Brown & Davis Ltd v Galbraith

JurisdictionEngland & Wales
JudgeLORD JUSTICE SACHS,LORD JUSTICE BUCKLEY
Judgment Date26 April 1972
Judgment citation (vLex)[1972] EWCA Civ J0426-2
CourtCourt of Appeal (Civil Division)
Date26 April 1972
Brown & Davis Limited
(Plaintiffs) (Respondents)
and
F.R. Galbraith (Male)
(Defendant) (Appellant)

[1972] EWCA Civ J0426-2

Before:

Lord Justice Sachs

Lord Justice Buckley and

Lord Justice Cairns

In The Supreme Court of Judicature

Court of Appeal

(Civil Division)

(On appeal from the Croydon County Court)

MR. M.G. AUSTIN-SMITH (instructed by Messrs. D.J. Griffiths & Co., Bromley) appeared on behalf of the Defendant/Appellant.

MR. H. M. MORGAN (instructed by Messrs. Percy Holt & Nowers, Croydon) appeared on behalf of the Plaintiffs/Respondents.

LORD JUSTICE SACHS
1

I will ask Lord Justice Cairns to deliver the first judgment. LORD JUSTICE CAIRNS: This is an appeal from a judgment of Judge Granville Slack given at the Craydon County Court on 18th October of last year. The action before him was an action by car repairers against the owner of a motor car for repairs to that car, which had been damaged in a collision. The Defendant counterclaimed for delay in executing the repairs and for defective workmanship. In the result, the learned County Court Judge gave judgment for the Plaintffs for £402.74 on the claim, gave judgment for the Defendant for £51 on the Counter-claim, and made an order for costs on Scale 3 in favour of the Plaintiff, awarding no costs on the Counterclaim to the Defendant.

2

The appeal refetes only to the claim. It is the Defendants appeal, and he contends that he was under no liability, on the ground that it was not he but only his insurers to whom the Plaintiffs gave credit. Tht reason for this action having been started may well have been that the Defendant waa in the first instance not satisfied with the workmanship and refused to sign a satisfaction note, but the action assumed greater importance at a later stage because the insurance company was the Vehicle and General insurance Company, and they collapsed without having paid for the repairs.

3

It may seem, at first sight, an inconsistent attitude for the Defendant to deny any liability for the repairs while counterclaiming for failure on the part of the Plaintiffs to carry out the repairs satisfactorily and expeditiously, but as will appear hereafter it may well be that in such a case as this there are two contracts with the repairers in respect of the repairs, one, the contract with the insurance company under which they become liable to pay, and one with the owner of the motor car under which he is entitled to have the work properly done. The qusotion would then arise whether he too has under that contract an absolute or contingent liability to pay for the repairs.

4

There was not much dispute about the facts in this case. The car was, insured under a comprehensive policy. On the 3rd July, 1970, it was damaged by an accident. The Defendant had hadno previous dealings with the Paintiffs, but a friend of his knew them, and either the Defendant himself or that friendon his behalf rang up the Plaintiffs and asked them to come and tow the car into their garage. They did so, and on the following day, the 4th July, the Defendant went and saw a Mr. Davis, who was a Direotor of the Plaintiff Company. The Defendant told Mr. Davis that he was insured on a comprehensive policy, and it was arranged that the Plaintiffs should prepare an estimate for the repairs and send the estimate to the Defendant.

5

The Defendant said that he was told that the work would take a fortnight from the time when that or some other estimate was accepted by the insurers, but Mr. Davis denied that he had mentioned any such period. On the 8th July an estimate for the repairs in the sun of £186 had been prepared by the Plaintiffs and was sent to the Defendant, ar. estimate, that is to say, for £186 for the actual work, the necessary materials to be charged at the makers' prices.

6

The Defendant had no doubt in the meanwille made a claim on his insurance company, and on the 21st July an assessor employed by them went and saw Mr. Davis and took with him his company's estimate form. That is a form headed with the name of the insurance company. It gives the name of the owner of the car and other details, and it was filled up by the assessor after discussion and agreement with Mr. Davis. The sum of £165 was inserted for the labour costs. There was a reference to £5 for the towing of the vehicle, and then there were printed lines in this way: "To be collected by repairer - excess" - and there was filled in £25, that being the amount of the excess for which the car owner was liable under his policy, and then: "Contributions, £4.10s. to towing." That was because the insurance company took the view that the actual oharge of the garage for the towing, which was £9.10s. was excessive, that the distance was too great, and they were willing to pay the £5, but leaving the £4.10s. to be paid by the Defendant. Against those lines referring to the excess and the contribvtion, the items of £25 and £4.10s, there is this printed note: "N.B. The Insued's confirmation should be obtained concerning these items."

