Vendor and purchaser — Claim by purchasers that a number of items, said to be fixtures or at any rate to have been agreed to be included in the sale of a house and land, were wrongfully removed by vendor prior to completion — Most of the items in question were garden ornaments and included, in addition to patio lights, stone urns, a stone statue, a stone ornament perhaps of Chinese origin and a lead trough — These garden ornaments rested by their own weight on the land itself or on some kind of plinth — Judge’s review of evidence as to meetings and correspondence between the parties — Judge decided that the items in dispute were fixtures, or, if not, that the vendors were estopped from contesting that the items were included in the sale — Law as to extent and purpose of annexation discussed — Modern authorities attach more importance to the purpose than to the degree of annexation — Judgment for plaintiff purchasers for delivery up by the vendors of the items still remaining in their possession or control and for the value of the items with which the vendors had parted
In this action
the plaintiffs, Mr and Mrs Hamp, purchasers from the defendants, Mr and Mrs
Bygrave, of the freehold property, Brocks Ghyll, near Wadhurst, Sussex, claimed
the return or the value of items alleged to have been wrongfully removed by the
defendants from the property prior to the completion of the sale.
M E Mann
(instructed by Mayes & Rudge, of Tunbridge Wells, Kent) appeared on behalf
of the plaintiffs; T B Davey (instructed by Balderston & Warren, of Baldock)
represented the defendants.
Giving
judgment, BOREHAM J said: In 1979 the plaintiffs, Mr and Mrs Hamp, purchased
from the defendants, Mr and Mrs Edward Bygrave, the freehold property known as
Brocks Ghyll near Wadhurst in Sussex. The property comprised a substantial and
attractive dwelling-house with various substantial outbuildings, including a
stable block, and about 7 1/2 acres of land. There were about 3 acres of
garden, half an acre of woodland and a paddock of about 4 acres. The purchase
price was £147.500.
These
proceedings arise in this way. The plaintiffs claim that a number of items,
most of them garden ornaments, passed as fixtures with the conveyance of the
freehold. Alternatively, if they were not fixtures, they were by express
agreement included in the purchase price. In the further alternative, and by
way of amendment, the plaintiffs claim that the defendants are now estopped
from denying that those items passed on the sale of the property. In any event,
the plaintiffs claim that they were wrongfully removed by the defendants prior
to completion. They now claim the return of those items or, where that is no
longer within the defendants’ power, their value by way of damages.
The defendants
admit that they removed all the items, or caused them to be removed, but
contend that they were, with the exception of one item, all chattels; thus the
property in them remained in the defendants and they were entitled to remove
them. They deny any express agreement that they were included in the purchase price
or that they are estopped.
The items in
question are, first, eight patio lights which were fixed to the walls at the
front and rear of the house to light the patio. Secondly, five stone urns which
contained soil and flowers and which stood on the patio. These urns were about
3 ft in height. There is no evidence as to their weight but, being made of
stone, it is reasonable to infer that each must have been of considerable
weight. Thirdly, a sixth and identical urn which stood in what is known as the
Italian garden. Fourthly, a stone statue of a woman about 3 ft 6 in high which
stood on a plinth in the rose garden; the plinth was of concrete about 1 ft
square in section and about 18 in high. Fifthly, a stone ornament about 21 in
high which may have been of Chinese origin and which stood on a rough stone
plinth in the goldfish pond. Sixthly, a large octagonal lead trough, thought to
date from the early-18th century, which was sited in the front lawn and was
filled with soil and flowers. The trough stood on a plinth about 1 ft high
which comprised kerbstones laid in the shape of an octagon; the inside of the
octagonal plinth was filled with rubble.
When this case
was opened it was alleged that there were other items to which the plaintiffs
were entitled and which have been removed. That was a mistake. It is now
accepted that only the items already particularised in this judgment were
removed by the defendants.
There was also
some dispute as to the method and degree of annexation of some of the items. On
this issue — and, of course, on other issues — three witnesses have been
called, namely Mr Horst Hamp, the first-named plaintiff, and Mr and Mrs
Bygrave, the defendants. It would be convenient if at this stage I state my
assessment of them as witnesses.
I have no
doubt that they were all honest witnesses and no suggestion has been made to
the contrary. The substantial differences between them are to be attributed to
genuine mistake or misunderstanding and, in particular, to mistaken
assumptions. On the subject of annexation, Mr Hamp’s evidence amounts to
inferences drawn or deductions made from his impression on seeing the various
items in situ in the course of a view prior to contract, and from what he found
after he had taken possession and the disputed items had been removed. On this
aspect of the case Mr and Mrs Bygrave had the advantage. They had lived with
most of the items for about five years. They had put some of them in position
and they had removed them all. I accept their evidence as to the degree and manner
of annexation.
