Brown & Davis Ltd v Galbraith

[1972] 3 Aller 31

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(Judgment by: Buckley J)

Brown & Davis Ltd v
Galbraith

Court:

Judges: Sachs J

Buckley JCairns LJJ

Case References:
Charnock v Liverpool Corpn - [1968] 3 All ER 473
Cooter & Green Ltd v Tyrrell - [1962] 2 Lloyd's Rep 377
Davis (Godfrey) Ltd v Culling - [1962] 2 Lloyd's Rep 349
Reigate v Union Manufacturing Co (Ramsbottom) Ltd - [1918] 1 KB 592

Judgment date: 26 April 1972

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Judgment by:
Buckley J

I agree. The crucial part of the judgment of the learned county court judge is that where he dealt with the contractual position between the parties. He reached the conclusion, and rightly reached the conclusion I think, that two contracts were here involved, one between the plaintiffs and the insurance company, and one between the insurance company and the defendant, the owner of the car. That view, without going into details as to the nature of the contracts, is of course consistent with the decision of the Court of Appeal in the Charnock case. Then the learned judge, having said that there was clearly an implied contract between the plaintiffs and the defendant, as owner of the car, that the work should be done with reasonable skill and within a reasonable time, went on to ask himself the question whether there was not also as part of the contract a term between the defendant and the plaintiffs under which an obligation rested on the defendant to pay for the repairs if the insurance company did not do so, and he came to the conclusion that there was. He put the matter in this way:

'Ought it to be implied? My view is that in this case, it should. Just as there is the implied promise by the repairer to carry out the work properly and in a reasonable time, so there is in the first instance an implied promise by the car owner to pay for the repairs, up to the limit eventually agreed, and that limit is fixed with the help of the insurance company engineer or assessor. That primary liability of the car owner to pay, certainly to pay if the insurance do not, is not discharged by the repairer also getting from the insurance company a promise to pay. Both the car owner and the insurance company were liable as to the £165 and the £5 towing and the cost of the parts.'

The learned judge there treats the matter as one of implication, and the question that has to be considered, therefore, is whether there were here any grounds to justify making such an inference. Cairns LJ has already indicated the relevant circumstances of the case, and I need not detail those again. I agree that the circumstances which he has referred to in the judgment just delivered are the circumstances which are relevant to have in mind in considering whether such an inference should be drawn.

Now, the inference of such an implied contract can, in my judgment, only be drawn if it is a matter of necessary inference, ie if it is an inference which the business realities of the situation really make necessary to make sense of the dealings between the parties so that they can be implemented in a sensible manner. In my judgment, there is no sufficient material to be found either in the documentation in this case or in the oral evidence of the witnesses to support such an inference. On the contrary, it seems to me, with due respect to the learned county court judge, that all the indications, such as they are, are to the contrary. None of them, individually, is such as to make the matter clear beyond a peradventure, but taking them together, in my judgment, they clearly indicate that the arrangement between the parties in this case was that the plaintiffs would look to the insurance company for payment for the repairs, except to the extent of the excess, and that they would look to the insurance company for payment for the towing, except to the extent of £4 10s.

That view of the agreement or agreements between the three parties is consistent not only with the story which is told by Mr Davis in his oral evidence but it is consistent with the documentary history of the matter, and particularly with the way in which the work was invoiced by the plaintiffs. Of course, things which occur after the date which the contract must have been entered into cannot alter the nature of the contract, but they may very well form valuable evidence showing what the parties conceived the contract to be. In my judgment, taking into account all the relevant circumstances in this case, there is insufficient material to found the implication on which the learned county court judge based his decision. On the contrary, the evidence shows that no such implication can properly be drawn. For those reasons I agree with the order suggested by Cairns LJ.