Davies v Sweet
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,The Master Of The Rolls,LORD JUSTICE DANCKWERTS |
| Judgment Date | 01 December 1961 |
| Judgment citation (vLex) | [1961] EWCA Civ J1201-4 |
| Court | Court of Appeal |
| Date | 01 December 1961 |
[1961] EWCA Civ J1201-4
In The Supreme Court of Judicature
Court of Appeal
From his Honour Deputy Judge Havard Evans Merthyr Tydfil County Court.
The Master of The Rolls
(Lord Evershed)
Lord Justice Donovan and
Lord Justice Danckwerts
MRM.E.F. CORIEY (instructed by Messrs Cullen & Co.) appeared as Counsel for the Appellant.
MR D. A. THOMAS (instructed by Messrs William A. Crump & Son, Agents for Messrs Gilbert, Robertson & Co., Cardiff) appeared as Counsel for the Respondent.
: I will ask Lord Justice Danckwerts to deliver the first Judgment.
This is an appeal by the defendant from a judgment of Deputy Judge Havard Evans dated 26th June, 1961, by which specific performance was ordered of a contract for the sale of land at Penydarren, Merthyr Tydfil, for £ 75. Both plaintiff and defendant are women and the defendant, Mrs. Sweet, is an Elderly woman between 70 and 80 years of age, who appears to have been rather liable to change her mind from time to time.
The principal issue in the case is as to the sufficiency of a memorandum of the contract of sale. The husband of the plaintiff, Mrs. Davies, died on the 16th February, 1960, when negotiations had already been entered upon by the plaintiff and her husband for the purchase of the land which they wished to use for, the purposes of a petrol filling station. On the 15th February, 1960, the plaintiff had been to see a firm of estate agents, F.A. Phillips & Son at Merthyr Tydfil and interviewed Mr. T. L. Phillips, a partner in the firm. It could appear that must have been offered for the land because Mr. Philips had had a letter from the defendant saying that the land worth was more than £ 50. According to the evidence of the plaintiff (who was the only witness to give evidence before the County Court Judge) Mr. Phillips said: "What about offering and the plaintiff said that she would ask her husband at the hospital. Unfortunately he died the following day. About fourteen days later the plaintiff saw Mr. Phillips again she said she wanted to continue her husband's, plans and-she agreed to pay for the land. She gave Mr. Phillips a-deposit of and he wrote out a receipt, which is claimed on behalf of the plaintiff to be a sufficient memorandum of the contract of sale. This is on notepaper which bears the name and address of F. A. Phillips & Son at the top with the description "Chartered auctioneer and estate agent" and "Valuers, surveyors", etc. The receipt is in these terms: "Received from Mrs. Iris Davies of 22, Mount Pleasant, St. Donlais, a deposit of for land on which Evans Row houses previously stood (bottom of Now Road, Penydarren) sold at subject to planning permission for petrol (station?) to be built F. A. Phillips & Son". Apparently the receipt was undated but the date 14th March, 1960, was added by the plaintiff's solicitors on the 20th September, 1960, and nothing appears to turn on that. According to the plaintiff's evidence, Mr. Phillips said a Mr. George had been to see him about the land but he (Mr. Phillips) was giving the plaintiff preference and he did not say anything about having to write to the defendant about the transaction.
The plaintiff applied for planning permission and it was granted to her on the 28th June, 1960. At some time in May 1960 Mr. Austin Phillips (a younger partner) told the plaintiff that the receipt was not a binding contract and that a Man had offered £ 100 for the land. The plaintiff protested that she had bought the land for Later she saw the older Mr. Phillips again and he asked if she would agree to pay £ 100. Apparently the plaintiff said that she was prepared to pay £ 100 and a letter from the defendant was read in which she offered to allow the plaintiff to pay the additional £ 25 by installments. On the 27th May, 1960, the plaintiff went to see the defendant who said that she would accept £ 100 and would accept £ 25 of it by installments. The plaintiff did not sign any document but the defendant gave the plaintiff a note for Mr. Phillips, which was in these terms: "Dear Mr. Phillips, Mrs. Davies has arrived here and I have told her that the sale may proceed. I am also writing to Mr. Martin Evans likewise. Yours truly I. M. Sweet". Mr. Martin Evans was the defendant's solicitor. But on the 31st May, 1960, the defendant wrote a long rambling letter to the plaintiff attempting to persuade the plaintiff to give up her purchase. On the 3rd June, 1960, the defendant wrote to Mr. Martin Evans: "Penydarren land. Dear Mr. Martin Evans, I now agree to sell the land to Mrs. Davies for £ 100. This is final.
Yours truly? I. M. Sweet". About the same time a contract was prepared by Mr. Martin Evans and sent to the plaintiff's solicitor but no contract was exchanged, and this appears to have come to nothing. It is not seriously suggested that any term "subject to contract" was included if there was a binding memorandum of a contract of sale. Apparently, at some time the defendant intimated to the plaintiff that Mr. George had offered her for the land and the plaintiff was asked if she would give and said she would, but the defendant changed her mind and nothing seems to have come of this The County Court Judge decided in the plaintiff's favor and ordered specific performance.
The points argued on this appeal on behalf of the defendant were: (1) The estate agents had no authority to contract and there was no evidence of any such authority. (2) There was no concluded agreement between the parties. (3) There was no sufficient memorandum of the contract to satisfy Section of the Law of Property Act, 1925.
As regards the first point, it is well settled that the function of an estate agent is to introduce a purchaser for property which it is desired to sell and ordinarily an estate agent has no authority to enter into or sign a contract on behalf of a vendor. But such authority may be conferred upon an estate agent expressly or May be inferred from the circumstances of the case. It seems to me that authority to enter into a contract on behalf of the defendant should be inferred from the circumstances of this case. The way in which Mr. Phillips (the elder) dealt with the plaintiff suggests that he had authority to enter into a contract for the sale of the property and to fix the price, and the letters written by the defendant seem to me to confirm this position – "the sale may proceed". No evidence was called on behalf of the defendant at all and consequently there is no affirmative evidence that the estate agents had not got authority to sell, and it is not suggested...
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