Elcock v Johnson (1949) 2 All E.R. 381

5/20/2018 Elcock v Johnson (1949) 2 All E.R. 381

1/11

2K B

KING S BENCH DIVISION.

755

two cases. The result is that the defendant, through his

act of k indness in allowing this la dy to use the coal shed,

is probably now a wiser man, and I may perhaps regret that

the decision in this case may tend to discourage landlords

from acts of kindness to their tena nts . B ut ther e it is : tha t

is the law.

In this particular case we are told that the landlord, since

the hearing before the county court judge, has in fact taken

down the shed. I do not th ink it w ould be right in a case of

this kindrather a trivial sort of quarrelto make a manda-

tor y injunction compelling him to restore this shed. If he

had in fact taken down the shed before the hearing in the

cou nty court, the position might have been very different;

but he succeeded in the county court and he took down the

shed. I t is quite true th a t he did it at his peril, bu t I th ink

that in the circumstances of this case justice will be done by

awarding the plaintiffs the sum of

10I.

by wa y of damages.

SINGLETON

L .J. I agree.

Appeal allowed.

Solicitor for plaintiffs :

H. N. H. Bransom.

Solicitors for defendant : Dale & Newbery, Feltham.

A. W. G.

C. A.

1949

WRIGHT

v.

M A C A D A M .

Tucker, L.J.

ELCOCK AND OTHERS

V.

THOMSON.

Insurance

Fire

Valued policy

Mansion damaged by fire

Not

reinstated

Measure of indemnity

Principles of marine insurance

law

Applicability

Marine Insurance Act,

1906 (6

Edw.

7,

c.

41) ,

s. 27,

sub-s.

3 ; s. 69 ,

sub-s.

3 ; s. 7 1,

sub-s.

3 .

A mansion was insured against fire, and by a schedule to the

policy its value was agreed at 100,000/. (or 106,850/., including

certain offices and adjoining buildings). The mansion was

damaged by fire. Its actual value before the fire was 18,000/.,

and its actual value after the fire was 12,600/. (the depreciation

in value being 5,400/. in 18,000/.). The cost of rein statem ent

would have been some 40,000/., but the mansion was not in fact

reinstated:

1949

May 18, 19,

23. 24 ;

July

1.

Morris J.


2/11

756 K I N G ' S B E N C H D I V I S I O N . [1949]

1949

Held

tha t in orde r to a ssess the amount to which the a ssured

were enti t led under the policy the percentage of ac tual deprecia t ion

ELCOCK result ing f rom th e f ire should be applied to th e agreed value , an d

THOMSON

th at th e assured were therefore enti t led to

5,400

l 8 o o o

X 1 06,850;., or 32,055?.

Quaere(i.) whether, had rein state ment been in fact effected,

underwriters would have been liable to pay the cost of it; or

(ii.) whether, had the cost of reinstatement been less than 32,055/.,

bu t it had no t in fact been effected, underw riters could limit their

liability to the cost of reinstatement.

ACTION.

By a Lloyd's fire policy dated November 22, 1940, property

specified in a schedule attached to the policy was insured

again st loss or dam age by fire or lightning . Ite m (1.)

of the schedule was a mansion at Easthampstead Park,

W okingham , and against it, in a column headed sum insured ,

was set the figure 100,000/. Item s (2.) to (5.) included v arious

offices and adjoining buildings, and against those items (in

the columns headed sum insured ) were set various figures

totalling 6,850/. A t the end of the schedule it was prov ided :

The sum set opposite each item in this specification h as been

accepted by the underwriters and the assured as being

the true value of the pro per ty insured and in the eve nt

of a loss the said pr operty will be assumed to be of such

value and will be assessed accordin gly.

On May 16, 1947, during the currency of the insurance,

the mansion was damaged by fire. The assured claimed

against the underw riters in respect of th at dam age. The

underwriters agreed that the assured were entitled to recover,

but the amount to which they were entitled was disputed.

The mansion was not reinstated.

The present action was a representative action brought

against one of the underwriters.

Scott Cairns K.C. andMendelfor the assured . The principle

of indem nity does not a pply stric tly to valued policies : the

agreed valuation must not be ignored : Lewis v. Rucker (1) ;

Irving

v.

Manning

(2) ;

North of England Iron Steam ship

Insurance Associationv.Arm strong (3); M arine Insurance Act,

(1) (1761) 2 B ur r. 1167. (3) (1870) L . R . 5 Q. B . 244.

