Date and Time: Thursday, 11 January 2024 2:56:00PM MYT

Job Number: 214301888

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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
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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,
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;
62 Sol Jo 365
KING'S BENCH DIVISION
AT LAWRENCE, ATKIN JJ
19, 20 FEBRUARY 1918
Conversion — Proof of intention to assert right to
goods inconsistent with owner's right — Use by
defendant of goods as his own — Need to prove
intention to commit a wrong.
Estoppel — Estoppel by representation —
Negligence — Need to prove inducement to
reasonable person to act on representation.
A railway company received fourteen drums of crude
phenol to be forwarded to the order of certain
consignees. When the goods arrived at a station near
their proper destination they were by mistake and
without the authority of the consignees delivered to
the defendant through his agent at the station, and
the defendant appropriated six of them to his own
use. He subsequently returned eight of the fourteen
to the railway company. The consignees brought suit
against the railway company for misdelivery of six
drums of phenol and recovered 82 pounds. In an
action by the railway company and the consignees
against the defendant for conversion, or alternatively
for money paid, the defendant proved that he was
expecting creosote in casks on another order at the
same time, and contended that as the railway
company had misled him by delivering creosote, they
were estopped from recovering damages for the
conversion. A county court judge having found for the
defendant,
Held: a conversion may take place although there is
no intention to commit a wrong, for the tort is
converting to one's own use the goods of another
person without any lawful excuse; the mere fact that
| 62 Sol Jo 365, | 118 LT 596, | 34
the railway company were negligent was not
sufficient to create an estoppel, since, for that
purpose, there must be proved such conduct on their
part as would induce a reasonable person to act on it,
ie, in this case to convert the goods; this the
defendant had failed to prove; and, therefore, the
plaintiffs were entitled to succeed.
[*538]
Notes
Considered: The Nordborg, Nordborg (Owners) v CP
Sherwood & Co, [1939] 1 All ER 70. Referred to:
Oakley v Lyster, [1930] All ER Rep 234.
As to acts amounting to conversion, see 33
HALSBURY'S LAWS (2nd Edn) 52 et seq; as to
misdelivery of goods by a common carrier, see ibid,
3rd Edn, vol 4, pp 149, 150; and as to estoppel by
representation, see ibid, vol 15, pp 223 et seq. For
cases see 43 DIGEST 469 et seq; 8 DIGEST (Repl)
17, 33-35, 151; and 21 DIGEST 290 et seq.
Cases referred to:
(1) Carr v London and North-Western Rail Co (1875)
LR 10 CP 307; 44 LJCP 109; 31 LT 785; 39 JP 279;
28 WR 747; 21 Digest 288, 1020.
(2) Seton, Laing & Co v Lafone (1887) 19 QBD 68; 56
LJQB 415; 57 LT 547; 35 WR 749; 3 TLR 624, CA;
21 Digest 137, 11.
Also referred to in argument:
The Winkfield, [1902] P 42; 71 L JP 21; 85 LT 668; 50
WR 246; 18 TLR 178; 46 Sol Jo 163; 9 Asp MLC 259,
CA; 43 Digest 515, 522.
Longchamp v Kenny (1779) 1 DougKB 137; 99 ER
91; 12 Digest (Repl) 614, 4740.
Claridge v South Staffordshire Tramway Co, [1892] 1
QB 422; 61 LJQB 503; 66 LT 655; 56 JP 408; 8 TLR
263, DC; 3 Digest (Repl) 121, 401.
Hollins v Fowler (1875) LR 7 HL 757; 44 LJQB 169;
33 LT 73; 40 JP 53, HL; 43 Digest 471, 102.