7

Now the assessor, having agreed the figures with Mr. Davis, authorised " the Plaintiffs to go on and do the work, and they did. The Defendant wanted the car to go on holiday on the 4th September. The repairs were not finishedby then, but he took it away, it being arranged that he should bring it back after the holiday. He did not in fact use it for the holiday because the dynamo fell off shortly after collected it, but he brought it back to the Plaintiffs on about the lfith September. The Plaintiffs went on with the repair work and told the Defendant that it was ready for collection on the 23rd October. He went to collect it, but having looked at it he was not satisfied that it had been properly repaired. The Plaintiffs would not willingly have let him take the car without signing a satisfaction note, without which they would be in difficulties in getting payment from the insurers, but the Defendant managed to drive the car off without being stopped.

8

The Plaintiffs on the same day wrote a letter to the Defendant in these terms: "Further to your telephone call to us this morning. Please find enclosed the satisfaction note which you omitted to sign when you collected your car from our premises this morning. Also enclosed is the invoice for insurance " excess and towing charges payable by you. I trust you will give this your earliest attention," and so forth. The actual invoice was not produced in evidence, but the nature of it is sufficiently shown by that letter. It was an/invoioe for the insurance exoess and the towing charges, that is to say, the £25 and the £4.10s.

9

On the 31st October the Plaintiffs rendered an invoice to the insurance company in which they set out £165 as the estimate for the work, £5 for towing, and a list of the items of spare parts that had had to be obtained, with their prices. Those figures added together made a total of £398-odd, with a deduction of £25 for the excess, leaving £373-odd which was their invoice to the insurance company.

10

The Defendant still not having signed tie satisfaction note, the Plaintiffs instructed solicitors who on the 5th November wrote to the Defendant in these terms: "We have been instructed to act by the above with reference to repairs carried out to your Elan motor car," and so on, "which you collected from our clients' premises on the 23rd October last without signing the insurance company's satisfaction note. The total amount of repairs plus towing charges amount to £402.148.9d. of which, under an exoess on your insurance policy,you are liable to the sum of £29.10s. and as you have not returned the satisfaction note to our clients, your insurers will not deal with the claim under the polioy. We write to inform you that unless your cheque for £29.10s. plus the completed satisfaction note are in our hands by Tuesday next, the 10th instant, proceedings will be commenced against you in the Croydon County Court for the full amount of the repairs, leaving you to recover, if possible, from your insurance company, but we trust you will now deal with this matter without delay so avoiding time and costs of further action."

11

The Defendant did not reply to that letter. A further letter was written in somewhat similar terms on the 11th Novamber, and another on the 10th December. In tho meanwhile, on the 4th December, the insurers wrote to the repairers: "We refer you to your invoice dated 1st December in respect of work carried out on ounccnarured's Lotus," describing it, "and we learn from both our engineers and our policyholder that he is dissatisfied with the work done and is, in fact, complaining of a scratch on the nearside rear, and we propose to deduct the sum of £15 to cover the question of spraying. We await your comments regarding the question of complaint."

12

The repairers, not being satisfied with that position, took out a summons in the County Court claiming the whole sum from the Defendant, though it was not I think served until some time later. In January, 1971, the Defendant had some work done by another garage at a cost of £19.50, which was what he considered neoessary to complete the work that the Plaintiffs should have done. He then, on the 22nd January, signed the satisfaction note, and would have sent it with a cheque for £10, being the difference between £29.50 and the £19.50 to the Plaintiffs, but the sending of it was delayed by the postal strike. On the 1st March the failure of the Vehicle and General Insurance Company was announced, and on the following day, the 2nd March, the Defendant took the satisfaction note and the cheque to the Plaintiffs' place of business, but they later returned it.

13

Now the only issue with which this court is concerned is: Did the Defendant, in the circumstances that have teen recited, contract to pay the Plaintiffseither as principal debtor or on the basis that if the insurance company did not pay, he...

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16 cases
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    ...helpful to begin by considering what the position would have been if the mandate had not been signed. He referred for guidance to Brown & Davis Ltd v Galbraith [1972] 1 W.L.R. 997, which he said was materially similar to the present case. On the facts of Brown & Davis Ltd v Galbraith, it w......
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    ...itself without the suggested implied term constitutes a workable, plausible or businesslike arrangement: Brown v. Davis and Galbraith [1972] 3 All E.R. 31. 375 On a study of the policy I am unable to conclude that the contract is not a workable, plausible and businesslike arrangement. It ma......
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