(2) (1847) 1 H . L . C. 287 .


3/11

2K B

KING S BENCH DIVISIO N.

757

1906, s. 27, sub-s. 3 (1). City Taylors, Li. v. Evans (2)

is the only reported case regarding a valued policy of fire

insurance. Th at decision shows th at the agreed valuation

must be accepted in fire insurance as well as in marine

insurance.

The actual value of the mansion in the present case must

be tak en to be th e agreed valuatio n, v iz., ioo.oooZ. The loss

to the assured m ust be tak en to be the difference between

that amount and the value of the mansion after the fire,

and the assured are entitled to recover th at difference.

There is no analogy to the present case in marine insurance

law. In

Lewis

v.

Rucker

(3) a verdict of a jury was taken

a s to the rule which ough t to be applied in assessing dam age

to cargo und er a valued policy. The correct approa ch in

the present case is to construe the actual words of the contract

of insurance unhampered by any previous decisions.

Alternatively the reasoning of Lord Mansfield C.J. in

Lewis v. Rucker (3) is applicable to the present case, and the

measure of indem nity stipulated by s. 71 , sub-s. 3, of the

Marine Insurance Act for damage to cargo insured by a valued

1949

ELCOCK

u.

THOMSON.

(1) The M arine Insu rance Act,

1906,

s. 27, sub-s. 1 : A policy

may be either valued or un-

valu ed. Sub-s. 2 : A valued

policy is a policy which specifies

the agreed value of the subject-

m atte r insured. Sub-s. 3 :

Subject to the provisions of this

Act, and in the absence of fraud,

th e value fixed by th e policy is,

as between the insurer and

assured, conclusive of the in-

surable value of the subject

intended to be insured, wh ether

the loss be total or partial.

Section 69 : W here a ship is

damaged, but is not totally

lost, the measure of indem nity,

subject to any express pro-

vision in the policy, is as

follows :

. . . . (3.) W here th e ship

has no t been repaired, and has

no t been sold in her dam aged

sta te during the risk, th e assured

is entitle d to be indemnified for

the reasonable depreciation aris-

ing from the unrepaired damage,

bu t no t exceeding the reasonable

cost of repairing such dam-

age . . . .

Section 71 : W here there is a

partial loss of goods, mer-

chandise,

or other moveables,

the measure of indemnity, sub-

ject to any express provision in

the policy, is as follows:

. . . . (3.) W here th e whole or

any part of the goods or mer-

chandise insured has been de-

livered damaged at its destina-

tion, the measure of indemnity

is such proportion of the sum

fixed by the policy in the case of

a valued policy, or of the in-

surable value in the case of an

unvalued policy, as the differ-

ence between the gross sound

and damaged values at the place

of arrival bears to the gross

sound value.

(2) (1921) 38 T. L. R. 230.

(3) 2 Burr. 1167.


4/11

758 KING 'S BENCH DIVISION. [ 949]

1949 policy ought to be app lied. The ana logy of a building to

goods is closer than the analogy of a building to a ship.

v. Ev en , however, if the analogy to a ship be chosen, s. 69, sub-s. 3,

HOMSON.

0

^ .^g Marine Insurance Act must be construed as being

limited by s. 27, sub-s. 3. Th at sub-section provides, th at the

agreed valua tion m ust be tak en to be conclusive wh ether

the loss be tota l or pa rtia l. [Steamship Balmoral Co.,

Ld.

v.

Marten

(1) and

Pitman

v.

Universal Marine Insurance

Co. (2) were the n referred to.] W hichever analogy is chosen,,

therefore, th e agreed v aluation m ust not be ignored, and , if

marine principles are to be applied at all, the percentage of

actual depreciation resulting from the fire in the present case-

must be applied to the agreed value.

If neither of those methods of calculating the measure of

indemnity are applicable the assured is entitled to the cost

of reinstatement.

Havers K.C.

and

Gahan

for the underw riters. The agreed

valuation should be ignored in the present case. I t on ly

applies in the case of a to ta l loss. The assured are therefore

entitled to the diffeience between the actual value of the-

mansion before the fire and its value after the fire.

The principles of marine insurance law are applicable to

the present case : Castellain v. Preston (3) ; City Taylors Ld.

v. Evans (4). Th e analogy applicable is th a t of a ship. A

building is more like a ship tha n goods. Like a ship it is

usually capable of being repaired. The measure of indem nity

laid down by s. 69, sub-s. 3, of the Marine Insurance Act,.

