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C. A.

1903

LANGRISH

V.

WATTS.

Stirling L.J.

an admission by the defendant that he originally owed 1001., but he asserts that he subsequently gave the plaintiff a cheque for 401., because he kept the stub of the cheque, and he says that he is almost positive that he gave the plaintiff another cheque for 201., thus reducing the debt to 401. So far there is only an admission of an existing indebtedness to the amount of 401., which would not be enough, the question being whether there is any promise to pay the total amount of the original debt. He goes on to say that he cannot think how it is that his uncle did not credit him with the amounts paid, but that, if he hunts up his old bank-books, he will be able to trace up the amounts. I think that, on the fair construction of the whole letter, the effect of it is that the defendant admits that the plaintiff is entitled to 407., and, on "another division” taking place, he will at any rate send him that amount, but, if on a proper investigation it should turn out that the supposed payments of 401. and 207. on account have not been made, he is willing to pay the whole of what may appear to be due.

MATHEW L.J. I am of the same opinion. I think that the result of the correspondence taken as a whole is that the defendant admits that originally he owed 1007., and that he is in a state of uncertainty as to how the account stands between himself and the plaintiff; and that he agrees that the account shall be gone into, and that he will pay so much as may thereupon be found to be due. Having regard to the other expressions in the defendant's letters, I do not think that the promise to be inferred from the words "as soon as there is another division, I will send uncle some" can be confined to the 401. balance which is admitted by the letters to be owing. After what has already been said with regard to the earlier letters of June 27 and July 10, it is not necessary for me to refer to them again in detail, but the general effect of them, in my opinion, is that the defendant is willing that the matter should be gone into, and an account taken as between himself and the plaintiff. The later letters of October 29 and November 23 appear to me to be of similar import. In the letter of October 29 the defendant states that, if he is not down before long, he will "take other means of fixing up the

matter"; and then, after expressing astonishment that the plaintiff has no record of any amount paid to him, he proceeds to say that some of his papers have got mislaid or lost, which makes it very awkward, but he "may be able to get some information at the bank at Farnham," and anyway he hopes "to make a satisfactory settlement." Then in the letter of November 23 he says that he does not expect to be down for some time, and that, to save any trouble in the matter, he has placed it in his solicitor's hands "for adjustment." It appears to me that these later letters confirm the construction which we have put on the earlier letters. Various authorities have been cited. I think that the cases of Prance v. Sympson (1), Skeet v. Lindsay (2), and Sidwell v. Mason (3) entirely support the view we are taking. The defendant's counsel relied on the case of Buckmaster v. Russell. (4) But, when that case is looked at, it will be found that it is not in any way inconsistent with the construction which we are putting upon the letters in the present case. The earlier part of the letter in that case, which was relied upon as an acknowledgment of the debt, obviously did not amount to an acknowledgment that the debt was still owing, but on the contrary suggested that it had been paid. The letter then went on to say that, as the plaintiffs declared that the debt was not settled, the defendant was willing to pay the amount by instalments of 101. per annum, if that proposal met the plaintiffs' approbation. The proposal did not meet the plaintiffs' approbation. So the result was that there was neither an absolute acknowledgment of the debt, nor any fresh special promise. The decision in that case is not touched by anything that we are deciding in the present case. I think the appeal must be dismissed.

Appeal dismissed.

Solicitors for plaintiff: Prior, Church & Adams, for C. & W. Trimmer, Alton, Hants.

Solicitors for defendant: Kingsbury & Turner.

C. A.

1903

LANGRISH

0.

WATTS.

Mathew L.J.

(1) Kay, 678.

(2) 2 Ex. D. 314.

(3) 2 H. & N. 306.

(4) 10 C. B. (N.S.) 745.

E. L.

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C. A.

1903 March 18.

[IN THE COURT OF APPEAL.]

TORKINGTON v. MAGEE.

Chose in Action-Assignment-Contract to sell Reversionary Interest-Assignment by Purchaser of Benefit of Contract-Right of Assignee to sue Vendor for Damages-Legal Chose in Action-Judicature Act, 1873 (36 & 37 Vict. c. 66), s. 25, sub-s. 6.

APPEAL from the judgment of a Divisional Court (Lord Alverstone C.J., Darling J., and Channell J.) upon an appeal from the Mayor's Court, reported [1902] 2 K. B. 427. (1)

The action was brought by the plaintiff claiming to sue, by virtue of the Judicature Act, 1873, s. 25, sub-s. 6, as assignee of a contract made by the defendant with one Rayner to sell to the latter a reversionary interest in certain funds under a settlement, for damages for breach of that contract by the defendant.