I find,
therefore, that:
(1) the patio lights were firmly fixed to the
walls with screws;
(2) the six urns rested by their own weight;
(3) both the statue in the rose garden and its
plinth rested by their own weight;
(4) the stone Chinese ornament rested by its own
weight on its plinth, as did the large stone on the ornament. The plinth was
fixed by being sunk into the bed of the pond. The plinth remains;
(5) the lead trough rested on the kerbstones by
its own very considerable weight.
The facts I
find are these:
Mr and Mrs
Bygrave purchased Brocks Ghyll in 1974. With the exception of the eight patio
lights and the statue in the rose garden, all the disputed items were then in
situ. They were sited in exactly the same place and were annexed in precisely
the manner already indicated. They passed to the defendants without special
mention in
with the land. The patio lights and the statue in the rose garden were added by
Mr and Mrs Bygrave during their tenure from 1974 to 1979.
In about
September 1978 the defendants decided to sell and to that end instructed
agents. They hoped to obtain £150,000. The plaintiffs came to know that the
property was on the market. They were interested in purchasing but considered
the price of £150,000 as excessive.
In about
February 1979 they made an offer of £130,000 to the agents. This was refused on
the ground that the property had been sold.
In mid-1979
the property was advertised for sale. Mr Hamp saw the advertisement and
obtained the particulars of sale from the agents. Among the particulars the
following appeared. At p 2 of the particulars, among particulars of the
accommodation and other features of the property to be sold, are these words:
Outside. Total of eight external lights around patio.
Two pages on,
under the subheading ‘Gardens’:
About 3
acres. They have many attractive features, including
and some words
are now indecipherable
lawn with two
summer houses. Attractive brick herringbone
and I cannot
read the next word
patio,
interdispersed with occasional york flagstones and having five stone flower
urns. Attractively designed circular rose garden divided into spaces in york
stone giving 12 rose beds and an attractive stone figure in the centre,
and it then
goes on to a matter which is not germane. Under the subheading ‘Goldfish pond’:
Goldfish pond
with stone ornament, believed to be of Chinese origin. Well-stocked shrubbery.
Two beds with herbs. Magnificent
and I cannot
read the next word, it is a description of a tree ‘Magnolias and many oaks’. I
think it is ‘beech tree’.
To the front
of the property is a superb large lead octagonal ornamental flower trough dated
1707. Believed to have originally been a fountain.
Thus all the
disputed items are mentioned with the one exception of the solitary stone urn,
one of the six, in the Italian garden.
Before leaving
those particulars, one further matter may be material. There is on p 2 a
heading ‘Misrepresentation Act 1967’ and the agents, for themselves and for the
vendors, give notice disclaiming any liability for any misrepresentation. There
is no question of misrepresentation here. All the items mentioned in those
particulars were in fact to be found in the garden.
The plaintiffs
studied those particulars with some care. Having done so, they viewed the
property, including the garden, and saw many, if not all, of those disputed
items. They then made an offer of £140,000 to the agent. It was refused.
On August 6
1979 the plaintiffs and their children visited the premises and saw the
defendants. They were shown round the house by Mrs Bygrave and were then given
the opportunity — of which they availed themselves — to look round again on
their own. That done, there followed a discussion between the parties. There is
little dispute as to the topics discussed. There is substantial dispute as to
what was agreed. What happened was this: the defendants were anxious to sell,
but they wanted £150,000 and said so. The plaintiffs were equally anxious to
buy but they still considered the price excessive, and they said so. Their view
was that at £150,000 the house should have had more amenities, for instance a
swimming pool.
It was in
these circumstances that the defendants put forward a number of suggestions for
reducing the price. The first was to exclude the paddock and stable block and
reduce the price to £140,000. This the plaintiffs rejected. The second was to
exclude the paddock; no revised price was discussed because the plaintiffs made
it clear that they wanted the paddock. The third, and final, suggestion is of
particular interest. It was to exclude some of the garden ornaments, namely the
urns, the statue in the rose garden, the Chinese ornament in the pond and the
octagonal lead trough, which Mr Bygrave valued collectively at between £2,000
and £3,000. Mr Hamp was not greatly interested in the garden furniture and the
ornaments, but his wife made it clear that she was. She liked the urns in
particular. In the event nothing was agreed. This is not surprising; the Hamps
still considered £150,000 excessive, they were seeking a true reduction not a
reduction solely attributable to exclusions. Mr and Mrs Bygrave, on the other
hand, still wanted £150,000 for the whole property. However, the lack of agreement
was disappointing to both parties. The plaintiffs were still anxious to buy and
the defendants were particularly keen to sell to the plaintiffs, who were in a
position to finance their purchase immediately whereas other potential
purchasers had yet to arrange finance or sell their own houses.