1906,

m ust therefore be applied. No distinction is drawn

in th a t sub-section, such as the d istinction in s. 71 , sub-s. 3,

between valued and unva lued policies. It m ust therefore

have been the intention of the legislature for s. 69, sub-s. 3,

to apply in the case of a valued policy. Section 27, sub-s . 3,.

begins : Subject to th e provisions of this A ct, and it is

clearly subject, therefore, to s. 69, sub-s. 3.

Alterna tively, if the -agreed value m ust be take n into

consideration, the correct percentage to apply to the agreed

value is the propoition which the cost of reinstatement bears

to the cost of building a new mansion.

Scott Cairns K.C. replied.

Cur. adv. vu lt.

(1) [1902] A . C. 5 11 . (3) (1883) Q- B . D . 38 0.

(2) (1882) 9 Q. B . D . 192. (4) 38 T. L. R . 23 0.


5/11

2 K . B . K I N G ' S B E N C H D I V I S I O N . 759

July 1. M O R R I S J. In orde r to ad jud ica te up on th e 1949

present claim it is necessary to determine what is the sum

E LCOCK

appropriate to be paid under a valued policy of insurance

v.

in respect of damage to a mansion caused by fire. THOMSON.

The cubic content of the whole mansion was 990,260 cubic

feet. The cubic con tent of the portion of the mansion w hich

was burnt out was 209,000 cubic feet, representing just over

21 per cen t, of th e who le. B u t I am satisfied th a t th e mea sure

of the depreciation in value of the mansion wluch was caused

by the fire cannot properly be determined by having regard

merely to the proportion to the whole structure of the part

which was burnt out .

If reinstatement of the damage at a date a few months

after the fire had been possible the cost of such reinstatement

would have been 40,252/. , excluding architects ' and surveyors'

fees, or 43,252^., includ ing such fees. If a new man sion ha d

been erected at about such date similar to the mansion in

question as it stood before the fire, the cost of erection would

have been 205,000/.

(His Lordship then considered the evidence as to the actual

value of the mansion before and after the fire, and continued :)

The result is that in my judgment the actual value of the

m an sio n before the fire wa s i8,oooZ. an d its valu e after th e

fire was 12,600/.

Mr. Scott Cairns presented alternative formulations of

claim on behalf of the assured. He subm itte d (i) th a t t he

assured were entit led to recover the difference between the

amount of 100,000/. and whatever amount was found by

the court to represent the value of the mansion after the fire.

Alternatively he submitted (i i) that the actual value of the

mansion before the fire should be assessed and also the actual

value after the fire, and that the percentage of depreciation

should then be applied to the agreed or conventional value

of 100,000/. so as to produce a resulting figure which would

be th e am ou nt recovera ble. As a further possible alte rna tive

method of claiming he submitted (i i i) that the assured were

entit led to recover a sum representing the cost of reinstatement

of th e ma nsion . M r. Sco tt Cairns did no t, howe ver, pu t th a t

basis forward very strongly.

On behalf of the underwriter, Mr. Havers' main submission

was that the principles which would apply if there were a

claim under a valued policy of marine insurance on a ship

which was damaged were the principles which could and


6/11

7

KING S BENCH DIVISIO N.

[1949]

1949

ELCOCK

T H O M S O N .

Mom's J.

should be applied in adjudicating upon the present claim.

He submitted that the interpretation of s. 69, sub-s. 3, of the

Marine Insurance Act, 1906, was that, if a ship covered by a

valued policy was damaged but not lost, and if it was not

repaired, recovery under the policy should be limited to a sum

representing the actual depreciation in value caused by the

casualty.

As an alternative submission he contended that recovery

should be limited to that percentage of the agreed value of

100,000/. as the cost of reinstatement about the date of the

fire bore to the cost of the construction of a new mansion

at th at da te. Thus he contended th at the cost of reinstatem ent

40,252/., represented 19*635 per cent, of 205,000/., the cost

at about the date of the fire of the construction of a new

mansion similar to the one which existed, and that the sum

to be awarded should therefore be limited to I9 635 per cent,

of 100,000/.

Mr. Scott Cairns submitted that there was no reason for

preferring the analogy of the rules governing a policy on a

ship to that of the rules relating to goods, and he referred

to the reasoning in

Lewis

v.

