Herbert Berkley Haggis v Geoffrey Richmond Phillips, John Edward Trinder and Malcolm Harold Searle, Trading as John E. Trinder & Parthers
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE DENNING |
| Judgment Date | 02 July 1951 |
| Judgment citation (vLex) | [1951] EWCA Civ J0702-4 |
| Court | Court of Appeal |
| Date | 02 July 1951 |
[1951] EWCA Civ J0702-4
In The Supreme Court of Judicature
Court of Appeal
The Master of The Rolls
Lord Justice Denning
Mr. Justice Roxburgh
(Appeal of Herbert Berkley Haggis)
MR. J. R. B. FOX-ANDREWS (instructed by Messrs Wilkins, Rohan & Newman, 138a, King's Road, S. W. 3) appeared as Counsel for Herbert Berkley Haggis.
MR. JACK HAMAWI (instructed by Messrs Lewis, Lewis, Gisborne & Co., 10, 11 & 12, Ely Place, E. C. I) appeared as Counsel for Geoffrey Richmond Phillips, John Edward Trinder and Malcolm Harold Searle, Trading as John E. Trinder & Parthers.
In this case there is raised a question of the relationship between estate agents and an owner of house property - a question of the kind which has in recent years been much before the Courts. The claim in the action was for a sum of commission alleged to be due to the Plaintiffs, a firm of estate agents, engaged by the Defendant in connection with the sale of the latter's house, and the County Court Judge decided in the Plaintif's favour, awarding them a sum of £80 for commission.
It appears that on the 31st May, 1950, a representative of the Plaintiffs who had apprised himself of the fact that the Defendant was desirous of selling his house, No. 106, Brancaster Lane, Purley, called at those premises and had an Interview with the Defendant's wife.
In his short note of Judgment the County Court Judge expressed the view that the Plaintiffs' methods of seeking business were unprofessional and open to criticism: and he did not think that the gentleman who made the call to which I have alluded was a reliable witness with regard to the conversation that he had with Mrs. Haggis. It appears indeed that the Plaintiffs somewhat forced their attentions upon the Defendant in their search for business. There seems, however, no doubt (and the Judge so found) that Mrs. Haggis on this occasion on the 31st May, 1950, had, with her husband's authority, engaged the Plaintiffs as agents in regard to the sale of the house: but there is no evidence that there was then any discussion at all of the terms upon which they were so engaged. As he had promised to do, the representative of the Plaintiffs wrote to Mrs. Haggis on the same day, and the question at issue in the action largely turns upon the effect of the first two paragraphs of that letter. They were as follows:-
"Further to our representative's call upon you today, we thank you for your instructions to dispose of the above Freehold for the sum of £3,250 subject to contract, and vacant possession being given on completion of the purchase.
In the event of us being successful In Introducing a person willing to sign a contract to purchase at an agreed price, you will pay us the usual Scale Commission, namely 5 per cent on the first £300 and 2 ½ per cent on the residue."
Neither Mr. nor Mrs. Haggis saw fit to acknowledge or reply to this letter. It is indeed a not insignificant factor in the present case that both the Defendant and his wife preserved a most remarkable taciturnity and allowed other people to do many things and to alter their own position in the very natural belief that Mr. and Mrs. Haggis assented to what was being done.
At the beginning of August the Plaintiffs found a Mr. W. A. Wortham who was anxious to purchase the house. The figure which he was prepared to offer was less than the sum of £3,250 mentioned in the letter I have quoted, namely £2,900. But the Judge found as a fact that Mrs. Haggis had authorised the Plaintiffs with the Defendant's acquiescence to agree to sell for that figure. The next stage was that solicitors were introduced on behalf of the Defendant for the purpose of preparing the necessary contract and in due course the conveyance to Mr. Wortham. We were informed that the solicitors in question, Messrs W. F. Hollands & Son, were selected for the purpose by the Plaintiffs: and this may have been so. But there is no ground whatever for supposing that these solicitors did not act throughout in the proper interests of their client, and with perfect propriety. A member of the firm gaveevidence before the learned Judge, and although he took no note of his evidence the Judge has stated that he accepted that evidence as reliable.