Lancashire and Yorkshire Rail Co, and others v MacNicoll [1918-19] All ER Rep 537, [1918-19] All ER Rep 537
Consolidated Co v Curtis & Son, [1892] 1 QB 495; 61
LJQB 325; 56 JP 565; 40 WR 426; 8 TLR 403; 36 Sol
Jo 326; 3 Digest (Repl) 50, 353.
Spencer v Parry (1835) 3 Ad & El 331; 1 Har & W
179; 4 Nev & MKB 770; 4 LJKB 186; 111 ER 439; 12
Digest (Repl) 586, 4531.
Brown v Hodgson (1811) 4 Taunt, 189; 128 ER 301;
8 Digest (Repl) 166, 1069.
Moule v Garrett (1872) LR 7 Exch 101; 41 LJ Ex 62;
26 LT 367; 20 WR 416, Ex Ch; 31 Digest (Repl) 458,
5846.
Cunnington v Great Northern Rail Co (1883) 49 LT
392; 48 JP 134, CA; 8 Digest (Repl) 37, 214.
Appeal by the plaintiffs from an order of a county
court judge.
On 24 April 1916, the Lanscahire and Yorkshire Rail Co
received from a Yorkshire firm fourteen drums of crude
phenol to be forwarded to Graeser, Ltd, at Acrefair. The
company by their agents, the London and North-
Western Rail. Co, by mistake and without the authority
of the consignees, delivered the phenol to the defendant
through his agents at Abergele station. The defendant
received them and appropriated six of them to his own
use. The London and North-Western Rail Co were
compelled to pay 82 pounds to Graeser, Ltd, as
damages for misdelivery, and the two companies and
Graeser, Ltd, commenced the present action to recover
this sum from the defendant as damages for conversion.
It appeared that on 28 April 1916, another Yorkshire firm
had consigned twenty-five casks of creosote to the
defendant at Abergele station. The creosote was by
mistake sent to Graeser, Ltd, while the waggon
containing the fourteen drums of phenol, being wrongly
labelled, was sent to the defendant, who returned eight
of them after he discovered the mistake. The six had
been poured by his servants into vats on his premises.
The county court judge held that the defendant was not
liable for conversion and gave judgment accordingly.
The plaintiffs appealed.
Disturnal, KC, and E Hills for the plaintiffs Artemus
Jones for the defendant.
20 February 1918
AT LAWRENCE J:
Page 2 of 6
The main question is that which has been fully argued -
namely, as to the liability of the defendant in conversion.
The action was one of trovor or conversion of these
drums of phenol. The learned judge, after giving the
case very careful bearing, decided that there was no
conversion, and the decision was, in my view,
erroneous. The learned judge commenced stating his
view with regard to conversion by saying and holding
that it was necessary to show that the
[*539]
act of the defendant in converting was intentionally a
wrongful act. That, I think, is wrong. A conversion may
take place though there may be no intention to commit a
wrong. It is converting to your own use the goods of
another person without any real excuse. Here the
defendant converted the goods which really belonged to
Grosser, Ltd, to whom this carbolic acid ought to have
been conveyed. They were the goods of Grosser, Ltd,
and they were converted to the use of the defendant
MacNicoll. MacNicoll is not in a position to say that he
had any rightful ground for using those goods. That was
a conversion which prima facie gives a cause of action
to these plaintiffs in this case.
The plaintiffs here were three - Grasser, Ltd, the owner
of the goods; the Lancashire and Yorkshire Rail Co,
who were the original carriers; and the London and
North-Western Co, who completed the carriage from
some junction between the Lancashire and Yorkshire
and the North-Western Railway to Abergele. Those
three parties were put into the plaint as plaintiffs in order
to make sure that one or the other of them was entitled
to recover for this conversion. There was but one
conversion, and only one account for damages is
recoverable by the three plaintiffs or by any one of them.
It does not seem to me to be material to discuss or to
consider at any length the question whether the cause
of action at the time it was heard before the learned
judge was in Graeser, Ltd, or in the railway companies,
for at that time the railway companies, who were
carrying the goods as common carriers and were liable
to Oneser, Ltd, for having misdelivered their goods, had
paid the amount of the clahn, and the effect of that was
to give the railway companies the right to maintain the
action, not merely as bailees, but as having all the rights
of Grasser, Ltd, vested in them at that time. That, in lily
judgment, entitled the plaintiffs to recover in conversion
against the defendant unless he can show that the
railway companies were estopped from bringing this
action by their conduct with regard to these goods when
they arrived at Abergele. That is the point which has
been very ably discussed by the defendants' counsel.