Some three
days later Mr Hamp spoke to Mr Bygrave by telephone and offered £145,000 — that
sum to include the fitted carpets in the house, with the exception of the mauve
carpets in the sitting and dining-rooms. In making this offer Mr Hamp had, as
he put it, split the difference between the defendants’ asking price and his
previous offer of £140,000. Mr Bygrave asked for time to consider. Neither of
them made any mention of the disputed items.
On August 13
Mr Bygrave telephoned Mr Hamp with a counter-offer. He said that he could not
accept £145,000 because he had another offer of £150,000. He suggested,
however, that they should come to terms by splitting the difference — his
expression this time — between Mr Hamp’s offer of £145,000 and the original
asking price. Mr Hamp was unhappy and said so. He felt that it was always he
who was splitting differences. Nevertheless, he said that he would discuss the
defendants’ suggestion with his wife and would ring back. This he did with a
further offer. That offer was to pay £147,500 provided there were included in
the sale the white carpets and a choice of the internal light fittings. The
defendants accepted that offer. Again there was no mention of the disputed
items.
The next day,
August 14, the defendants’ agents wrote to the plaintiffs: ‘We are pleased to
confirm that we have arranged the sale of the above property to you for the sum
of £147,500 freehold, subject to contract and to completion on or before
October 1 1979. This price includes all the fitted carpets except the mauve
ones, a choice of the light fittings for sale, including the wall fittings in
the hall’ and then it goes on to matters which are not material, including
this: ‘Would you please forward a preliminary deposit in the sum of £500.’
The defendants
say that after the discussions on August 6 they considered that the sale
excluded those of the disputed items which were the subject of Mr Bygrave’s
third offer. That may have been what they believed, but I am satisfied that
there was no foundation for that belief. There had been no agreement to that
effect. It was simply a suggested way of reducing the purchase price. It was an
offer which was not accepted by the plaintiffs. Moreover, the subsequent offers
had been on the footing of splitting the difference between £150,000 and the
plaintiffs’ prior offer without any reference to exclusions from the sale.
£150,000 was the asking price for everything contained in the particulars of
sale. The defendants should have been in no doubt that it was on this basis
that they were negotiating. I have no doubt that is what the plaintiffs
believed.
But that is
not the end of this story. On August 17 the plaintiffs paid the preliminary
deposit of £500, and on the same day their solicitors wrote to the defendants’
solicitors in these terms: ‘I act for Mr Horst Hamp and his wife’ and it gives
their address, ‘who have agreed, subject to contract, to purchase this freehold
property from your clients Mr and Mrs Bygrave for £147,500. I look forward to
receiving a draft contract for my approval. With regard to the remarks on the
memorandum of sale of Messrs Taylor Ingram’ — they are the agents — ‘my clients
were under the impression that all light fittings were included unless my clients
do not want them, although they agree that the mauve carpets in the dining-room
and sitting-room are excluded from this sale although all the other fitted
carpets are included’.
They obtained
a reply to that letter on August 24 1979, and I quote the only material
paragraph in that reply: ‘We are instructed by our clients’, say the
defendants’ solicitors, ‘that all carpets except the mauve ones are included,
as are the venetian blinds, but that the matter of the light fittings is to be
agreed between our respective clients, and we understand our clients hope to
meet with your clients shortly’.
One week
later, that matter having been agreed, the defendants’ solicitors wrote again
on August 31: ‘Further to our letter of August 24, we now enclose in duplicate
a list of the light fittings to be included in the sale price, and we suggest a
further condition be added to this contract stating as follows: ‘The purchase
price hereinbefore referred to shall include the light fittings specified in
the list annexed hereto, and all carpets as fitted at the property, except
the mauve carpets in the dining-room and the sitting-room”. There is no
mention of any of the disputed items but, of course, that may be because each
party thought that his own firm assumption was shared by the other.
