Re Davis (S.) & Company Ltd
| Jurisdiction | England & Wales |
| Date | 1945 |
| Year | 1945 |
| Court | Chancery Division |
Bailment - Deposit of furniture by bailor - Voluntary liquidation of storage company - Bailor not notified - Enemy action - Damage to and loss of furniture - Sale of company business by liquidator - No notice to bailor - Action for damages by bailor - Judgment - Summons for order on liquidator for payment - Priority - Onus of proof.
The applicant stored his furniture with a company which, eight months later, in May, 1940, went into voluntary liquidation without giving notice to him. The storage premises were thrice damaged by enemy action, namely, in September, October and November, 1940. In November, 1941, the liquidator sold the company's business and, in February, 1942, the purchaser transferred it to another company, on each occasion without notice to the applicant. On March 29, 1943, the applicant removed his furniture and found that some articles were missing and some damaged. He therefore sued both companies for damage and negligence. On the first company's defence being struck out, he discontinued the action against the second company, signed judgment against the first company for the amount of the damage, and, in December, 1944, issued a summons for an order that the liquidator pay him the amount of the judgment and taxed costs in priority to the company's general debts and liabilities, and in full before payment of any dividend to its pre-liquidation creditors. The evidence of the liquidator was that he could not ascertain whether the loss or damage occurred before, during or after the time when he was carrying on the business, and the registrar held that the onus of proof that it took place after the commencement of the liquidation was on the applicant and that he had not discharged it. He therefore dismissed the summons:—
Held, that the furniture was not delivered up in proper condition on the due date, which was after the commencement of the liquidation; that the applicant had proved that the liquidator had adopted the contract; and that, even if the onus was at first on the applicant to establish his right to priority, ultimately it was on the liquidator to excuse the breach of contract, and he had failed to do so.
MOTION.
In September, 1939, the applicant deposited furniture for storage with the company (hereinafter called “the first company”) which, in May, 1940, went into voluntary liquidation, of which notice was not given to the applicant. On September 19 and 20, October 21, and November 16 and 17, 1940, the premises where the furniture was stored were damaged by enemy action. On November 25, 1941, the liquidator sold the first company's business to a purchaser who, in February, 1942, transferred it to a second company, the applicant not being given notice of either the sale or the transfer. The applicant paid storage charges to the first company up to and including October 9, 1942. On or about March 29, 1943, he removed the furniture, and found that some articles were missing, some damaged. On June 16, 1943, he began an action against both companies for damages for breach of contract and negligence. On November 10, 1944, the first company's defence was struck out. The applicant thereupon discontinued his action against the second company. On November 23, 1944, he signed judgment against the first company for 601l. 15s. 6d., and on...
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