Muskham Finance Ltd v Howard: CA 1963

Non est factum limited but effective

K instructed a dealer to sell a car which K held under an hire purchase agreement. The dealer found a who wanted hire purchase terms. K signed, at the dealer’s request, a document for the purposes of the transaction. Later, the dealer told K he had sold the car, and asked him to sign a paper which the dealer said was the release note; pointing to the document, the dealer said ‘Just sign there and that will clear you with the vehicle.’ The document was on the dealer’s untidy desk, and only two or three inches of it was showing it’s heading ‘Indemnity form’ being hidden. The document was an indemnity, and to be signed by a person willing to act as a surety. K signed without looking at the full contents, although there was nothing to prevent him from doing so, and he was literate. K thought it was for passing his right to the dealer and protecting the dealer when he resold the car. The buyer on the resale defaulted. In the action against K to enforce the indemnity, K pleaded non est factum.
Held: What has to be established, if a plea of non est factum is to succeed, is that the misrepresentation which caused the signature was a misrepresentation of the character and class of the document in question, and not a misrepresentation simply as to its contents. The document signed by K was a document wholly different in its class and character from that which he intended to sign, and the case was not a case of misrepresentation only as to the contents of the document; Accordingly the plea of non est factum succeeded and the indemnity was not enforceable against K.
Donovan LJ said that: ‘The plea of non est factum is a plea which must necessarily be kept within narrow limits.’

Donovan LJ
[1963] 1 All ER 81, [1963] 1 QB 904
England and Wales
Cited by:
CitedSaunders (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 . .

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Leading Case

Updated: 01 November 2021; Ref: scu.253149