Rucker

(1). A lterna tively he

submitted that if, contrary to his contention, s. 69, sub-s. 3,

of the Marine Insurance Act could be regarded as directing

the way to the principle applicable in the present case, that

sub-section ought not to be regarded without reference also

to s. 27, sub-s. 3.

I pass now to consider wha t is the basis upon which the claim

should be allowed.

When parties have agreed upon a valuation then, in the

absence of fraud or of circumstances invalidating their

agreement, they have made an arrangement by which for

be tte r or for worse the y are boun d. As Atk in L .J. po inted

out in City Ta ylors, Ld. v . Evans (2) ' I n a va lued po l i cy ,

w hat is valued is the subje ct-m atter of the insurance, and

not the am ount of the loss. He pointed out th at in marine

insurance the position is made clear by the Marine Insurance

Ac t, 1906, s. 27, sub-ss. 2 and 3. It w as common gro und be -

tween the par ties th at the policy in th e present case was properly

to be regard ed as a value d policy. W hen losses occur after

parties to contracts of insurance have agreed upon values

then in some cases advantage may occur to the insured while

in others ad va nta ge may occur to the insurer. (SeeNorth of

(1) 2 B u rr . 1167. (2) 38 T. L . R . 230, 234.


7/11

2K. B.

KING'S BENCH DIVISION. 761

England Iron Steamship Insurance Association

v.

Armstrong

(1).)

In

Irving

v.

Manning

(2) the assistance of the judges was

sought by the House of Lords, and Patteson J., delivering

the opinion of the judges, said in reference to a valued policy

on a ship (3) : By the terms of it, the ship, etc., for so much

as concerns the assured by agreementbetween the assured

and assurers, are and shall be rated and valued at 17,500^.,

and the question turns upon the meaning of these words.

Do they, as contended for by the plaintiff in error, amount

t o an agreement that for all purposes connected with this

voyage, at least for the purpose of ascertaining whether

there is a total loss or not, the ship should be taken to be

of that value, so that when a question arises whether it

would be worth while to repair, it must be assumed that

the vessel would be worth that sum when repaired ? Or

do they mean only, that for the purpose of ascertaining the

amount of compensation to be paid to the assured, when

the loss has happened, the value shall be taken to be the sum

fixed, in order to avoid disputes as to the quantum of the

assured's interest ? We are all of opinion that the latter

is the true meaning ; and this is consistent with the language

' 'of the policy and with every case that has been decided upon

valued policies.

Patteson J. said further (4) : A policy of insurance is

not a perfect contract of indemnity. It must be taken

with this qualification, that the parties may agree beforehand

in estimating the value of the subject assured, by way of

liquidated damages, as indeed they may in any other contract

to indemnify.

Mr. Havers did not dispute that if the mansion had been

entirely destroyed by fire the agreed valuation would have

become the measure of the indemnity to be paid by under-

writers. But he argued that as the mansion was only

damaged the agreed valuation should not enter into the

assessment of the amount payable by underwriters. His

argument was in the main based upon a contention that

under s. 69, sub-s. 3, of the Marine Insurance Act the amount

payable under a policy of marine insurance where a ship

was damaged and had not been repaired, nor sold in her

damaged state, would be the amount of the depreciation.

He submitted that, as there is no express mention of valued

(1) L. R. 5 Q. B. 244. (3)

Ibid

305.

1949

ELCOCK

T H O M S O N .

Morris

J.

(2) 1 H. L. C. 287.

(4) Ibid 307.


8/11

762 K I N G ' S B E N C H D I V I S I O N . [1949]

1949 policies in s. 69, sub -s. 3, th e resu lt should follow th a t, in th e

E L C O C K

case of a pa rtia l loss of a ship, pa ym en t und er a policy of

v. insurance should be m ade w ithout regard to an y agreed

THOMSON.

v a

i

u a

t j

o n

_ J

e

submitted that a fire policy being a contract

.Moms

j

of indemnity closely resembling a marine policy should be

similarly construed, and he relied upon passages in the

judgment in

Castellain

v.

Preston

(1) in support of his

contention that the two types of policy should be similarly

regarded.

In considering these conten tions, as M r. Scott Cairns pointed

out, it is first to be observed that the statutory provisions

of the Marine Insurance Act, 1906, do not apply to the present

case.

