Ontract-Misrepresentatlon-Person relying on misrepresentation must prove

        .       that he was deceived by it

Contract-Mistake-Identity of other party

Defendant by falsely representing himself to plaintiff as the soli of
the famous Sharif Mukhtar induced the plaintiff to give his niece in mar-

• Court: Owen J.
• Court: C. C. G. Cummings J~

riage to the defendant, to lend him certain furniture items and to sell him

               goods on credit.                                                                              .

When plaintiff discovered that defendant was an imposter he entered
into an agreement with the defendant in which he agreed to forgo all claims
which he had against the defendant in consideration of defendant divorcing
plaintiff's niece and forgoing his claim to £E.50 paid on the occasion of
the marriage. The defendant divorced the plaintiff's niece. As soon as
this was done the plaintiff brought an action claiming recovery of the furni-
ture and money.

Held: (i) That the contract was not void for mistake because the
plaintiff intended to contract with the defendant and cannot be said to have
been mistaken as to his identity.

(ii) That. although there was a fraudulent misrepresentation the plam-
tiff was not deceived by it. The evidence establishes very clearly that
plaintiff knew the identity of the defendant before he concluded the agree-
ment.

Phillips v. Brooks [1919] 2 K.B. 243.

Action

The material facts of this case as they appear from the case
record are as follows:

The defendant presented himself to the plaintiff as being Moham-
med, the son of a certain holy man known as El Sherif Mukhtar.
The plaintiff' believed the defendant, treated him with great respect
and after some time the plaintiff agreed to give his niece to the
defendant in marriage. On the occasion of the marriage the defendant
obtained a loan from the plaintiff for house furniture to the value of
£E.54. After the marriage he started a current account with the
plaintiff and became indebted to him to the extent of £E.67.ooo
m/ms,

The defendant was soon discovered to be a mere imposter. The
plaintiff thereupon asked the defendant to divorce the plaintiff's cousin,
to return the furniture and to pay the account outstanding. After
some lengthy negotiations a settlement was concluded in the presence
of a number of acquaintences of both parties: This settlement was
. described as a "final sulh and discharge of liabilities between the
parties." The plaintiff agreed to forgo his claim to the furniture and
money. The defendant agreed to divorce the plaintiff's niece and to
give up his claim to a sum of £E.50.000 m/ms paid to the plaintiff
at the time of the marriage. As soon as the defendant divorced the
plaintiff's niece the plaintiff brought an action for recovery of. the
furniture and payment of the money outstanding.

Advocate: Labib Sorial . . . for plaintiff

April 17, 1931. Cummings J.: By an agreement dated June 6th,
1930 the plaintiff agreed not to sue the defendant upon the causes of
action on which he now relies. This action turns therefore upon the
validity of that agreement.

The plaintiff assails the agreement on three grounds:

(1) That when he made the agreement he believed the defendant
10 be the son of a highly respected deceased holy man called Sherif
Mukhtar, which belief was induced by the fraudulent misrepresenta-
tion of the defendant,

(2) That he received no consideration for his promises contained
in the contract.

(3) That even if the court should find that he was not deceived
as to the identity of the defendant, yet the agreement is void because
the plaintiff contracted not with the defendant but with the son of
the Sherif Mukhtar, a non-existent person.

Issued were joined on these points. Before any witnesses Were
called counsel for the plaintiff, on his attention being drawn to various
admissions of his client in the Police Magistrate's file, announced that
he would not continue on issue 1.

Issue 2 as to consideration was not referred to by Mr. Sorial in

        his summing up and I assume that it has also been ~opped.                     .

Issue 3 was argued by counsel in his final address when I allowed
also argument on issue 1 though strictly it had been abandoned.

Virtually there seems little left for me to decide but in case of
appeal I shall set out my view of the agreement of June 6th, 1930.

The parties to' this agreement were definite persons identified by
the witnesses to the agreement. One was the plaintiff, the merchant
EI Zein Sughariun, the other was the defendant who then went by
the name of Mohammed EI Sherif Mukhtar who had married the niece
of EI Zein. Indeed the object of EI Zein in entering into the agreement
was to procure the divorce of his niece which was accomplished. To
attain this end he gave up all the claims he now hopes to recover in
this action.

Assuming that the plaintiff believed defendant then to be the son
of Sherif Mukhtar, can the agreement-be .said to be void on the

of mistake? No, because to quote the words of Horridge J. in PhilUps
v. Brooks [1919] 2 K.B. 243, EI Zein "intended to contract With the
person present, and there was no error as to the person with whom he
contracted, although the plaintiff would not have made the contract if
there had not 'been a fraudulent misrepresentation."

In the case before this court was there a fraudulent misrepresenta- .
tion?

It is admitted that at that time the defendant held himself out to
be the son of the Sherif Mukhtar which he knew he was not.

But did this misrepresentation by the defendant actually deceive
the plaintiff? This in my opinion is the cause of this whole case. .

Plaintiff and defendant have given conflicting evidence in this
point. I place no reliance on. the evidence of either party. There
are however, in the file of the Police Magistrate on the trial of de-
fendant for defrauding the Sharia Court, certain statements - of the
plaintiff, admissions by him, which in my opinion determines this point
in favour of the defendant.

Firstly, plaintiff in his evidence at the trial and in the police
investigation said ,that .after he learnt that the defendant was an im-
poster he pressed for the divorce of his niece. This divorce was finally
agreed on by the . agreement now in dispute in consequence -of which
the certificate of divorce was obtained the very next day, J anuary 7th.

Secondly plaintiff put in a petition to the Governor of Khartoum
dated December 29, 1929 (ten days before the agreement now chal-
lenged) in which he, in no measured terms, definitely denounced the
defendant as an imposter and related his misdoings. In particular
there is mentioned the matter of the divorce which plaintiff· says he
has been unsuccessfully attempting to procure 'from the defendant.

Tejr days later the plaintiff made an agreement with this imposter
by wptch plaintiff gave up the claims on which he now sues and paid
£R10 to defendant in consideration of the defendant giving up an
,claims against the· plaintiff and divorcing the plaintiff's' nice. The
/ next day the girl was divorced. Plaintiff has eaten his" cake-he- nOW
, wants to have it.

It has been urged for the plaintiff thatit was only after the agree-
ment that the plaintiff had definite proof that the defendant was ¥o-
hammed Eisa Khatir. That may be so but the point in issue is-e-did