Lancashire and Yorkshire Rail Co, and others v MacNicoll [1918-19] All ER Rep 537, [1918-19] All ER Rep 537
But he has failed to convince me. He cited several
authorities which I do not in the least question. It is in
the application of those authorities to this case that he
fails. He says that the cause - the proximate or real
cause - of what the defendant did in taking this carbolic
acid to his farm and using it was the conduct of the
railway company's servants at Abergelo station. What
was that conduct? I agree with him when he says that
the conduct of the railway company was negligent. No
doubt, it was negligent, but that is not sufficient in order
to create an estoppel. It must be such conduct on their
part - such a representation intended to be acted upon -
as would induce a reasonable person - a reasonable
consignee - to act upon it and to convert the goods.
I do not think he has established in any degree that
there was any such representation here. Both parties
crave in aid or in excuse the existence of the war. No
doubt, the war did operate more or less on both of them.
The goods arrived at Abergele with a railway
consignment note, saying that there were twenty-five
casks of creosote, numbered I to 25, and that they were
tone in weight. The truck number was also given. I can
find no evidence of any examination to see whether the
truck ever did bear the number appearing on the railway
invoice. I expect it did not, and for this reason. When I
look at the railway invoice of the carbolic acid, I see that
it was loaded into three trucks of different numbers, and
the admission made at the hearing was that this truck
which came to Abergele had been wrongfully labelled.
Therefore, I suppose what happened was this, that
instead of the label being put upon one of these three
trucks to go to Ruabon, as it should have been, it was
labelled to Abergele, so that one of the three carbolic
acid trucks with fourteen drums of carbolic acid arrived
at Abergele along with a railway invoice for twenty-five
casks of creosote. The clerk who was there, instead of
looking to see whether the truck corresponded with the
invoice, just issued the advice note, "twenty-five casks,
such-and-such a truck", the same number on his invoice
note - "Knottingley depot, waggon number, 36,425,
number of packages twenty-five, species of goods,
casks, weight 5 tons, to pay Mr MacNicoll."
[*540]
The carter came with that and presented it. He was told:
"There is the truck." He went down and examined the
truck, and found, not twenty-five casks, but fourteen iron
drums. Whereas the casks were 40-gallon casks, the
drums were about 90-gallon iron drums. The defendant
has to argue that the representation contained in that
advice note, along with the representation: "There is
your truck," and the invitation to the carter to go into the
Page 3 of 6
station office and sign a book - which he did - for twenty-
five casks of creosote, was such a representation as
would induce a reasonably careful man taking delivery
to take away and convert to his own use the drums of
carbolic acid.
I ask myself whether that can be so, and how the
learned judge came to the conclusion, as he did, that
there was no negligence. He said there was no
negligence on the part of MacNicoll or his servants. I
should have found great difficulty in dealing with that if I
thought that he had directed himself properly to the
question what these persons had to do in taking
delivery. He seems to have thought that he had merely
to see whether there was intentional wrongdoing. On
the facts I should have thought that he was perfectly
justified in finding there was no intentional wrongdoing.
That was not the case at all. He had to ask himself
whether the defendant's servants were induced by a
representation of the railway company which they could
as reasonable men act upon to convert this carbolic acid
to their own use. I do not think he put that question to
himself. Had he done so I am sure the learned judge
would never have held as he did that there was no
conversion. When a man goes to a railway station to
take delivery of goods he is not entitled to say: "I will
take anything you like to point out to me. I will ignore the
fact that 1 have an invoice for these particular goods
from my vendors." Here the consignor had sent twenty-
five casks of creosote, 1,000 gallons, and he charged
for the twenty-five casks on his invoice, and they were
numbered one to twenty-five. No sane person with the
knowledge that this was what the consignor of the
goods had told him would have gone to that truck and
said: "There are the twenty-five casks of creosote
numbered one to twenty-five," when he could see,
staring him in the face, fourteen iron drums of a very
much greater content. I think it is impossible for any
reasonable man to say that the Barter was induced to
believe that, by what the clerk or the porter said -
namely: "There they are in that truck down there." It is
not the conduct of a reasonable man induced by the
representation made to him. It is said that both parties
were perfectly careless in the matter. But that will not
do. A person must act reasonably on a representation
which is made and intended to be acted upon.
Consequently, I take it that when these drums of
carbolic acid were taken away and used at the farm it
was conversion for which the defendant is liable, and in
respect of which he cannot say the railway company are
estopped from suing.
That leaves the simple question of the amount of