Meanwhile by
letter dated August 30 1979 the plaintiffs’ solicitors had presented their
inquiries before contract. These were seen and they were considered by Mr
Bygrave before being answered by the defendants’ solicitors on September 4. It
is necessary to refer to parts of those inquiries before contract.
They are
headed on the first page, under the column devoted to replies: ‘These replies
on behalf of the vendor are believed to be correct but the accuracy is not
guaranteed and they do not obviate the need to make appropriate searches,
inquiries and inspections.’ Inquiry no
11 — which is heavily relied upon by Mr Mann on behalf of the plaintiffs —
relates, as its subheading shows, to fixtures and fittings, and the inquiry
reads thus:
(a) Does the sale include all of the following
items now on the property: trees, shrubs, plants, flowers and garden produce;
greenhouses, garden sheds and garden ornaments; areas, fitted furniture and
shelves, electric switches, points and wall and ceiling fittings; (b) What
fixtures and fittings affixed to the property are not included in the sale.
Two
observations should be made before one deals with the reply. First, Mr Bygrave
accepts that the answers given by his solicitors to those particular inquiries
were provided by him, Mr Bygrave. He had perused the inquiries and he provided
the answers. Secondly, at the time when those inquiries were answered on
September 4 by the solicitors all the disputed items were still at the property
and were still in situ.
These are the
answers that were given. To the first inquiry setting out all those various
matters, including garden furniture, the answer was ‘Yes’. In other words, the
sale included all those items, and there was added this: ‘Please see our letter
of August 31 regarding light fittings.’
I have already read that letter. To the second part of the inquiry, what
fixtures and fittings are not included in the sale, there is the unequivocal
answer ‘None’.
Contracts were
exchanged on September 26. It seems likely that by this time the lead trough
had been disposed of by the defendants. The remainder of the items in dispute
were still in situ. The contract is in common form with a number of special
conditions, of which only special condition (h) is relevant and it may be
necessary to refer to that.
There then
followed correspondence as to the apportionment of the sum of £147,500 between
the real property and the items referred to in special condition (h). This
correspondence has no relevance to the issues raised in these proceedings.
On October 1
the plaintiffs’ solicitors sent their requisitions on title. Only one of those
is relevant and it is the first. It is headed ‘Previous inquiries’: ‘If the
inquiries before contract replied to on behalf of the vendor were repeated
herein, would the replies now be the same as those previously given? If not, please give full particulars of any
variation.’ The answer: ‘(1) Yes, save
as varied by subsequent correspondence, if at all.’
By this time
the lead trough had gone, and in addition to the lead trough, unknown to the
plaintiffs, four of the urns had been sold and removed.
Completion of
the sale took place on October 17 1979. The plaintiffs took possession and
immediately discovered that some of the disputed items were missing. Their
reaction was prompt. By letter of October 19 the plaintiffs’ solicitors
requested their return. It is unnecessary to quote from that letter. The reply
of the defendants’ solicitors was made on October 24. It is sufficient to say
of that reply that it foreshadows the defendants’ contentions in this court.
Before coming
to the main arguments it will be convenient to deal with one or two peripheral
matters. The first is one which is pleaded in the defence but upon which little,
if any, reliance has been placed in the argument in this court. It is to be
found in para 6 of the defence.
The
defendants will aver that on or about August 6, during negotiations as to the
sale of the property and the price thereof between the plaintiffs and the
defendants, it was orally agreed between the parties that the garden ornaments
referred to in paragraph 2 of the statement of claim were not to be included in
the sale of the property and in the premises the defendants were entitled to
remove them. The defendants aver that the said agreement is to be implied as a
term of the contract.
Enough has
been said in the course of this judgment thus far to indicate that in my view,
or on my view of the evidence, there was no agreement of any kind on August 6.
A number of matters were discussed, including the question of excluding some of
the disputed items, but there was no agreement. It is, of course, significant
in this context that when Mr Bygrave spoke to Mr Hamp on August 13 he did not
offer, as he had on August 6, to accept £147,500 if the items now in dispute
were excluded; he simply suggested that the parties might split the difference
between them, namely the difference between the full asking price and the
plaintiffs’ previous offer of £145,000.
The second
matter relates to the patio lights. Mr Davey on behalf of the defendants
accepts that, having regard to the manner of their annexation, they must be
regarded as fixtures. This is a realistic concession. He contends, however,
that in the circumstances they did not pass upon the conveyance of the land.