Mrs. Haggis denied that she had ever given instructions to Messrs Hollands & Son. But as regards that matter, the finding of the learned Judge was that "in spite of her untruthful evidence to the contrary, she, on behalf of the Defendant and with his authority, instructed Messrs Hollands to act as Defendant's solicitors for the purpose of conveying the property to Wortham."
It is, in the circumstances, quite plain that these solicitors assumed, as they were entitled to assume, that the Defendant was willing to carry through the sale to Wortham, and that they had his authority for such purpose to prepare and agree forms of Contract and Conveyance containing provisions proper for the protection of their client. Although It appears from the letter of May 31st, 1950, part of which I have earlier quoted, that the Defendant was himself anxious to get another house in which to live, there is no evidence or suggestion that the solicitors were ever told by Mrs. Haggis or the Defendant that the latter's willingness to complete the transaction with Wortham was dependent upon their first obtaining other accommodation.
In consequence of the instructions they had received, Messrs Hollands & Son entered into communication with Wortham's solicitors, and it is necessary that I should refer somewhat In detail to that correspondence.
On the 18th August they wrote to Wortham's solicitors and enclosed "draft Contract for approval together with a copy for your use, and together also with a copy of the stipulations." They also enclosed an Abstract of Title.
Wortham's solicitors then made certain inquiries of Messrs Hollands & Son, and on August 31st the latter wroteto Wortham's solicitors as follows: "We see that we sent you the draft Contract herein for approval on the 18th instant. Please be good enough to let us hear from you so that the matter can proceed without further delay."
On September 4th Wortham's solicitors, in reply, returned one copy of the draft Contract, approved on behalf of their client subject to satisfactory replies to certain further inquiries which they enclosed with their letter. On the next day those inquiries were answered by Messrs Hollands & Son. On the 14th September Wortham's solicitors wrote to Messrs Hollands & Son as follows: "We now enclose Contract signed by our client and understand that he will be paying the balance of the deposit to Messrs John E. Trinder & Parthers within the next few days. We shall be obliged if you would send us the other part of the Contract signed by the Vendor as soon as this balance has been paid."
It does not appear from the evidence how or at what stage engrossments of the Contract in duplicate came into existence, but no comment was made by Messrs Hollands & Son upon the terms of the letter of September 14th. Indeed, in their reply they stated that "We trust we shall be in a position to send you our part of the Contract, together with Abstract of Title shortly."
The balance of the deposit was in fact paid shortly thereafter, and on the 20th September Wortham's solicitors wrote to him stating that they would arrange for "the exchange of Contracts". But since Messrs Hollands had not sent their part of the Contract to Wortham's solicitors the latter wrote on October 5th asking that they might have it. They observed that Wortham had no permanent home and was anxious to obtain possession as early as possible. On the 9th October Messrs Hollands & Son wrote:"Our client has not signed the Contract and although we have been urging him for the last seven to fourteen days to deal with the matter, he has not done so."
On the 12th October Worthem wrote a letter directly to Mr. and Mrs. Haggis, to which I shall later return. It is sufficient for present purposes to say that the Defendant in fact refused to sign his part of the Contract and that the sale accordingly went off altogether.
On these facts, as I have stated them, the learned Judge was of the opinion that Wortham had "signed a firm Contract binding himself to buy the property".
It was conceded by Mr. Fox-Andrews in his able argument that if this finding could be sustained his client must be liable for the commission claimed. But with all respect to the learned Judge, I am unable to agree with him in this respect. It appears from the Judge's note that the case of Eccles v. Bryant 1947, 2 All England Reports, 865, was cited to him. The Court of Appeal decided that in the circumstances of that case, where what may be called the strict conveyancing practice had been followed of executing the Contract in duplicate with a view to exchanging the parts, neither party was bound before the exchange had taken place. The learned Judge presumably was able to distinguish the present case from Eccles v. Bryant, and it is no doubt a question of fact in each case whether the parties intend to be bound at any stage short of exchange. For my part I am disposed to think from the correspondence which I have read that in this case, as in Eccles v. Bryant, Wortham's solicitors should be regarded as intending to follow what I have called the strict conveyancing practice, so that neither Purchaser nor Vendor would be bound until the Contracts had been exchanged. But there is, In my judgment, a more formidable difficulty. The conception that one party to aproposed sale of land should he "bound" when the other is not is familiar enough. The word "bound" is to be understood in the sense that the party described...
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