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CURTIS v. CHEMICAL CLEANING AND DYEING CO.

[Plaint No. F. 2012.]

Contract—Negligence—Dress left for cleaning—Damage—Conditions on receipt exempting cleaners from liability for damage however caused—Beceipt signed by plaintiff—Innocent misrepresentation by shop assistant.

When the plaintiff took a white satin dress to the defendants' shop to be cleaned she was given a paper headed " Keceipt " and was asked by a shop assistant to sign it. The plaintiff inquired why her signature was required and the assistant replied, in effect, that the defendants would not accept liability for certain specific risks, including the risk of damage by or to the beads and sequins with which the dress was trimmed. In fact the " receipt " contained a
condition that the cleaners accepted no liability for any damage however arising. When the dress was returned to the plaintiff it was found to be stained, and she was awarded damages by the county court judge, who held that the defendants had been guilty of negligence and were not protected by their exemption clause by reason of misrepresentation as to its character. On appeal by the defendants: —

Held, that the defendants could not rely on the exemption clause because their assistant by an innocent misrepresentation had created a false impression in the mind of the plaintiff as to the extent of the exemption and thereby induced her to sign the receipt. Per Denning, L.J. Any behaviour, by word or conduct, was sufficient to be a misrepresentation if such as to mislead the other

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party about the existence or extent of the exemption. If it conveyed a false impression that was enough. Such an impression might even be conveyed by simply handing the document to the customer as if it were a receipt, or by asking her to sign it without drawing attention to the condition.

L'Estrange v. F. Graucob Ld. [1934] 2 K. B. 394; Olley v. Marlborough Court, [1949] 1 K. B. 532; Bex v. Kylsant (Lord), [1932] 1 K. B. 442; and Low v. Bouverie, [1891] 3 Ch. 82, applied.

APPEAL from Judge Blagden, sitting at Westminster county court.

The plaintiff, Mrs. Curtis, took to the shop of the defendants, Chemical Cleaning and Dyeing Co., for cleaning, a white satin wedding dress, and was handed by a shop assistant a paper headed " Receipt ", which she was asked to sign. Before doing so the plaintiff asked the assistant why her signature was required, and was told (according to the plaintiff) that it was because the defendants would not accept liability for certain specified risks, including the risk of damage by or to the beads and sequins with which the dress was trimmed. The plaintiff then signed the "receipt", which in fact contained the following condition:
'' This or these articles is accepted on condition that the company is not liable for any damage howsoever arising, or delay ".

When the dress was returned to the plaintiff there was a stain on it which could not be explained, and the plaintiff brought the present action claiming damages. The defendants denied negligence and also relied on the exemption from liability contained in the signed receipt.

The county court judge held that the onus of showing that the damage was not due to their negligence was on the defendants; that they had failed to discharge that burden; and that because of innocent misrepresentation by the shop assistant they could not rely on the condition contained in the receipt. He therefore awarded the plaintiff 32l. 10s. damages.

The defendants appealed against the finding of misrepresentation.

Geoffrey Lawrence, K.C., and A. M. Wallace for the defendants.
Turner-Samuels, K.C., and D. J. Turner-Samuels for the plaintiff.

The argument for the defendants sufficiently appears from the judgments. Counsel for the plaintiff were not called upon to argue.

SOMERVELL, L.J., stated the facts, and continued:—The finding of negligence by the county court judge is not challenged,

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but the defendants sought to rely on an exemption as to liability contained in a document which the plaintiff had been asked to sign and which was headed " Receipt ". It sets out her name and address and the description of the dress to be cleaned and pressed. The material words of it, which are in the bottom
right-hand corner under the amount which is to be charged, are: '' This or these articles is accepted on condition that the company is not liable for any damage howsoever arising, or delay ". On the basis that that would exempt the defendants from liability for negligence the plaintiff alleges that she was induced to sign that receipt by misrepresentation.

This appeal is with reference to a very short point which depends to my mind on the meaning to be given to the judge's findings in regard to the evidence. He says: " I was satisfied " that in fact the assistant who received the plaintiff's garment . . . when asked by the plaintiff why her signature was required,
" said (whatever her actual words) something to the effect that the defendants would not accept liability for certain specified risks, including the risk of damage by or to beads and sequins. She did not tell the plaintiff that the defendants sought to exclude any liability for damage however caused, and this, it
" seemed to me, was a misrepresentation, though a perfectly innocent one, of the document's effect ".

The judge then referred to the statement of Scrutton, L.J., in L'Estrange v. F. Graucob Ld. (1), which reads: " When a document containing contractual terms is signed, then, in the absence of fraud, or, I will add, misrepresentation, the party signing it is bound, and it is wholly immaterial whether he has read the document or not ". There was some evidence, which was admitted by the judge, asoto the instructions given to the assistant with regard to getting customers to sign a " receipt " of this kind. I am not sure that it is material, but from the note I would gather that the intention of those who gave the
instructions was that in cases of certain articles, where damage was not anticipated, the assistant was told not to trouble about getting the customer to sign. But in cases where the article was such that, in the experience of the defendants, damage might occur without negligence, then customers should be asked to sign. Beads and sequins, which this dress had on it, are adornments which are apt to get damaged in cleaning. It may well be that those instructions might not be fully understood by those who had to carry them out.