B ut , if those provisions are to be looked at in order

to seek guidance on principle, I am not prepared to accept

th e validity of M r. H av ers' contentions. Section 69, sub-s. 3,

of the Act uses the words is entitled to be indemnified

for the reasonable depre ciation. Those words do not fix

the mea sure of such indem nity. The y do no t lay it down

th a t the pa rties' agreed valua tion is to be ignored. Th ey

certainly do not provide that s. 27, sub-s. 3, of .the Act is to

be disregarded . Indem nification for reasonable dep reciation

must in my judgment take into account any agreed valuation.

Such agreed valuation is the corpus out of which depreciation

takes place and by reference to which the depreciation must

be measured. Furthe rm ore, in m y judgm ent, there is nothing

in s. 69, sub-s. 3, which is inconsistent with or which overrides

what was laid down in Pitman v. U niversal Marine Insurance

Co.

(2) and

Steamship Balmoral Co., Ld.

v.

M arten

(3). In

Pitman v. Universal Marine Insurance Co. (2), the view of

Lindley J., an d of the majo rity in the C ourt of Appeal, was th a t

if th e owner of a ship which is injured by perils insured ag ainst

does not repair the ship but sells her during the continuance of

the risk, he can recover from underwriters for the depreciation

in value of the ship, and can arrive at the measure of the

underwriters' liability by applying the proportion of deprecia-

tion caused by the casualty to th e value as agreed in the policy.

Lord Lindley said inSteamship Balmoral Co., Ld.v. Marten

(4): The notion prevalent at one time, and suppo rted by the

high auth ority of M r. Benecke, th at although the valuation

in a policy is conclusive in the case of a to ta l loss, yet th a t

in the case of a partial loss the valuation may be opened,

(1) n Q . B . D . 380 . (3) [1902] A . C. 51 1.

(2) 9 Q. B . D . 192. (4) Ib id . 52 1, 52 2.


9/11

2 K . B . KING'S B E N C H

DIVISION.

763

has long been exploded The re are num erou s decisions 1949

shewing this to be th e case in valued policies on goods an d

~

E L C O C K

freight (the m ost recen t being

The Main

(1), and I am una ble

v.

to discover any reason for applying to ships a doctrine HQMSQN.

repudiated as unsound when applied to goods or freight. Morris

j

At the same time, I have not discovered any direct decision

on this poin t. The principle th a t a valua tion in a policy

on ships is to be rega rded in cases of pa rtia l loss was assum ed

to be correct inPitman v . Universal Marine Insurance C o.(2)

and was no t questioned on appe al. The owners, however,

contend tha t the underw riters have no concern with the

mode in which the am oun ts payab le for losses insured against

are arrived at. The owners say they are fully insured up

to a certain limit, and that if that limit is not exceeded

all losses insured again st m ust be fully pa id. Th is, m y

Lo rds, appears to me to ignore the difference between valued

policies, as und erstoo d in thi s coun try, and open policies,

and to be erroneous according to English law .

There appears to be no decided case which affords conclusive

authority in regard to the issues raised in the present action.

Some guidance in principle can however be derived from

the decisions in cases where insured ships have sustained

pa rtia l loss. In my judgm ent, on the facts of the pre sent

case, the assured are entitled to be indemnified in respect

of the depreciation which was caused by the fire, and in

quantifying such depreciation the insurable value of the

mansion as agreed by the parties cannot be set aside and

disregarded.

I observe that by the words at the end of the schedule

to the policy by which such agreement as to value is expressed

it is stipula ted th a t in the even t of loss th e pro per ty

will be assum ed to be of the value recorded and will be

assessed according ly. In the bod y of the policy the words

used are to insure from loss or da m ag e. I have considered

whether any significance is to be attached to the fact of the

use of th e word loss only at the end of the schedule, an d

whether it could be argued that the agreement as to value

was only to apply in the event of the destruction or loss of

an item as opposed to damage occurring to it. No such point

was however taken or argued, and I cannot imagine that any

significance attac hes to the use on y of th e word loss.

It would be strange and unnatural if an agreed value were

(1) [1894] P . 320. (2) 9 Q 3 . D. 192.


10/11

7

6

4

KING S BENCH DIVISION. [1949]

ELCOCK

T H O MSO N .

