The defendant, a solicitor’s clerk, pleaded non est factum to an action on a mortgage deed he had signed. He said that he had thought it to be a deed transferring property held as nominee for the solicitor.
Held: The court should make distinction between a failure by the signatory to appreciate the character of the deed signed and its contents. After citing passages from Foster v MacKinnon, Warrington J said: ‘I pause there for a moment to remark that it seems to me to be essential to the proposition which is there stated that the contract which the signer means to execute should be of a nature entirely different from the contract in dispute.’ and ‘It will not be contended that if, in reading over a contract to a blind or illiterate person, the reader merely omits or misstates some material clause, the contract is altogether void.’ Afer further citations, he said: ‘Reading that with reference to the first passage I have quoted I think he means ‘ deceived as to the actual contents’ as expressing the nature and character of the document.’ The defendant had been told that they were deeds relating to the property to which they did in fact relate. ‘His mind was therefore applied to the question of dealing with that property. The deeds did deal with that property. The misrepresentation was as to the contents of the deed, and not as to the character and class of the deed. He knew that he was dealing with the class of deed with which in fact he was dealing, but did not ascertain its contents. The deed contained a covenant to pay. Under those circumstances I cannot say that the deed is absolutely void.’
Judges:
Warrington J
Citations:
[1907] 1 Ch 537
Jurisdiction:
England and Wales
Citing:
Cited – Foster v MacKinnon 1869
The court considered a plea of non est factum.
Held: Byles J set out situations where the plea was available: ‘It seems plain, on principle and on authority, that, if a blind man, or a man who cannot read, or who for some reason (not implying . .
Cited by:
Appeal from – Howatson v Webb CA 1908
The court accepted a plea of non est factum, approving the distinction made by the trial judge between the approval of the contents and the character of the deed executed. Cozens-Hardy MR said that he approved every word of Warrington J’s judgment. . .
Cited – Saunders (Executrix of the Will of Rose Maude Gallie, Deceased) v Anglia Building Society HL 9-Nov-1970
The Appellant had signed an assignment of her lease in favour of her nephew. She said she thought the effect of it would protect her right to continue to live in the house. She now appealed rejection of her plea of non est factum.
Held: The . .
Lists of cited by and citing cases may be incomplete.
Contract
Updated: 12 July 2022; Ref: scu.253145