His argument starts with special condition (h) which relates to, among other
things, lights, which are to be included in the sale. They do not include the
patio lights. He contends that by necessary inference, therefore, the patio
lights are excluded. This is a bold argument and one which, despite its
attractive presentation, I found untenable. Special condition (h) is expressed
to embrace all the fitted carpets, with two exceptions, and the light fittings
particularised in an annexed list. The carpets and many of the items in the
attached list were movables, hence their being made the subject of a special
condition. The patio lights were, ex consensus, fixtures. There was no need for
any special condition relating to them, they passed with the land unless they
were expressly excluded. There was no such exclusion. In my judgment, the patio
lights were part of the land, they passed on conveyance to become the property
of the plaintiffs. The defendants could have no right to remove them.
The third
matter is Mr Mann’s subsidiary argument on behalf of the plaintiffs which
proceeds on the assumption that the disputed items were chattels which prima
facie, therefore, would belong to the defendants, the vendors. Mr Mann’s
submission is that the answer given on behalf of the defendants to inquiry no
11 of the inquiries before contract and/or the confirmation of that answer in
the reply to the first requisition on title amounted to a warranty by the
defendants that all the garden ornaments then in situ, including those now in
dispute, were included in the sale.
Whether or not
an assertion or representation is to have contractual effect as a warranty must
depend upon the intention of the parties, such intention being a matter of
inference from all the relevant circumstances. What are the circumstances
here? The inquiries before contract
emanated from the plaintiffs as purchasers. The vendors’ replies were prefaced
by the words which I have already quoted and which I repeat: ‘These replies on
behalf of the vendors are believed to be correct, but the accuracy is not
guaranteed and they do not obviate the need to make appropriate searches,
inquiries and inspections.’ In my judgment,
those words alone suffice to negative any guarantee or warranty. In any event,
the inquiries and their replies were not intended to create a warranty, or a
number of warranties; they were not of themselves to create any contract, their
purpose was to enable a proper contract of sale to be drawn up. Finally, one is
entitled to ask ‘If they created contractual relations, why was it necessary to
ask for confirmation in the requisitions on title?’ The replies to the requisitions could hardly
create contractual relations because by then contracts had already been agreed
and exchanged. In principle I find this case indistinguishable from the case of
Mahon v Ainscough [1952] 1 All ER 337 and I would rely, in this
context, particularly upon the judgment of Jenkins LJ (as he then was) at p
340.
Mr Mann, for
the plaintiffs, does not accept that Mahon’s case is conclusive of the
present case. He distinguishes that case on the following short but important
point. In Mahon’s case the vendor was unaware of the war damage which
was the subject of inquiry before contract. In this case, on the other hand, Mr
Bygrave not only knew whether or not all the garden ornaments were included in
the sale, he personally authorised the answer. That is a valid distinction on
the facts, but it is a distinction which does not, I think, impinge upon the
principle. The question is not what the vendor knew when he gave his answer,
but whether or not the parties intended the answer to have contractual effect
to constitute a warranty. I have already given my reasons for concluding that
they did not.
This brings me
to the main issues in the case. The main thrust of Mr Mann’s argument for the
plaintiffs is two-pronged. First, that all the items in dispute were fixtures
and thus on conveyance of the land became the property of the plaintiffs by
operation of law. Secondly,
chattels the defendants are now, by their assertions and by their conduct,
estopped from denying that they were included in the sale.
The first
question is, therefore, were the items, or any of them, fixtures? It is accepted that the answer to that
question depends upon the application of two tests. First, what was the degree
of annexation? There is no doubt that
none of the items was fixed or attached to the land or to any structure which
was itself attached to the land. Each rested by its own weight either on the
land itself or on some sort of plinth, and only in the case of the Chinese
figure was the plinth fixed or attached to the land. Judged by this test,
therefore, they were all prima facie chattels.
The second
test is: What was the purpose of the annexation? Was it in order to enjoy the chattel as a
chattel or was it to improve the freehold in a permanent way? There is, in my judgment, authority for the
following propositions: (a) Items which are firmly fixed to the land may yet
remain chattels if (1) the purpose of the annexation was to enjoy them as
chattels and (2) the degree of annexation was no more than was necessary for
that purpose. See Re de Falbe, Ward v Taylor [1901] 1 Ch 523,
which was a case concerning valuable tapestries. (b) Articles which are
intended to improve, in the sense of being a feature of, the land though their
annexation is by no more than their own weight may be regarded as fixtures. See
D’Eyncourt v Gregory (1866) LR 3 Eq 382. (c) While the earlier
law attached greater importance to the mode and degree of annexation, more
recent authorities suggest that the relative importance of these considerations
has declined and that the purpose of the annexation is now of first importance.