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
82 pounds 7s 2d. The only thing to be decided upon that
is what arises upon the counterclaim. I think the
plaintiffs are entitled to 2 pounds 10s by way of
counterclaim to cover the cost of a wasted journey and
the reasonable expenses he would have been put to in
communicating with the consignor. I think the appeal
must be allowed and judgment entered for the plaintiffs
for the amount claimed.
ATKIN J:
I agree. The first question that arises is whether or not
there was a conversion by the defendant. In dealing with
that question the learned county court judge seems to
have assumed that it was necessary to show something
in the nature of what I might call a mens rea on the part
of the defendant. He says you must have intention. He
says there may be innocent conversion, but then he
goes on to deal with the facts in this case and he says:
"A man cannot be made liable in tort unless he is
negligent," and that, in his opinion, the defendant was
not guilty of negligence. It appears to me plain that
dealing with goods in a manner inconsistent with the
right of the true owner amounts to a conversion,
providing it is also established that there is an intention
on the part of the defendant in so
[*541]
doing to deny the owner's right or to assert a right which
is inconsistent with the owner's right: But that intention is
conclusively proved if the defendant has taken the
goods as his own or used the goods as his own. Here
there is no question but that the defendant did use the
goods as his own. He poured them into his own tank or
vat. The cases where the intention of the defendant
becomes material are cases where the goods have
come into the possession of somebody who acts as an
agent or bailee, and where the dealing with the goods is
a transfer of the custody from himself to somebody else,
and where it may well be that the intention is not to
exercise any right inconsistent with the right of the true
owner. In those cases the question of intention becomes
material. In a case where a man deals with goods as his
own, no such question can arise.
So far, I think it is plain that the defendant in this case
did convert the goods. But then it is said as against the
railway company who are suing him for conversion: "It
may be true that I have converted these goods as
against the true owner, but you cannot be heard to say
that these goods were not my goods because you have
Page 4 of 6
represented to me that they were, and I acted upon that
representation. Therefore, you are estopped from
claiming in conversion against me." It is hardly
necessary to repeat what has been said so often - that
estoppel is not a cause of action, but is merely one of
the rules of evidence. The estoppel contended for here
is based primarily upon the advice note which was sent
by the railway company to the defendant in the
circumstances with which my Lord has dealt. It is a
consignment note dated May 2. It says:
"The undermentioned goods consigned to you have
arrived at the station. Please give instructions for their
immediate removal as they remain here to your order and
are now held by the company as warehousemen at
owner's sole risk and subject to the company's charges.
When you send for the goods please send this card duly
endorsed."
Underneath there is this: "From Knottingley, number of
waggon, twenty-five casks weight 5 tons, particulars to
follow, to pay." In the first place it is said that that, is a
representation that the goods which arrived in the
waggon were the defendant's goods, and that, when he
went to the station by his servants he believed that, in
consequence of that representation, the goods which
were in the waggon were the twenty-five casks referred
to in the advice note. It appears to me that the
defendant fails to establish facts which create an
estoppel in his, favour. The propositions as to estoppel
have been read, but it is necessary to refer o them
again. They were laid down in Ca" v London and North-
Western Rail Co (1) So far as I am aware, no objection
has ever been made to the statement of them by
BRETT, J, in that case. He said (LR 10 CP at p 317):
"Another recognised proposition seems to be, that, if a
man either in express terms or by conduct, makes a
representation to another of the existence of a certain
state of facts which he intends to be acted upon in a
certain way, and it be acted upon in that way, in the belief
of the existence of such a state of facts, to the damage of
him who so believes and acts, the first is estopped from
denying the existence of such a state of facts."
The second proposition is merely a representation by
conduct in the same way.
In my opinion it is impossible to suppose that the
company by representing wrongfully that the twenty-five
casks had arrived could have intended the person to
whom that representation was made to act upon the
belief that fourteen iron drums were twenty-five casks. It
is a consequence which it seems to me is neither the
natural nor the probable result of the representation
made. In the cases where an estoppel has been found
to exist, it will be found that the representation is made
by a person who has a particular fact within his

