law’s mistrust of oral evidence, particularly of the parties themselves, and its reluctance to impugn the certainty of the written word, comes into conflict with the principle that the law should so far as possible give effect to the presumed intention of the parties. Escalus Properties v Dennis [1996] Esso Petroleum Co Ltd v Mardon [1976] Esso Petroleum v Customs and Excise Commissioners [1976] Esso Petroleum v Mardon [1967] EU Law Competition law Effect of European Union law Instead he drew cheques on his company’s account. It holds that the divide between a statement of opinion and fact becomes more factual if one holds himself out as having expert knowledge. It culminated in a telex he sent on 28th August, 1964: “Unless we hear soon the tenant is likely to resign and we will have difficulty in replacing this man with a tenant of the same high standard”. It would be extremely unrealistic and a denial of justice in a case like this to allow the plaintiffs, who were quite unaffected by the existence of this company, to take advantage of a piece of legalistic purism. In the other, it is by reason of a duty imposed by law. But he went too far in speaking of the “decisive test” which was strongly disapproved of by Lord Moulton in the Heilbut Symons case at page 50. submitted on behalf of Esso that Mr. Leitch and Mr. Allen did no more than to proffer a forecast of the potential of the filling station. At the trial we nearly always succeeded on collateral warranty. I think he had. He said that from 1st September, 1964, Mr. Mardon was carrying on the business. In effect, he discarded the more highly coloured parts of Mr. Mardon’s evidence on the ground that he had been living with and brooding over his grievance for a period of years which had affected the accuracy of his recollection. By September, 1964 all the capital which had gone into the business had been lost. What was the purpose of making the representation and might it influence the outcome of what was in negotiation between the parties? It is to be measured in a similar way as the loss due to a personal injury. There was, therefore, no place in their relationship for Hedley Byrne, which was solely a liability in tort. A further source of loss is the interest which has accrued on the overdraft. In a well known passage Lord Justice Bowen said: “It is often fallaciously assumed that a statement of opinion cannot involve the statement of fact. In that case his claim for damages could have been extended over many years and it might have been more considerable in respect of each year for which Esso were held liable. To the Judge’s summary, I would only add a few questions and answers by Mr. Allen in evidence: (Q) Now we know that the person who originally put forward this estimated 200,000 gallons forecast was Mr. Leitch? They recognised, too late, that the prospects of this service station had been ruined by compliance with the planning requirements of the Southport Corporation which prevented them from placing the pumps on the street frontage to Eastbank Street, and required them to be sited behind the showrooms and, therefore, largely out of sight of the heavy traffic using Bastbank Street. It was Esso who were anxious for him to stay on. But, as I have indicated in my judgment, we feel that those are matters which probably counsel would like to consider and perhaps be able to agree between themselves; but, if they cannot, they can mention it to us again with any figures they would like to put forward on it. He also suffered in health by reason of all the worry over this disaster, and was off work. It never got anywhere near the 200,000 gallons. Mr. Ross-Munro’s second point is that this principle has no application to statements made in pre-contract negotiations where they result in a contract. It was to all intents and purposes his and his wife’s money. It must be proved He submitted that, when the negotiations between two parties resulted in a contract between them, their rights and duties were governed by the law of contract and not by the law of tort. Esso Petroleum Co Ltd v Mardon [1976] QB 801 is an English contract law case, concerning misrepresentation.It holds that the divide between a statement of opinion and fact becomes more factual if one holds herself out has having This was a serious drawback and was bound adversely to affect the station’s potential. He was doing what he could to retrieve the position, not only in Ms own interest, but also in the interest of Esso. And it may be assumed that he would have made a reasonable return by way of earnings for his own work (in addition to return from his capital). What had happened was that he had been brought to the brink of bankruptcy in consequence of Esso’s false assertion as to the potential of the filling station. We are also willing to hear further argument on the assessment of damages. It is difficult to see why, in principle, a right to claim damages for negligent misrepresentation which has arisen in favour of a party to a negotiation should not survive the event of the making of a contract as the outcome of that negotiation. (Q) You would be able to command a higher rent if the throughput was 200,000 than if it was 100,000? Loss of earnings to be discussed. It was in these circumstances that Mr. Mardon attempted to carry on with the business. But such collateral contracts must from their very nature be rare”. He had lost all his capital and had incurred a large overdraft. Subject to liability, Mr. Mardon will succeed on this appeal if he can show that any one of the judge’s three conclusions is wrong, and, if he can show that conclusion (3) and either of the other two are wrong, his damages will be substantially increased. 