Smith v Mansi
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SELLERS,LORD JUSTICE DANCKWERTS,LORD JUSTICE RUSSELL |
| Judgment Date | 22 October 1962 |
| Judgment citation (vLex) | [1962] EWCA Civ J1022-1 |
| Court | Court of Appeal |
| Date | 22 October 1962 |
[1962] EWCA Civ J1022-1
In The Supreme Court of Judicature
Court of Appeal
(From: Mr. Justice Wilberforce)
Lord Justice Sellers
Lord Justice Danckwerts and
Lord Justice Russell
Mr. LIONEL EDWARDS, Q. C. and Mr. ADRIAN HEAD (instructed by Messrs. Hatten, Asplin, Jewers & Glenny, Barking, Essex) appeared on behalf of the Appellant (Plaintiff).
Mr. N. BROWNE-WILKINSON (instructed by Messrs. Sackville Hulkes, Hornchurch, Essex) appeared on behalf of the Respondent (Defendant).
Before I had written a judgment I had the advantage of reading the judgment Lord Justice Danckwerts is about to deliver, in which he states the material facts and expresses, no less decisively, my own views on the issues raised in this appeal. Lord Justice Russell agrees with these opinions and in these circumstances it is with no disrespect to the carefully reasoned and clear judgment of the learned judge that I do not myself give another full judgment concurring in allowing the appeal and granting the plaintiff the remedies sought.
Once the view is taken from the facts and the inferences from the facts that the parties were agreed on all matters when Mr. Mansi on the 5th July, 1959, put his signature to the written contract form already signed by Mr. Smith, then the case is clear. I prefer the view that the parties were then agreed on the completion date of the 30th September, 1959. This had been orally agreed at the outset and the solicitor's letter which accompanied the contract form sent to Mr. Smith and passed on by him to Mr. Mansi, in effect, asked for confirmation of this. By their conduct the parties confirmed and accepted this date, whatever Mr. Mansi may have said or thought to himself at the time of the signing, which being uncommunicated to Mr. Smith was wholly ineffective and indeed inadmissible as evidence.
This view is confirmed by what the solicitor did when in anticipation of a further visit from Mr. Mansi he filled in the completion date as the 30th September, 1959, within a few days of having seen Mr. Mansi and receiving from him the contract signed by both parties. The solicitor's first thoughts were right and I do not understand why he was prepared at the trial to say otherwise. The note of the interview is slender evidence to the contrary.
But if this view of the facts is wrong the contract contained no stated completion date and as none was inserted the contract by its express terms in clause 4 of the incorporatedterms had its completion data fixed as the clause stipulated.
There is no evidence, in my opinion, on which it can be said that the parties had some outside agreement that the signed contract should not be binding except on some event . The inference from the conduct of the parties, as is usual, is that the formality required in order to conclude the bargain was the mutual signing of the document embodying the terms of their agreement.
( Pattle v. Hornibrook 1897 1 Chancery page 25), to which our attention was properly drawn by Mr. Browne-Wilkinson after the argument was concluded, supports the proposition that though evidence to vary the terms of an agreement in writing is not admissible, yet evidence to show that there is not an agreement at all is admissible, as when the operation of a writing as an agreement is conditional on the approval of a third person or on something to be done by the other party. Mr. Justice Stirling found that the acceptance on behalf of the defendant of the offer by the plaintiff to take the house on the terms of the written agreement was subject only to the defendant being satisfied as to the plaintiff's responsibility. This stipulation appears to have been regarded by the learned judge as having been brought to the notice of the proposed buyer, the plaintiff, and agreed. I do not regard the case as supporting the respondent's proposition that a reservation uncommunicated to the other side and unaccepted - that is, something short of an agreement - is sufficient. If it did I would respectfully doubt whether it was rightly decided.
I am in complete agreement with the opinions of both my brethren. The appeal will be allowed with the consequential orders. The completion date must now be read as the 16th October, 1959, having regard to the agreement of the parties to that effect on the 11th August, 1959.
This is a shocking example of the trouble and expense which can arise from the employment (under a mistaken idea of saving time and expense) by the two parties to a sale ofa solicitor who is already the solicitor of one of the parties.
