[COURT OF APPEAL.]

W. F. HARRISON & CO. LTD. v. BURKE.

[Plaint No. H. 283.]

Assignment - Legal - Debt - Notice to debtor - Date of assignment wrongly stated - Law of Property Act, 1925 (15 & 16 Geo. 5, c. 20), s. 136 (1).

Notice to a debtor of assignment of the debt is not valid if the date of the assignment is wrongly stated in the notice.

On December 6, 1954, the defendant owed some £33 unpaid

instalments under a hire-purchase contract, and was further liable to pay in due course some £170 in respect of future instalments. On December 7, the creditors assigned to the plaintiffs a purported debt of £203 said to be owed by the defendants. The plaintiffs sent to the defendant a notice, dated December 6, but not dispatched until December 8, stating that "the debt amounting to £203" had been assigned to them by "an indenture dated December 6":-

Held, that the notice failed to comply with the requirements of section 136 of the Law of Property Act, 1925,¹ and was invalid, as the date of the assignment was misstated.

Stanley v. English Fibres Industries Ltd. (1899) 68 L.J.Q.B. 839 approved.

Semble, that the misstatement of the amount presently due also invalidated the notice.

APPEAL from His Honour Judge Harold Brown, sitting at St. Helens County Court.

The facts are stated in the judgment of Denning L.J.

W. G. O. Morgan for the plaintiffs.

The defendant did not appear.

DENNING L.J. Mrs. Burke carries on a confectioner's business in Wigan, and she arranged with dealers called Harrisons to supply her with a refrigerated counter. She could not pay the money down, so it was arranged on hire-purchase terms. The hire-purchase company was the Woodcock Hire-Purchase Co. In the result, Woodcocks let to her a refrigerated counter on a payment of £30 down and 24 instalments of £8 9s. 6d. a month until a total of £233 8s. would be paid; and her husband guaranteed the payments. The first £30 was paid, but no more, because there was a dispute as to the quality of the article. Nothing now turns on that. That hire-purchase agreement was dated August 19, 1954. By an assignment of December 7, 1954, the Woodcock Co. purported to assign to the Harrison Co.

"All those the several debts or sums of money now legally due and owing to 'the vendor'" - that was to the Woodcock Co. - "by the persons whose names and addresses and amounts of their respective debts are set forth in the schedule hereunder written";

and in the schedule was put the names of Mr. and Mrs. Burke, and the amount £203 8s. That is the date of the assignment. The date when it was executed, as appears from the document, was December 7, 1954. But apparently the day before that, on December 6, 1954, a letter, purporting to be a notice of assignment, was drawn up by Harrisons, dated

1 Law of Property Act, 1925, s. 136: "(1) Any absolute assignment by writing under the hand of the assignor ... of any debt or other legal thing in action, of which express notice in writing has been given to the debtor ... is effectual in law ... to pass and transfer from the date of such notice - (a) the legal right to such debt or thing in action; (b) all legal and other remedies for the same; and (c) the power to give a good discharge for the same without the concurrence of the assignor: ..."

December 6, 1954, and addressed to "Mrs. A. V. Burke."

"Dear Madam, We hereby give you notice that by an indenture dated December 6, 1954, the debt amounting to £203 8s. owing by you to Woodcock Hire-Purchase Co. of Woodcock Street, Wigan, has been assigned to us absolutely and the debt is now due and owing to us. Also take notice that if you pay the amount or any part thereof, to any person other than ourselves or our authorized agent after receipt of this notice, you will still be liable to us for the amount. Yours faithfully, for W. F. Harrison & Co. Ltd."

That letter was not dispatched to Mrs. Burke on December 6. It was sent by Harrisons to their solicitors, who sent it off to her on December 8, and it reached her on December 9.

The whole question in this case, as it comes before us, is whether that is a valid notice of assignment such as to transfer to Harrisons the legal right to sue for the debt. I ought to point out at once that the sum owing at that date of December 7, 1954, was not £203 8s., as stated in the assignment, but only the instalments which had then accrued due - £33 18s., and so the notice of assignment did not give the right figure for the debt. Further, apart from that, it gives the wrong date of the assignment: it said that the indenture was dated December 6, 1954, whereas the only assignment produced to the court is one dated December 7, 1954. The question is whether that error in giving the date of the assignment makes the notice bad.

In 1899, in Stanley v. English Fibres Industries Ltd.,¹ it was held by Ridley J. that if the date given for the assignment is bad, the notice does not comply with the requirements of the statute. I find myself in agreement with that decision. It is only necessary to read section 136 of the Law of Property Act, 1925, to realize that the notice in writing of the assignment is an essential part of the transfer of title to the debt, and, as such, the requirements of the Act must be strictly complied with, and the notice itself, I think, must be strictly accurate - accurate in particular in regard to the date which is given for the assignment; and even though it is only one day out, as in this case, the notice of assignment is bad.

I need not say anything about the amount of the debt, which in this case was put at £203 8s. when it was in fact only £33 18s.; but, as at present advised, I should have thought the notice of assignment ought to state the debt accurately too, because, after all, we are dealing with a transfer of title and the requirements of the Act must be strictly complied with. I find myself in agreement with the judgment of the county court judge that the assignee in this case did not prove a right or title in himself to this debt in accordance with the statute, and I think the appeal must fail.

1 (1899) 68 L.J.Q.B. 839.

MORRIS L.J. I agree. A question might be raised in regard to the assignment itself, which is an assignment of the debts or sums of money referred to in the schedule. The schedule refers to a debt owing from Mrs. Burke of £203. At the date of the assignment there was not a debt of £203. But we have not had argument in regard to the validity of the assignment itself, and so I express no opinion in regard to it. We have been concerned with the question as to whether there has been a valid notice in writing of the assignment. The section requires express notice in writing, and the section provides that after the giving of "express" notice in writing, the assignment "is effectual in law ... to pass and transfer from the date of such notice - (a) the legal right to such debt or thing in action," etc.

Now, my Lord has read the terms of the notice in writing in this case, and it refers to the debt amounting to £203. If this is a good notice in writing, it would seem to be a notice as from the date of which there would be a "legal right to such debt," namely, a debt of £203. But there was not a debt of £203.

But again I do not think it necessary to decide this case on a consideration of the points that arise in regard to that aspect of the matter. I think the case can be decided by reference to the question of the date. The notice is dated December 6. Whether the purported assignment was good or not, it was not in existence on December 6. The purported assignment came into existence on December 7. But it seems to me that it is necessary to comply with the section, and I think that a notice given on December 6 purporting to be a notice in reference to an assignment dated December 6, when there was no such assignment in existence, was, therefore, not a good notice to enable the assignment that came into existence the following day to be effectual to pass the legal right to the debt assigned. I therefore agree that the judge came to a correct conclusion.

PARKER L.J. I also agree.

Solicitors: R. I. Lewis & Co., for Goldrein & Co., Liverpool.

F. R. D.