1949 only to app ly in the event of com plete destruc tion an d no t

in the event of par tial destruction. The respective words

loss and dam age as used in the policy seem to be

synonym ous. It would not seem to be the case th at the word

Mnsj.

l o s s is only referable to complete destruction. A part

from this however the opening words of the provision, namely

th e words, The sum set opposite each item in this specification

has been accepted by the underwriters and the assured

as being the true value of the pro perty insured, appe ar to

contain agreement as to value irrespective of the meaning,

of th e word loss which is lat er used .

Although in the case of item (1.) in the schedule to the

insurance policy, namely the mansion, the actual value is

shown to have been far less than the agreed value, it must

have been the case that the agreed value of other items were

far below the ir ac tua l values in 1947. Th us, w ithout specifying

any particular item, a house whose agreed valuation was

2,000/. may very well in 1947 have actually been worth 6,oooZ.

If such a house had been totally destroyed underwriters

would only have been liable to pay 2,000/. If damage by

fire had resulted in a depreciation in actual value from 6,000/.

to 2,000/., and if ac tua l repa irs were not effected, un de rw riter s

would, I imagine, have contended that they were only liable

to pa y tw o-thirds of 2,000/., whereas on M r. Ha ve rs' contention

they would have been liable to pay more . If repairs were

actua lly done, and done in a reasonable way, and a t a reasonable

cost, it may be that the underwriters would be liable to pay

the cost of them up to the extent of their liability under the

policy. Fu rth er it may be tha t if repairs were not done,,

but could be done at a figure representing less than under-

writers' liability on the basis of depreciation, underwriters

could limit their liability to the lower figure. Th us if th e

agreed valuation of a house were 2,000/., and its actual value

were 1,000/., and if it were so damaged that its actual value

became 500/., but it could be repaired for 500/., it may be

th a t the underw riters' liability would have been 500/. As

the questions which I have posed do not call for present

determination, I express no final opinion in regard to them,

but I have considered it desirable to have them in mind when

exam ining and testing the submissions m ade to me . It

may well be that if 43,252/. had in fact been expended in

repairing the damage done, underwriters would have been

liable t.o pa y .th at am oun t. It is not, however, necessary

to express any concluded view in regard to that question.


11/11

2K B

KING S BENCH DIVISION .

The result is that, in my judgment, the percentage of

actual depreciation resulting from the fire should be applied

to the agreed values as set out in the policy so as to arrive

at the am oun t recoverable. On m y findings the m ansion

was worth 18,000/. before the fire and 12,600/. after the fire.

There was, therefore, a depreciation of 5,400/. in 18,000/.,

or a depreciation of 3 in 10. By the mansion I mean the

entirety described in items (1.) to (5.) of the schedule which

together had an agreed value of 106,850/. The loss or dam age

which occurred to the assured was therefore three-tenths

of that figure, namely, 32,055/., and the defendant is liable

for his prop ortion of th at sum. There will be judgm en t

accordingly.

Judgm ent accordingly.

Solicitors for assured :

Upton, Britton and Lum b.

Solicitors for underwriters : Cham berlain & Co.

1949

ELCOCK

T H O M S O N .

Morris

J.

R. P . C.

GALLAGHER v. SH 1L C0C K 1949

Mar. 17, 25.

Sale of goods

Rights of unpaid seller Contract for sale of motor-

Finnemore j .

boat Deposit by buyer Buyer's default in completion Re-sale

by seller Wh ether operative as rescission of contractB uyer's

right to return of deposit

Sale of

oods

Act,

1893 (56

&

57

Viet,

c.71),ss.39. 4-

By s. 48, sub-s. 3, of th e Sale of Goods Act, 1893 : . . . . w here

the unpa id seller gives notice to the bu yer of his intention to

re-sell, and th e bu yer does not within a reasonable tim e

pay . . . . the price, the unpaid seller may re-sell the goods

and claim damages.

By sub-s. 4 : Wh ere the seller expressly reserves a right

of re-sale in case the b uyer should make default, and on th e

'.' buy er mak ing de fault, re-sells the goods, the original con trac t

of sale is the reb y rescinded . . . .

Having regard to the express provision for rescission in s. 48,

sub-s.

4, of the Act of 1893, where the righ t of re-sale has been

reserved in the contract of sale, the true construction of sub-s. 3

is tha t, where an unpaid seller, in the absence of such a reservation,

exercises his right of re-sale under sub-s. 3, that exercise does not

V O L .

II . 1949. 3 E 2

Elcock v Johnson (1949) 2 All E.R. 381

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Transcript of Elcock v Johnson (1949) 2 All E.R. 381