The defendant vendor was a builder, whose regular solicitor in his transactions was the solicitor as employed. It seems to me impossible for a solicitor in such circumstances to act fairly for both of the parties. The plaintiff purchaser was obviously a person quite inexperienced in the matter of buying and selling land. The position in the present case was aggravated by the mistaken idea of the solicitor in question that it was legally possible for the process of "exchanging contracts" between two solicitors acting for the respective parties to be applied to a single document prepared by the only solicitor.
Quite a lot of the trouble which has occurred has been caused by the misapplication of this idea to the circumstances of the present case. Of course, if the whole transaction goes happily to a satisfactory conclusion, nothing goes wrong, but that is not really a justification for a practice which invites disaster.
I think that in the present case the common solicitor paid undue attention to the directions which he received from his regular client (I am sure without any conscious bias), and the result is that the unfortunate purchaser found himself without the house which he thought that he was buying, and the vendor was left free to sell the house at an advanced price – If the decision of the learned judge was right.
The judgment of Mr. Justice Wilberforce was given on the 20th October, 1961, by which he held that there was no enforceable contract. Let us now see whether that is the true position. The history of the events is as follows.
The house in question is 24 Ivy Road, Benfleet, Essex. In March, 1959, the plaintiff inspected the house and liked it and there was a tentative idea of purchase. There were further discussion in Ray and it was agreed that the vendor's, Mr. Mansi's, solicitors, Ashby Rogers & Co., should be instructed to act for both parties. Accordingly, on the 26th May, 1959, Mr. Raddon, a partner in Ashby Rogers & Co., interviewed both parties andtook down particulars on a fern with a view to the preparation by him of a written contract. Against the note "Proposed completion date" he wrote down "End of September, 1959". It has bean assumed that this meant by implication that the sale was "subject to contract", that is, it was subject to the execution by both parties of a formal written contract.
On the 3rd June, 1959, Mr. Smith paid to Mr. Mansi direct a deposit of £300. This was in fact contrary to Mr. Raddon's notes, which anticipated that a deposit would be paid to his firm, as agents for Mr. Mansi "at exchange contract" (whatever meaning that may have).
On the 2nd July, 1959, a written form of contract was sent to Mr. Smith by Mr. Raddon which was complete except that it bore no date (at the top) and the provision for completion was "at the offices at 52 Station Road, Upminster, Essex, of Messrs. Ashby Rogers & Co., the vendor's solicitors, or as they shall direct on the (blank) day of (blank) 1959 from which time the Purchaser is to be entitled to vacant possession of the said property". The form of contract (by clause 6) provided that "the property is sold subject to the National Conditions of Sale (17th Edition) as far as they are applicable to a sale by private treaty and are not inconsistent with the foregoing conditions".
With the form of contract Mr. Raddon sent to Mr. Smith a covering letter which said: "We enclose contract relating to the above for your signature across the sixpenny stamp please and perhaps you will kindly return this to us at your early convenience. We will then get Mr. Mansi's signature and we understand that completion date is to be the end of September. If you would like to discuss this document with us we shall be happy to see you".
Mr. Smith did not return the document to Messrs. Ashby Rogers & Co. He signed it over the sixpenny stamp and took it to Mr. Mansi. I have no doubt that Mr. Smith knew that a date for completion should be filled in, but (as in the case of the date of the contract) my conclusion is that he anticipated thatMr. Raddon would fill in these dates and he accepted that the and of September, that is the 30th September, was the proper date as agreed. Mr. Mansi said that he would sign the contract if it was all right. He did sign it, in fact, on the sixpenny stamp above Mr. Smith's signature, and this was done, it appears from a note made on the covering letter by Mr. Mansi, on the 5th July, 1959. On the 7th July, 1959, Mr. Mansi took the contract round to Mr. Raddon. Mr. Raddon made a note of the interview, which is to this effect: "You want to extend completion date to end of Oct. instead of Sept. and you will see Mr. Smith accordingly. Contract to be held pro tem. for instructions".
This, on the face of it, is, in my view, completely compatible with the acceptance by Mr. Mansi that the agreed date for completion was the 30th September, 1959, and that actual completion was to be delayed till it was seen whether Mr. Mansi would get planning permission for another house for himself which he intended to build and could let Mr. Smith into occupation of 24 Ivy Road. Mr. Mansi had not told Mr. Smith that it was not agreed, but Mr. Mansi alleges that he...
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