Glessing v Green
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE RUSSELL,SIR JOHN PENNYCUICK |
| Judgment Date | 21 February 1975 |
| Judgment citation (vLex) | [1975] EWCA Civ J0221-3 |
| Docket Number | 1963 G. No. 125 |
| Court | Court of Appeal (Civil Division) |
| Date | 21 February 1975 |
[1975] EWCA Civ J0221-3
In The Supreme Court of Judicature
Court of Appeal
(On Appeal from The High Court of Justice Chancery Division (Group A))
Lord Justice Russell
Lord Justice Stamp and
Sir John Pennycuick
MR. M. C. NOURSE, Q. C. and MR. J. C. JOPLING (instructed by Messrs. Payne, Hicks, Beach & Co., Solicitors, London) appeared on behalf of the Plaintiffs/Respondents.
MR. G. M. GODFREY, Q. C. and MR. EVANS-IOMBE (instructed by Messrs. Fearless de Rougement & Co., Solicitors, London) appeared on behalf of the Defendant/Appellant.
MR. D. HUNTER, Q. C. and MR. N. CHAMBERS (instructed by Messrs. S. P. Rugg & Co., Solicitors, London) appeared on behalf of the Third Party.
I will ask Sir John Pennycuick to deliver the judgment of the court.
This is an appeal by the first Defendant, John Richard William Green from an Order of MR. Justice Plowman made on the 20th December 1973 whereby he ordered that registration by the first Defendant of certain land charges upon property at Little Common Bexhill be vacated and dismissed a counterclaim for delivery of possession of the property.
We mention at this stage that the first Defendant joined a firm of Solicitors Messrs. D. W. Harrison and Yearwood in the action by way of third party proceedings. The claim in these proceedings was dismissed by Plowman J. and early in the hearing in this Court the appeal was abandoned as against the third parties. We need not mention the third party claim again and will refer to the first Defendant simply as the Defendant.
We will set out shortly the facts as they appear upon the pleadings and documents and as they were found by MR. Justice Plowman. The Learned Judge rejected almost the whole of the Defendant's evidence and accepted that given on behalf of the Plaintiffs.
The Plaintiffs who are mother and daughter owned severally three plots of land at Little Common. In 1967 the Defendant, a neighbour, entered into negotiations with them for the purchase of these plots, his purpose being apparently to prevent building. The Plaintiffs and the Defendant came to terms on a price of £6000 with an option in the Second Plaintiff to re-purchase should the Defendant desire to sell. Both parties instructed the firm of D. W. Harrison & Yearwood to act in the transaction, which was to be effected by Conveyance. There was no writtencontract and the Judge was not satisfied that there was ever a concluded oral contract. We proceed on the basic that there was no antecedent contract. MR. Noakes, a legal executive with Messrs Harrison & Yearwood, handled the matter and prepared a draft Conveyance. The draft was in common form. After recital of agreement to sell at the price of £6000 the Vendors are expressed in consideration of the sum of £3000 paid to each of them to convey the respective parcels to the purchaser and there is an option to re-purchase. The draft concluded with the usual form of execution including the words 'signed sealed and delivered' MR. Noakes sent the draft to the Plaintiffs, the date being left blank. On the 22nd March 1967 the Plaintiffs executed the draft by signature and presumably sealing. We will refer to delivery later. They either kept the Conveyance or sent it back to MR. Noakes. It cannot now be found, but a copy of the draft is available. MR. Noakes prepared a completion statement. We will refer to this Conveyance as "the First Conveyance".
There then supervened a new development. The Defendant went to see MR. Noakes, and for his own good - or bad - reasons insisted that the consideration stated in the Conveyance should be £2000 only and that he should pay the balance of £4000 on the side, his intention being apparently to pay in notes of small denomination. MR. Noakes not unnaturally demurred but was over-persuaded and proceeded to prepare a new Draft Conveyance in substantially the same terms as the First Conveyance, but with £2000 substituted for £6000 as the price. He sent this draft to the Plaintiffs, the date again being left blank. The Plaintiffs obligingly fell in with the Defendant's wishes, executed the Conveyance on some date between the 7th and 13th April 1967 and returned it to MR. Noakes. On this occasionthe Defendant did execute the Conveyance. MR. Noakes prepared a Completion Statement showing £2045 due from the Defendant, who gave MR. Noakes a cheque post-dated to 1st July 1967. On the instructions of the Defendant MR. Noakes did not present the cheque and the Defendant has never paid anything at all to the Plaintiffs;. This Conveyance was destroyed "by MR. Noakes at a later stage on the suggestion of the Plaintiffs, hut a copy of the draft is available. We will refer to this Conveyance as "the Second Conveyance".
On 21st August 1967 the Defendant wrote to MR. Noakes a letter in the following terms: "I duly, received your letters of 8th, 11th and 15th August on my return home at the weekend and I can only express my surprise at the contents of them. So far as I am concerned the sale and purchase of the whole field together with the woodland adjoining the south boundary of 'The Coppice' was completed when the Conveyance was signed by the vendors and by myself in your office. This being the case there appears to be no reason for reopening the transaction and I shall be glad to have your confirmation to this effect". This letter must be read in the light of certain previous correspondence and it may well be that the Defendant was not intending to repudiate the obligation to pay at any rate the price of £2000 under the Second Conveyance. However he still did not in fact make any payment at all and on the 4th September 1967 Messrs. Harrison & Yearwood sent him a notice in the following terms: "We, D. W. Harrison & Yearwood of 13 Eversley Road Bexhill in the County of Sussex as Solicitors for and on behalf of Florence Glessing and Pamela Catherine Ward-Jones both of Howards Lodge, Barnhorn Road Bexhill in the County of Sussexhereby give you notice as follows:- 1. The said Florence Glessing and Pamela Catherine Ward-Jones are willing and ready to complete the Conveyance to you of the fee simple of the pieces or parcels of land in Maple Walk at Little Common Bexhill aforesaid in accordance with the terms of any agreement for the sale and purchase thereof which may subsist between them the said Florence Glessing and Pamela Catherine Ward-Jones and you. 2. The said Florence Glessing and Pamela Catherine Ward-Jones request you forthwith to pay the agreed purchase money together with interest thereon in accordance with the terms of any such agreement. 3. If you fail to comply with this Notice within Twenty-eight days from the date hereof the said Florence Glessing and Pamela Catherine Ward-Jones will sell or re-sell the said land as the...
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