Bolt & Nut Company (Tipton) Ltd v Rowlands Nicholls & Company Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE HARMAN,LORD JUSTICE DANCKWERTS |
| Judgment Date | 15 November 1963 |
| Judgment citation (vLex) | [1963] EWCA Civ J1115-2 |
| Court | Court of Appeal |
| Date | 15 November 1963 |
[1963] EWCA Civ J1115-2
In The Supreme Court of Judicature
Court of Appeal
(Interlocutory List)
Lord Justice Harman and
Lord Justice Danckwerts
MR S.E. BRODIE (instructed by Messrs Victor Mishcon & Co.) appeared as Counsel on behalf of the Appellants (Defendants).
MR I. WARREN (instructed by Messrs Cochrane & Cripwell) appeared as Counsel on behalf of the Respondents (Plaintiffs).
The Plaintiffs in this action, as their title indicates, are the manufacturers of bolts and nuts and like components. The Defendants are dealers in the same kind of article. They had an agreement between the two of them, at auy rate back to 1959, whereby stocks of those commodities were consigned by the Plaintiffs to the Defendants upon the footing that they remained the Plaintiffs' property until the Defendants Bold them, and the Defendants should then pay for them at certainprices above a minimum, and there was a running account between the parties. In 1962, the Plaintiffs, considering themselves to be creditors of the Defendants, issued a writ on the 13th August for a liquidated sum of £4,012. 12s. 73. for goods sold and delivered. And that writ, it is said, was served on the 22nd August by ordinary post, which is, of course, proper for a service on a limited company. But it did not reach the notice, apparently, of the directors. What happened was that, shortly after the issue of the writ, a sum of £1,659. 18s. 5d. on account, apparently, was paid by the Defendants to the Plaintiffs against their indebtedness. They did not enter any appearance to the writ, and by the 11th September they were in default of appearance so that judgment might be entered against them under Order 13, Rule 3. There was a meeting on the 11th September at which some kind of calculations were cade, as the result of which a cheque for £1,179. 19s.11d. was handed by the Defendants' representative to the Secretary of the Plaintiff Company. Whether that was supposed to be in whole or in part discharge of the debt, I do not know. That having been done, and notwithstanding that, on the 13th September the Plaintiffs – it is not said maliciously or anything of that sort but owing to, I suppose, sore miscalculation in their office – allowed their solicitors to sign judgment against the Defendants for the whole sum alleged to be due on the original writ less the £1,699. 18s. 5d., and that appears on the face of the judgment as entered: "The Defendants having paid the sum of £1,699. 18s. 5d. since the issue of the writ of summons herein and not having appeared…. It is this day adjudged" – and there was judgment for £2,312. 14s. 2d., the balance due without taking any account of the £1,179 cheque.
On the 15th September, the Sheriff, on instructions, attended on a fi. fa. on the Defendants' premises, and they then protested that they had made a payment which made the amount quite wrong, and also alleged that they did not know anythingabout the proceedings whatever. He, after some negotiation, withdrew, and the Plaintiffs expressed their regret, and the matter there rested for the moment. On the 18th September, after that event, the cheque was cashed through the clearing office, and that much of the debt wan thereby discharged.
From then onwards, until about July, 1963, there were negotiations between the parties about which I do not know anything, but presumably there was an attempt to reach an account stated, but that was not successful. On the 18th July, 1963, a new writ of fi. fa. was issued for the balance then due after giving certain credits for interim payments about which I do not know anything. The Sheriff took walking possession of the Defendants' premises. The Defendants were stirred up by this at last to action. On the 29th July they issued a summons to set aside the judgment. The summons to set aside the judgment alleges that the writ was not served, or was not received, by the Defendants, and that is a point no longer persisted in. There was a service, apparently, by post in the normal course. The Defendants are not in a position to prove that they did not receive the writ in the ordinary way. That, therefore, is out of the picture. But there was another ground on which the summons was grounded, namely, that the amount for which judgment was entered was in excess of the amount due at the time the judgment was entered, as the Plaintiffs well knew, and that the fi. fa. was also in excess of the amount due. That came before the District Registrar at Birmingham on the 16th September, and he then made this Order: "that upon payment into Court by the Defendants of £600 within 10 days the judgment entered against them in this action on the 13th day of September, 1962, be set aside with liberty to defend", and that the money remain in Court during the hearing of the action, and costs thrown away to be the Plaintiffs in any event.
Now the defendants were not satisfied with that Order, and they appealed to the Judge in Chambers, and they foundedtheir appeal on the same grounds – "be set aside for irregularity on the grounds specified in the Defendants' summons herein". That came before the learned Judge on the 4th October, though the Order was not passed and entered until the 14th, and the Judge then allowed the appeal and gave unconditional leave to defend to the Defendants, that is to say, he deleted the condition that there should be £600 paid into Court, and with that part of his Order there is no quarrel. But he also ordered that the costs of the application to the District Registrar and the costs thrown away be the Plaintiffs in any event, and the costs of the appeal be the Defendants' costs in the cause. It is against that that the Defendants now appeal.
Of course, that being an appeal as to costs only, it needed the leave of the Judge who made the Order, and Mr Brodie told us that he obtained such leave from the Judge ex parte without notice to his opponents. That seems to be quite irregular, but no point is taken about it now, although I should have thought that it should have been an application with notice. However that may be, the matter comes before us on the footing that the Judge gave leave to appeal against the costs part of his Order, and it has been canvassed before us on that footing.
Now what the Defendants say is this, that this writ was wrong in that it claimed a sum in excess of the amount due, or, if it did not do that, it ignored the conditional payment made by the cheque accepted by the Plaintiffs two days before, and that it was therefore irregular because it was asking for an amount in excess of the proper sum on a writ of this sort under Order 13, Rule 3. There is no doubt that the cheque was presented before the signing of the judgment. In my opinion, the acceptance of that cheque by the Plaintiffs did not amount to an absolute satisfaction pro tanto of that amount of the debt, but only a conditional one. It is true that there is only one affidavit, and that affidavit does talk about the cheque being accepted in discharge, and the Plaintiffs have not thoughtfit to deny that. But I do...
To continue reading
Request your trial
-
CSR South East Asia Pte Ltd (formerly known as CSR Bradford Insulation (S) Pte Ltd) v Sunrise Insulation Pte Ltd
...Weighing Machine Company v Walter [1891] WN 170 Hughes v Justin [1894] 1 QB 667 Bolt & Nut Co (Tipton) Ltd v Rowlands Nicholls & Co Ltd [1964] 2 QB 10 (CA) Legislation referred to Rules of Court, Order 3 r 3 Judgment GROUNDS OF DECISION 1 The issue in this appeal revolves around a default p......
-
Tan Chong Keng v Lim Bak Keng Vincent
...bill or note be given, not by the debtor, but by a stranger. Next, Mr Tan referred us to Bolt & Nut Co (Tipton) v Rowlands Nicholls & Co [1964] 2 QB 10. In that case, the plaintiffs entered judgment against the defendants in default of appearance without giving credit for the value of a che......
- Hii King Chiong v Ting Tiong Choon
-
Re Charge Card Services Ltd
...Company 34 Bevan 332; re Romer & Haslam (1893) 2 Q.B. 286; Allen v. Royal Bank of Scotland 134 L.T. 194; Bolt & Nut Company (Tipton) Ltd. v. Rowlands Nicholls & Co. Ltd. (1964) 2 Q.B. 30There is a similar presumption applicable to payments made by means of letters of credit. If the seller......