2 New Square, Lincoln’s Inn, W.C.2). You can rely upon it as being a sound forecast of what the service station should do. Now, I would quite agree with Mr. Ross-Munro that it was not a warranty – in this sense – that it did not guarantee that the throughput would be 200,000 gallons. There will be interest to be added for a period to be discussed. Thus, even if it were right that Esso did not give a warranty to Mr. Mardon, they would be liable to him in negligence following the principle enunciated in Hedley Byrne v. Heller & Partners Ltd. (1964) Appeal Cases 465 unless a further argument advanced by Mr. Ross-Munro stood in the way. That decision was affirmed in the House of Lords in 11 Clark and Finelly 1, when Lord Campbell, giving the one speech, said (at page 44): “… Wherever there is a contract, and something to be done in the course of the employment which is the subject of that contract, if there is a breach of duty in the course of that employment, the plaintiff may recover either in tort or in contract”. The document headed “Proposal for Purchase of Existing Station or Land for Service Station Development” contains a precise calculation of the profit to be expected from this site, on the basis of an annual throughput of 200,000 gallons and the proposed rent to be charged to a tenant. There can be no doubt about it. Mr Mardon entered a tenancy agreement with Esso Petroleum in respect of a new Petrol station. So I must go further. His capital loss, therefore, totalled £6,270 plus £7,774 plus £2,716 which makes a total of £16,760 from which £690 representing assets must be subtracted leaving a negative balance of £16,070. Before considering how those damages are to be computed, it is necessary to consider the “cut off” of the incidence of damage at 1st September, 1964 as found by the Judge. They found an excellent man, Mr. Philip Lionel Mardon. The third phase followed as the trading position failed to improve. In Esso Petroleum v Mardon QB 801 Court of Appeal, Mr. Mardon came into an agreement of tenancy with Esso Petroleum subject to a new Petrol station. Esso realized this and reneg… It was a company which had no business for it had sold the goodwill of the business which it had once conducted. It was suggested that this, in some way, prevented Mr. Mardon from claiming for the loss of it. It would follow that, notwithstanding the fact that one party to the negotiations induced the other by a negligent misrepresentation to enter into the contract, the other would have no remedy unless one were available under the Misrepresentation Act, 1967. Future predictions can be warranties if they are given with the intent to induce another party to enter into a contract, and they are relied upon in the decision to enter into the contract (these are called collateral warranties). He contended that where the negotiations between the parties concerned actually culminate in a contract between them they cannot look outside that contract in the assertion of any claim by one against the other which is founded on the subject matter of the negotiations and of the contract. They knew the throughput of comparable stations. They still assessed the e.a.c. Case Brief Wiki is a FANDOM Lifestyle Community. When they purchased it they estimated that it could sell 200,000 gallons of petrol a year. this figure must have been fairly closely related to it. This representation was, unquestionably, made in good faith but, as Mr. Justice Lawson rightly found, negligently. But more often than not the Court elevated the innocent, misrepresentation into a collateral warranty: and thereby did justice – in advance of the Misrepresentation Act, 1967. The site was simply not good enough to have a throughput of more than 60,000 or 70,000 gallons. Having induced Mr. Mardon to accept, Mr. Leitch and Mr. Allen sent this telegram to their head office: “We have interviewed a Mr. Philip Lionel Mardon for tenancy and find him excellent in all respects. By that time his overdraft stood at £7,774 and his creditors stood at £2,716 as set out in Schedule 1 of the Defence and Counterclaim. In any other case there is no valid argument apart from legal technicality for the proposition that a subsequent contract vitiates a cause of