Walter & Sullivan Ltd v J Murphy & Sons Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE HODSON,LORD JUSTICE PARKER |
| Judgment Date | 16 March 1955 |
| Judgment citation (vLex) | [1955] EWCA Civ J0316-2 |
| Docket Number | 1953 W. No. 2392 |
| Court | Court of Appeal |
| Date | 16 March 1955 |
[1955] EWCA Civ J0316-2
Lord Justice Hodson and
Lord Justice Parker
In The Supreme Court of Judicature
Court of Appeal
(Interlocutory List)
Counsel for the Appellants: MR S. L. Lewis (for Mr J. Perrett), instructed by Messrs Hicks Arnold & Co.
Counsel for the Respondents: Mr R. A. Stewart Brown, instructed by Messrs Masons.
The judgment of the Court will be given by Lord Justice Parker.
The Appellants, who are plaster-work contractors, in 1952 carried out certain work as subcontractors of the Respondents, who are builders. Disputes arose as to the amount due from the Respondents, and in July, 1953, the present proceedings were brought by the Appellants alleging that the Respondents were indebted to them in the sum of £1,808. Mcanwhile the Appellants had become indebted to their suppliers, Hall & Company, in the sum of £1,558, and desired to get further materials from them for current work. Accordingly, an arrangement was made whereby the Appellants were to give the Respondents an irrevocable authority to pay Hall & Company £1,558 out of the £1,808 alleged to be due from the Respondents, and Hall & Company were to continue to supply material to the Appellants. The arrangement was carried through by means of two documents dated the 1st September, 1953.
The first document signed by Hall & Company was as follows: "In Consideration of your today giving an irrevocable authority to J. Murphy & Sons Limited of 43, Charteris Boad, Finsbury Park, N. 4. to pay to us the sum of £1,558. 17. 8d. (One thousand five hundred and fifty eight pounds, Seventeen shillings and eightpence) from monies owing by them to you, as therein more particularly mentioned We Hereby Undertake with you that we will forthwith pay over to you any monies which are paid to us by J. Murphy & Sons Limited pursuant to such irrevocable authority after your debt to us of £1,558. 17. 8d. or such part thereof as may from time to time be owing, has been fully repaid either by you or out of the monies which we receive from time to time from the said J. Murphy & Sons Limited or their assigns."
The second, addressed by the Appellants to theRespondents, was in this form: "We hereby authorise and request you to pay to Hall & Co. Ltd. of Victoria Wharf, Croydon, Surrey the sum of £1,558.17.8d. from moneys owing by you to use in respect of work done on your behalf under the above mentioned contract. The receipt of Hall & Co. Ltd. shall be a good and sufficient discharge to you in respect of the payment made hereunder. This authority is given for valuable consideration to secure payment of a debt and is irrevocable by us unless Hall & Co. Ltd. shall consent in writing to the revocation thereof."
On the 21st October, 1953, the Respondents delivered their Defense and pleaded, inter alia, that this arrangement of which they had notice amounted to an assignment of £1,558, part of the alleged debt, and that both as regards the £1,558 and any excess no claim lay without the joinder of Hall & Company.
The matter was tried as a preliminary issue by the Official Referee, who uphold the Respondents' plea, and stayed the proceedings. Against this order the Appellants now appeal.
It is, we think, clear that the arrangement between the Appellants and Hall & Company amounted to an equitable assignment by way of charge of part of the debt alleged to be due from the Respondents. It was in a form similar to the documents in question in In re Kent & Sussex Sawmills, Ltd., which is reported in 1947 Chancery at page 177, and, no doubt, as a result of that decision the charge was duly registered under Section 95 of the Companies Act, 1948. Normally, of course, it is the assignee who, if necessary, seeks to recover the debt, and in a case where, as here, Section 136 of the Law of Property Act, 1925, does not apply, he would, if the right assigned was equitable, have to join the assignor in order to bind him at law, orif the right was a legal right he could compel the assignor to allow his name to be used.
In the present case, however, it is the assigner who is seeking to recover, and in his own right, and it is strongly urged that he is entitled to do so without joining the assignee. We think what that is an impossible contention. The whole object of the notice to the debtor is to protect the assignee. After receipt of that notice the debtor pays the assigner athis peril. Reliance was, however, placed on certain words of Lord Justice Mathew in Hughes v. Pump House Hotel Company, Ltd., which is reported in 1902 2 King's Bench Division at page 190. In that case the Plaintiff, Hughes, a builder, had assigned to his bankers all monies due from the Defendants, the building owners. The question was whether the assignment was an absolute assignment within Section 25, sub-section (6), of the Judicature Act, 1873, in which case the notion should have been in the assignee's name or whether it was an assignment by way of charge only, in which case, as Lord Justice Mathew said, "the action must be in the name of the assignor." In our opinion, however, he was not saying that the assignor, the Plaintiff, was entitled to sue for his own benefit. The question was merely whether the action should have been brought by the assigned in his own name or by the assignee in the name of the assignor.
It was further said that once the Appellants in the present proceedings recovered judgment the debt would merge in the judgment debt, and that accordingly the Respondents could not thereafter be sued by Hall & Company. The Court, however, will not give judgment for the Appellants when...
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Re Parmalat Capital Fin Ltd
...v. Bank of England, [1996] Q.B. 292; [1995] 4 All E.R. 312, distinguished. (21) Walter & Sullivan Ltd. v. J. Murphy & Sons Ltd., [1955] 2 Q.B. 584; [1955] 1 All E.R. 843, distinguished. Legislation construed: Companies Law (2004 Revision), s.96: The relevant terms of this section are set ou......
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