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
person to whom the representation is made to verify. In
this case the statement by the railway company in the
advice note is: "I have twenty-five casks of yours; come
and look at them, and fetch them." If in fact the goods
are not what they are stated to be, it is obvious that the
man who
[*542]
receives the advice note is in a position at once to form
his own judgment about his own goods, and to decide
whether they are his or not. Consequently it does not
appear to me that it can be suggested that the railway
company intended the defendant to act upon the belief
that the iron drums were in fact twenty-five wooden
casks.
The other proposition as to estoppel is the proposition
which is stated later in the judgment of BRETT, J. It is to
this effect (ibid at p 318):
"There is yet another proposition as to estoppel. If in the
transaction itself which is in dispute, one has led another
into the belief of a certain state of facts by conduct of
culpable negligence calculated to have that result, and
such culpable negligence has been the proximate cause
of lending and has led the other to act by mistake upon
such belief, to his prejudice, the second cannot be heard
afterwards, as against the first, to show that the state of
facts referred to did not exist."
It will be observed that in the actual statement of the
formula or proposition the reference to intention is not
expressed. But the proposition is extended by the same
learned judge when he was Master of the Rolls and
LORD ESHER in Seton, Laing & Co v Lafone (2). LORD
ESHER said (19 QBD at p 72):
"It is not stated to be necessary by the terms of the
proposition to which I have referred, and I do not think it
is necessary, that the person making the statement
should have intended the person to whom he made the
statement to act in any particular way upon it."
But then he goes on to state chat the questions are.
First they are negligence, and then he says:
"The next question is whether the statement was
calculated to make him believe in a certain state of facts,
and the consequence do what he did upon the strength of
that belief ...."
Applying that test to this case it seems to me impossible
to suppose that the statement that twenty-five casks
have arrived is calculated to make the owner believe,
when he has seen the actual goods, that the goods
which have arrived, and which are not twenty-five casks,
are twenty-five casks. Here it is plain that the defendant
first of all sent up hauliers with the advice note to claim
delivery of the twenty-five casks under the advice note.
Page 5 of 6
These men brought the advice note, and they were then
shown the waggon. They themselves apparently could
not unload. They asked the porter to have the waggon
taken to a side warehouse and there they left it. A
period of twenty-four hours elapsed; at any rate it was
not until the next day that they went and unloaded the
waggon and it is impossible to say that two men, or four,
or any number of men could unload a waggon and take
out six large drums without knowing that the total
number of drums altogether in that waggon was
fourteen. But it does not stop there. Being mere hauliers
they may be taken not to have known or not to have
cared very much as to the property in these goods. But
they took six of these drums to Mr MacNicholl's own
premises, and he actually has them. He knows and
must have known that these six drums were not part of
the consignment of casks. First of all they were drums
and not casks; they were iron, not wood; they held
eighty to ninety gallons instead of forty gallons; and they
weighed half a ton instead of about a quarter of a ton. In
those circumstances it seems to me impossible to say
that the representation made by the railway company in
the advice note was calculated to mislead the person
who necessarily must see the goods before he acts
upon the advice note. That, I think, is the second point
of the case. Nor is the case to my mind advanced by
relying upon any representation by the porter. The
representation by the porter is a representation in
reference to the advice note, and must be taken with it,
and it appears to me that the same considerations apply
to a representation by the porter. If he made any
different representation I have the gravest doubt
whether it can be properly suggested that a railway
porter, in the position in which this
[*543]
man was, had any authority to bind his company by a
representation so as to create an estoppel against them.
My Lord reminds me that it was suggested that some
further point arose in favour of the defendant to support
the estoppel by reason of the fact that the defendant's
servant or haulier signed a book as having received
twenty-five casks. In my opinion, it is impossible that the
signing of floe book should carry the case any further
than the actual advice note. Therefore, it appears to me
there was no estoppel. If there was no estoppel I think
the only question that could arise would be whether or
not the plaintiffs or one of them could recover the full
value of the goods. As far as that is concerned, I think it
is quite plain that a bailee who has the right to the goods
is entitled to claim in detinue and to recover the full
value of the goods. The question of payment is a
 Page 6 of 6
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.

There was a further alternative claim put by the plaintiffs'

counsel in respect of money paid. It is not necessary, I
think, to deal at length with that because, in my
judgment, the defendant is liable in conversion. As at
present advised, however, I think the claim could not be
supported upon that footing because it seems to me that
the essence of a claim for money paid is that the plaintiff
says: "I have paid the defendant's debt," and there must
be something in the nature of a common liability
between the plaintiff and the defendant. Here it seems
to me that there would have been two independent
wrongs, an act of conversion by the bailee and a
separate act of conversion by the defendant; and either
there was a common wrong, in which case there would
be no contribution between joint tortfeasors, or there
would be separate wrongs, in which case there would
be no claim to be paid by the plaintiffs. The correct way
of putting it, no doubt, would be to say, as my Lord
reminds me, that in such a case as this there would be
no request expressed or implied to the railway company
to make a payment to the consignor.

The result is that the appeal must be allowed on the

claim, and judgment entered for the plaintiffs on the