action in negligence which had previously arisen in the course of negotiation. It follows that I cannot accept Mr. Ross-Munro’s propositions It seems to me that Hedley Byrne, properly understood, covers this particular proposition: If a man, who has or professes to have special knowledge or skill, makes a representation by virtue thereof to another – be it advice, information or opinion – with the intention of inducing him to enter into a contract with him, he is under a duty to use reasonable care to see that the representation is correct, and that the advice, information or opinion is reliable. It may, of course, be that the contract ultimately made either expressly of by implication shows that, once it has been entered into, the rights and liabilities of the parties are to be those and only those which have their origin in the contract itself. Although counsel for Esso submitted that the guarantee was not a warranty as it was only a future estimate, Denning states that the facts that it was made by a party with special knowledge in an attempt to induce the other party to enter into a contract, and that it was relied upon, makes it a warranty. They knew the facts. It is not suggested and has never been suggested that Mr. Mardon is to be held responsible for any part of this loss. These damages were awarded for negligent mis-statement on the Hedley Byrne principle, the learned judge having rejected Mr. Mardon’s primary submission that he was entitled to damages for breach of warranty. THE MASTER OF THE ROLLS: We have been talking about it ourselves, and we think we would like some help. : 10 Law School Mooting Tips - … All that need be said is that, if those responsible for the original estimate were right when it was made, those who later maintained that figure to Mr. Mardon could hardly have had real confidence in its accuracy then. The award rests on three basic conclusions, all of which have been challenged by Mr. Hall, Q.C., on behalf of the appellant in an able and most helpful argument. (Q) Would that have been your honest opinion at the time? His drawings from the business were only £159 because he lived on other resources. The defendant claims to have suffered damage far in excess of this sum. I would therefore allow this appeal and dismiss the cross-appeal. THE MASTER OF THE ROLLS: The upshot of it all is that Mr. Mardon has succeeded on all the points of principle which were argued in this court. Within the first year of operation it was apparent that the sales of petrol at the Eastbank Service Station were far below the e.a.c. Esso Petroleum Co Ltd v Mardon [1976] EWCA Civ 4 is an English contract law case, concerning misrepresentation. It is no concern of Esso where it came from, c.f. While not directly calculated on the e.a.c. On 7th March, 1967 he gave up the site. He was given no bargain that the throughput would amount to 200,000 gallons a year. It holds that the divide between a statement of opinion and fact becomes more factual if one holds himself out as Esso realized this and renegotiated the contract, but even that did not properly assess how much could be sold. As Cheshire & Fifoot point out (8th Ed pp 112 et seq) where the party making the representation has a special knowledge or skill, the inference that the parties intended it to have contractual effect will more readily be drawn. The claim for loss of profits is, in my opinion, virtually incapable of proof, and I will not deal with that. But, nevertheless, it was a forecast made by a party – Esso – who had special knowledge and skill. Now Mr. Leitch had had forty years’ experience in the petrol trade. and Besides that experience, there have been many cases since I have sat in this Court where we have readily held a representation – which induces a person to enter into a contract – to be a warranty sounding in damages. The first is the idea of a "collateral warranty". I summarised them in Dick Bently Productions v. Harold Smith Motors (1965) 1 Weekly Law Reports at page 627, when I said:”... “Looking at the cases once more, as we have so often done, it seems to me that if a representation is made in the course of dealings for a contract for the very purpose of inducing the other party to act on it, and actually inducing him to act upon it, by entering into the contract, that is prima facie ground for inferring that it was intended as a warranty. After a considerable conflict of judicial opinion in Australia, the Privy Council decided finally that the representation that “the land which was the subject matter of the agreement had a carrying capacity of two thousand sheep if only one team was employed in the agricultural work of the said land” was not to be taken as a warranty. Now for the measure of damages. For this they are liable in damages. They made the representation – they forecast a throughput of 200,000 gallons – intending to induce Mr. Mardon to enter into a tenancy on the faith of it. So the claim is put in two ways: First, that