Mr. Lawrence submitted on behalf of the defendants that we should read those findings as meaning that the assistant conveyed the impression that the defendants were not liable for damage,

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and that beads and sequins were given merely as examples of that non-liability. I cannot so read the finding of the judge. We were referred quite rightly to the notes of the evidence, which seem to me amply to support the construction which I put on the passage. Indeed in my opinion it is the only construction
which it can bear. What was conveyed to the plaintiff, in my view, was that there were certain risks, in this case beads and sequins, which the defendants were not prepared to accept. She was asked to sign this document and she thought that its purpose was to exempt them from liability for beads and sequins, and that alone. That, I think, plainly is a misrepresentation. The words on the document purported to exempt them from all liability, howsoever arising. In those circumstances, I think, owing to that misrepresentation, this exception never became part of the contract between the parties. Mr. Lawrence did comment on the fact that there was no finding in terms that the plaintiff was induced to sign by the misrepresentation, but I think that the note of her evidence makes it clear that she was so induced. On her evidence, which the county court judge clearly accepted, she asked why she had to sign the document. Obviously the answer which she received was what induced her to sign it.

For these reasons I think that this appeal must be dismissed.

SINGLETON, L.J. I agree.

DENNING, L.J. This case is of importance because of the many cases nowadays when people sign printed forms without reading them, only to find afterwards that they contain stringent clauses exempting the other side from their common-law liabilities. In every such case it must be remembered that, if a person wishes to exempt himself from a liability which the common law imposes on him, he can only do it by an express stipulation brought home to the party affected, and assented to by him as part of the contract : Olley v. Marlborough Court (2). If the party affected signs a written document, knowing it to be a contract which governs the relations between them, his signature is irrefragable evidence of his assent to the whole contract, including the exempting clauses, unless the signature is shown to be obtained by fraud or misrepresentation: L'Estrange v. Graucob (3). But what is a sufficient misrepresentation for this purpose? That is the point which Mr. Geoffrey Lawrence has raised in this appeal.

In my opinion any behaviour, by words or conduct, is sufficient to be a misrepresentation if it is such as to mislead the other party about the existence or extent of the exemption. If it conveys a false impression, that is enough. If the false impression

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is created knowingly, it is a fraudulent misrepresentation; if it is created unwittingly, it is an innocent misrepresentation; but either is sufficient to disentitle the creator of it to the benefit of the exemption. In Rex v. Kylsant (Lord) (4) it was held that a representation might be literally true but practically false, not
because of what it said, but because of what it left unsaid; in short, because of what it implied. This is as true of an innocent misrepresentation as it is of a fraudulent misrepresentation. When one party puts forward a printed form for signature, failure Denning, LJ. by him to draw attention to the existence or extent of the exemption clause may in some circumstances convey the impression that there is no exemption at all, or at any rate not so wide an
exemption as that which is in fact contained in the document. The present case is a good illustration. The customer said in evidence: '' When I was asked to sign the document I asked '' why ? The assistant said I was to accept any responsibility " for damage to beads and sequins. I did not read it all before
" I signed it ". In those circumstances, by failing to draw attention to the width of the exemption clause, the assistant created the false impression that the exemption only related to the beads and sequins, and that it did not extend to the material of which the dress was made. It was done perfectly innocently,
but nevertheless a false impression was created. It was probably not sufficiently precise and unambiguous to create an estoppel: Low v. Bouverie (5); but nevertheless it was a sufficient misrepresentation to disentitle the cleaners from relying on the exemption, except in regard to beads and sequins.

In the present case the customer knew, from what the assistant said, that the document contained conditions. If nothing was said she might not have known it. In that case the document might reasonably be understood to be, like a boot repairer's receipt, only a voucher for the customer to produce when collecting the goods, and not understood to contain conditions exempting the cleaners from their common-law liability for negligence. In that case it would not protect the cleaners: see Chapelton v. Barry Urban District Council (6). I say this because I do not wish it to be supposed that the cleaners would
have been better off if the assistant had simply handed over the document to the customer without asking her to sign it; or if the customer were not so inquiring as the plaintiff, but were an unsuspecting person who signed whatever she was asked without question. In those circumstances the conduct of the cleaners might well be such that it conveyed the impression that the document contained no conditions, or, at any rate, no condition

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exempting them from their common-law liability, in which case they could not rely on it.

The second point made by Mr. Geoffrey Lawrence was that, even if there was an innocent misrepresentation, the plaintiff cannot in point of law avoid the terms of the contract. He said that an innocent misrepresentation gives no right to damages but only to rescission; that rescission was not possible because the contract was executed; and that in any case rescission was of no use to the plaintiff because, once rescission has taken place, there would be no contract to sue upon. That is an attractive argument, but I do not think that it is right. One answer to it is that an executed contract can in a proper case be rescinded for innocent misrepresentation; and if this contract was rescinded the plaintiff could sue in tort for negligence, because the defendants, having entered upon the task of cleaning the dress, were under a duty to do it carefully. I do not pursue this, however, because I prefer to put it more simply. In my opinion when the signature to a condition, purporting to exempt a person from his common-law liabilities, is obtained by an innocent misrepresentation, the party who has made that misrepresentation is disentitled to rely on the exemption. Whether you call that a rule of law or equity does not matter in these days. We have got too far beyond 1873 to trouble about distinctions of that kind. Scrutton and Maugham, L.JJ., in L'Estrange v. Graucob (7) treated it as plain. I therefore agree that the appeal should be dismissed.

Appeal dismissed.
Solicitors: E. F. Iwi for Hanchett Copley & Hails, Edgware; Pearce & Sons.
A. W. G.

(1)[1934] 2 K. B. 394, 403.
(2)[1949] 1 K. B. 532.
(3)[1934] 2 K. B. 394.
(4)[1932] 1 K . B. 442.
(5)[1891] 3 Ch. 82.
(6)[1949] 1 K. B. 532.
(7)[1934] 2 K. B. 394.