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Felthouse v Bindley

(1862) 142 ER 1037

Quick summary


FelthousePaul Felthouse offered to buy a particular horse from his nephew and stated (in a written
offer) that ‘if I hear no more about him, I consider the horse mine at £30 15s’. His nephew did not
reply but instructed the auctioneer, Bindley, not to sell the horse.

Bindley mistakenly sold the horse. Felthouse sued the auctioneer for conversion.

To succeed in an action for conversion Felthouse needed to demonstrate that he owned the horse at
the time of the sale; to do this he needed to prove that there was a contract between himself and
his nephew for the sale of the horse.


Felthouse could not impose a sale of the horse on his nephew by requiring him to notify Felthouse if
he did not wish to sell on those terms. There was no communication of acceptance before the sale;
consequently the nephew was not bound to sell Felthouse the horse on the day of the auction.

Some more detail

The defendant (Bindley) was an auctioneer. The plaintiff's nephew, John Felthouse, spoke with his
uncle about the purchase of a horse and subsequently wrote to him regarding the price for the
horse. The plaintiff (Paul Felthouse) replied that he would not pay the 30 guineas sought by his
nephew for the horse, but would pay 30l 15s and stated that

'If I hear no more about him, I consider the horse mine at 30l. 15s.'

John Felthouse did not reply and the horse was later sold with other stock, fetching more than the
uncle had offered. The auctioneer subsequently became aware of his mistake in selling the horse
and wrote the the plaintiff apologising for the error and stating, in part, that:

'Instructions were given me to reserve the horse ...'

John Felthouse also wrote to his uncle, stating that he was annoyed by the sale, as he had advised
Bindley that the horse had already been sold, and that he would try to recover the horse from the

At trial

The plaintiff succeeded.

Held on appeal

Justice Willes

There was no complete bargain at the time of the conversation between uncle and nephew. NOr
was there a complete bargain when the uncle wrote to the nephew stating, in part, 'If I hear no more
about him, I consider the horse mine at 30l. 15s.'

The uncle had 'no right to impose upon the nephew a sale of his horse for 30l. 15s. unless he chose
to comply with the condition of writing to repudiate the offer.'
The offer remained open at the date of the sale. On that date the auctioneer was told by the
nephew that the horse had already been sold and it was therefore clear that 'the nephew in his own
mind intended his uncle to have the horse at the price which he (the uncle) had named'. But this
intention had not been communicated to his uncle and he had done nothing to bind himself. As a
result, at this time nothing had been done to 'vest the property in the horse in the plaintiff' at the
time the horse was sold.

The subsequent correspondence has no legal effect.

Justice Byles

Agreed with Justice Willes

Justice Keating

Agreed with Justice Willes. His Honour noted that:

'as between the uncle and the auctioneer, the only question we have to consider is whether the
horse was the property of the plaintiff at the time of the sale on the 25th of February. It seems to
me that nothing had been done at that time to pass the property out of the nephew and vest it in
the plaintiff. A proposal had been made, but there had before that day been no acceptance binding
the nephew.'