the representation was a collateral warranty. IN THE SUPREME COURT OF JUDICATURE They made a careful forecast of the “estimated annual consumption” of petrol. The learned judge’s reasons for rejecting Mr, Marlon’s contention that this was a warranty are summarised in this passage in his judgment: “I think the authorities indicate conclusively that to constitute a warranty a statement firstly must be intended on the part of the maker to constitute a promise which can be described as a warranty or, putting it into common language, a statement by which the maker says ‘I guarantee that this will happen’. Another argument on behalf of Esso in relation to damages was that it was not Mr. Mardon’s money that had been brought into the venture and lost. Mr. Mardon’s first obligation was to mitigate his damage thereafter. (Q) Would somebody have checked Mr. Leitch’s figures before they reached you? But they never found him one. It would take him some time to do this. In my judgment, these tests are no more than applied common sense. Esso Petroleum Co Ltd v Mordon 1976 Mr Mardon entered a tenancy agreement with Esso Petroleum in respect of a new Petrol station. Esso Petroleum Co ltd v Mardon QB 801 Facts: Mardon was buying a petrol station from Esso. Similarly, where statements of future fact or forecasts are under consideration, it will require much more cogent evidence to justify the conclusion that such statements were intended to be contractual in character. In these circumstances I think that Mr. Mardon has established the warrantly alleged in paragraph 6 of the Defence and Counterclaim and is entitled to damages for breach of contract. took his stand in tis way. Thus Mr. Mardon is entitled in my view to damages for breach of warranty or for negligent misrepresentation. He consulted solicitors who wrote on his behalf. The future is necessarily problematical and can only be a rough-and-ready estimate. This conclusion in this respect is a fallacious one and has its origin in an erroneous view of what took place between the parties in September 1964. As against these, I took a different view in McInerney v. Lloyds Bank (1974) 1 Lloyds 241, when I said at page 253: “… If one person, by a negligent mis-statement, induces another to enter into a contract – with himself or a third person -he may be liable in damages”. It was a “fatal error”. In order to escape from that rule, the pleader used to allege -I often did it myself – that the misrepresentation was fraudulent, or alternatively a collateral warranty. The Reverend Doctor John Inglis and others v Thomas Mansfield, Esq. No claim can be brought under the Misrepresentation Act, 1967, because that Act did not come into force until 22nd April, 1967: whereas this representation was made in April 1963. Court of Appeal of England and Wales cases, https://casebrief.fandom.com/wiki/Esso_Petroleum_Co._Ltd._v_Mardon?oldid=10986. I think that the whole of this tragic story is directly attributable to the original mistake of the plaintiffs and that they co-operated with Mr. Mardon in his unsuccessful attempts to escape its consequences. The internal documents disclosed on discovery show that the decision of Esso’s head office to purchase this site in the first place was strongly influenced by, if not dependent on, it having an e.a.c. This is an endeavour to salvage as much as I can in lieu of inevitable bankruptcy”. Negligent misrepresentation: Assuming that there was no warranty, the question arises whether Esso are liable for negligent mis-statement under the doctrine of Hedley Byrne v. Heller & Partners Ltd.(1964) Appeal Gases 465. Mardon was told that Esso estimated that the throughput of the Eastbank Street site, in its third year of operation, would amount to 200,000 gallons a year. Mr. Justice Lawson did, however, decide that Esso owed Mr. Mardon a duty to take care in relation to the statement made to him as to the potential of the filling station and that they were in breach of that duty. I also incurred a large overdraft. The rent was reduced to £1,000 a year, and a surcharge of 1d.to 2d. The second agreement was thus in a practical sense an extension of the first for it was the best means that offered a prospect of salvaging something from the wreck for both sides. misrepresentation false statement bisset wilkinson [1927] ac 177 privy council the claimant purchased piece of farm land to use as sheep farm. So Mr. and Mrs. Mardon could at any time have wound the company up by their own resolution and taken the money standing to its credit in its bank account for themselves as their own money. It was on Eastbank Street, one of the busiest streets of the town. But it must be done in assessing the loss. The three conclusions are (1) that Mr. Mardon had a cause of action in tort for negligence but not in contract for breach of warranty; (2) that the measure of damages in tort on the facts of this case is narrower in tort than in contract; and (3) that the causal effect of the