The action was tried by the Common Serjeant, who held that there had been a breach of contract by the defendant, but that s. 25, sub-s. 6, of the Judicature Act, 1873, did not entitle the plaintiff, as assignee of the contract, to sue for damages in his own name. He therefore gave judgment for the defendant, but assessed the damages provisionally at 1007.

The Divisional Court held on appeal that the learned Common Serjeant's decision was wrong, and that the plaintiff was entitled to maintain his action; and they therefore ordered judgment to be entered for the plaintiff for 1007.

Montague Lush, K.C., and M. M. Macnaghten, for the defendant, contended that the case was not one of an assignment of a "legal chose in action" within the meaning of the Judicature Act, 1873, s. 25, sub-s. 6; and secondly that there

(1) It has been thought desirable to insert in the Reports this note of the result of the appeal, although the Court of Appeal did not, in reversing the decision of the Divisional Court, decide the point of law in respect of which the case was reported in the

King's Bench Division. After considerable discussion of the point, the Court came to the conclusion that it did not really arise, because on the facts there was no breach of contract by the defendant.

C. A.

1903

was no evidence of any breach of the contract by the defendant, inasmuch as the evidence conclusively shewed that neither the plaintiff's assignor, Rayner, nor the plaintiff himself, had been TORKINGTON ready and willing to carry out the contract, unless the defendant would comply with a requisition which he was not bound to comply with under the contract.

Stewart-Smith, K.C., and Sidney W. Clarke, for the plaintiff,

contra.

THE COURT (Vaughan Williams L.J., Stirling L.J., and Mathew L.J.) held that it was not necessary for the purposes of the appeal to decide whether, under s. 25, sub-s. 6, of the Judicature Act, 1873, the plaintiff, as assignee of the contract, was entitled to sue for damages for breach of the contract, if any, in his own name; for, assuming that he was, the evidence clearly shewed that there was no cause of action against the defendant, inasmuch as neither the plaintiff's assignor, Rayner, nor the plaintiff himself, was ready and willing to carry out the contract in accordance with its terms. They therefore allowed the appeal, and ordered judgment to be entered for the defendant.

Solicitor for plaintiff: J. W. Browne.
Solicitor for defendant: G. J. Fowler.

Appeal allowed.

v.

MAGEE.

E. L.

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1903 Jan. 16.

WIRRAL RURAL DISTRICT COUNCIL v. CARTER.

Streets (Streets and Buildings)-Private Street-Execution of Works by Local
Authority-Liability of Owner-Notice of Provisional Apportionment-
Public Streets Works Act, 1892 (55 & 56 Vict. c. 57), ss. 6, 12; Schedule,
Part I.-Public Health Act, 1875 (38 & 39 Vict. c. 55), s. 267.

Where works are executed by a local authority under the provisions of the Private Streets Works Act, 1892, it is a condition precedent to the right of the local authority to recover from an owner of premises in the street his apportioned share of the expenses that notice of the provisional apportionment of the estimated expenses, as well as notice of the final apportionment of the ascertained expenses, shall have been served upon him.

APPEAL from the judge of the Birkenhead County Count. The action was brought to recover the apportioned amount of expenses incurred by the plaintiffs in the execution of certain works under the Private Streets Works Act, 1892. The facts, which were not in dispute, shewed that the plaintiffs resolved with respect to a street in their district called Quarry Road to execute therein certain works, being private street works as defined by s. 6 of the Private Streets Works Act, 1892, and their surveyor duly prepared a specification of the works with plans and sections, and an estimate of the probable expenses, and a provisional apportionment of the estimated expenses among the premises liable to be charged therewith under the Act. In the provisional apportionment were included certain premises of which the defendant was in fact, though not to the knowledge of the plaintiffs, the owner. Notice under s. 6 of the Act of the provisional apportionment in respect of these premises was in March, 1901, sent by the plaintiffs to "The Heswall Quarry Company, Limited, D. Robinson, Manager," who were described as the owners, or reputed owners, of the premises in the provisional apportionment; Robinson, who received the notice, was the uncle of the defendant, and had at a previous date been tenant of the premises. No notice of the provisional apportionment was ever given by the plaintiffs to the defendant. On April 16, 1901, after completion of the works, a final apportionment of the expenses under s. 12 was

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