In judging the purpose of the annexation regard must be had to all the
circumstances, including the manner of annexation and the intention of the
annexor or occupier of the land at the relevant time. See Leigh v Taylor
[1902] AC 157. (d) Nevertheless, in the absence of evidence of a contrary
intention, the prima facie inference to be drawn from the mode and degree of
annexation will not be displaced: see Barker v Pollock, The
Times November 3 1976.
What are the
relevant circumstances here? First, the
degree of annexation with all the items resting by their own weight suggests
that they were chattels. Secondly, each item was of a kind which might equally
have been intended to be a permanent feature of the garden or which might have
been placed in the garden to be enjoyed as a chattel on its own merit. In the
absence of other evidence the prima facie inference that they were chattels
would prevail. But what did the defendants intend? The fact that most of the items passed to
them on the sale of the land in 1974 I do not overlook, though I discount its
effect. It seems to me to throw no light upon their intention in 1979.
What, then, of
more recent events? The following, in my
judgment, are material. First, the particulars of sale expressly referred to
each of the disputed items as part of the property to be sold. Secondly, in the
course of the discussions on August 6 the defendants suggested that one way of
reducing the purchase price would be to exclude those items or some of them.
That could only be because they were regarded as otherwise part of the property
to be sold. Thirdly, on some date between August 31 and September 4 1979 Mr
Bygrave, having read the inquiries before contract, authorised his solicitors
to say that the sale included all the garden ornaments then on the property,
and at that time all the disputed items were on the property and in their
places. All these matters point strongly to the conclusion that the defendants
regarded all the items as part of the freehold. They have given no evidence to
the contrary. They have contended, of course, that they were not included in
the sale, not because they (the defendants) regarded them as chattels, but
because they contend that on August 6 there had been an express agreement to
exclude them. That was the tenor both of the correspondence and of their
evidence in this court. In these circumstances, I consider the clear inference
to be that the defendants regarded all the disputed items as features of, and
part and parcel of, the garden. I conclude, therefore, that they were fixtures
and that they passed on conveyance of the land to the plaintiffs.
If I am wrong
on this and if the items in question were to be regarded as chattels, Mr Mann
argues that in all the circumstances the defendants are estopped from denying
that they were included in the sale. In support of that argument he relies upon
those matters which, in my view, point to their being regarded as fixtures. He
contends that all the defendants’ references to those items were calculated to
induce the plaintiffs to act in the belief and on the basis that they were all
included in the sale; that the plaintiffs did act on that understanding and so
paid more than they would otherwise have done. Mr Davey, for the defendants,
realistically accepts that should I find that there was no agreement on August
6 to exclude those items his position would be difficult if there were evidence
that the plaintiffs relied on the defendants’ assertions. Mr Davey’s case is
that there is no such evidence. There are, I think, two answers to Mr Davey’s
contention: First, it is for the defendants to show that the plaintiffs did not
rely upon the defendants’ assertions: see Greasley v Cooke [1980]
1 WLR 1306. This they have not done. Secondly, there is evidence that the
plaintiffs did rely on what was said to them. They studied the particulars of
sale which set out virtually all the disputed items as part of the property to
be sold. Moreover, they must, as would any reasonably sensible person, have
concluded, and, I do not doubt, did conclude, from the discussion on August 6
that, in the absence of some agreement to the contrary, the items in question
were included in the sale. This was not a mere assumption on their part, it was
an inevitable inference from what was discussed. It was on this footing that
they increased their offer to £147,500.
In those
circumstances, I would conclude, if it were necessary, that the defendants
should be estopped from denying that the items in question formed part of the
sale.
There remains
for consideration the question of relief. The following items still remain in
the possession or control of the defendants: the eight patio lights, two of the
six stone urns; the stone ornament in the pond with its stone plaque; and the
statue of a woman which once stood in the rose garden together with its plinth.
All these must be delivered up to the plaintiffs.
Four of the
stone urns were sold just after the exchange of contracts for the sum of £75
each, and the lead trough from the front lawn was sold on about September 13
1979 for £1,200. I have no doubt that Mr Bygrave is an astute man of business
and that he did not sell at an under-valuation and thus I can regard the sale
prices as reflecting the true value of these items. I therefore assess the
damages in respect of these three items at £1,500. There will be judgment for
the plaintiffs accordingly.