negligent mis-statement had become spent by September, 1964 which, therefore, became the so-called “cut-off point”, up to which Mr. Mardon could recover his losses but no further. This is a negligent misrepresentation because Esso is in a special relationship with Mardon and they are in a position to have special knowledge. That seems to me too remote and should be compensated for by interest on the overdraft. It is very different from the Hew Zealand case where the land had never been used as a sheep-farm and both parties were equally able to form an opinion as to its carrying capacity – see particularly 1927 Appeal Cases at pages 183-4. Esso had thought that they could have the forecourt and pumps fronting on to the busy main street. Esso was successful at trial which Mardon appealed. Not only the terms of such contracts but the existence of an animus contrahendi on the part of all the parties to them must be clearly shown. I will take them in order. Just as in the case of Doyle v. Olby (Ironmongers) (1969) 2 Queen’s Bench 158, he can say: “…I would not have entered into this contract at all but for your representation. but again he failed. In my judgment he had scarcely an option to do otherwise. Yet it is not really difficult to formulate it in terms such as: “In consideration of you entering into the proposed tenancy we warrant that after careful consideration we have assessed its e.a.c. To quote again, in De Lassalle v. Guildford (supra) A.L. LORD JUSTICE ORMROD: My problem is in finding some way of assessing the amount of Mr. Mardon’s loss and the loss of the use of the capital, both in the business and afterwards. The problem of finding a reliable criterion for deciding whether a statement is to be treated as a “mere representation” carrying no constructual consequences, or as a so-called warranty which forms part of the contract itself, or possibly as a contract collateral to the main contract, has exercised the courts for many years. For example, it is said that to constitute a warranty a representation must be of fact and not of opinion; or a statement about existing facts as opposed to future facts such as a forecast. QUEEN’S BENCH DIVISION Esso Petroleum Co Ltd v Mardon [1976] EWCA Civ 4 is an English contract law case, concerning misrepresentation. Mardon tried his best, however he lost money. In this regard I would differ from the finding of the learned judge below in holding as he did that no warranty was given by Esso. In addition, they would get a sub3tantial rental from a tenant. It was finished early in 1963. In 1961 Esso Petroleum wanted an outlet for their petrol in Southport. They needed him to keep the station as a going concern and sell their petrol. It seems to me that if such a person makes a forecast – intending that the other should act upon it and he does act upon it – it can well be interpreted as a warranty that the forecast is sound and reliable in this sense that they made it with reasonable care and skill. Cited – Heilbut Symons and Co v Buckleton HL ([1911-13] All ER 83, [1913] 82 LJKB 245, [1913] 107 LT 769, Bailii, [1912] UKHL 2, [1913] AC 30, (1912) 107 LT 769, Bailii, [1912] UKHL 642) In an action of damages for fraudulent misrepresentation and breach of warranty, the plaintiff founded on a conversation between himself and the defendants’ representative. I remember scores of cases of that kind, especially on the sale of a business. If Mr. Mardon had not been induced to enter into the contract, it is fair to assume that he would have found an alternative business in which to invest his capital. On the other hand there are dicta, particularly in the speeches in Heilbut Symons & Co. v. Buckleton (supra), which suggest a more restrictive or conservative approach, for example, Lord Haldane at page 37 said; “It is contrary to the general policy of the law of England to presume the making of a collateral contract in the absence of language expressing or implying it”. A variety of tests have been suggested to determine the intention of the parties. The decision of the New Zealand case itself proceeded on a number of grounds. Mardon was told that Esso estimated that the throughput of the Eastbank Street site, in its third year of operation, would amount to 200,000 gallons a year. It was dated 10th April, 1963, and was for three years at a rent of £2,500 for the first two years, and £3,000 for the third year. It seems to me that the losses after 1st September 1964, can be attributed to the original mis-statement, just as those before. Mr. Ross-Munro Q.C., for the plaintiffs, challenged the finding of negligence on the ground that the Hedley Byrne principle does not apply to statements made during pre-contract negotiations if they ultimately result in a contract. The business of this filling station was undoubtedly the personal business of Mr. Mardon. Country The losses continued until in April 1967 Mr. Mardon could carry on no longer. 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