Estate agents’ claim for advertising expenses–Property not sold–Agreement construed as obliging vendor to pay advertising expenses whether property sold or not–Vendor’s appeal dismissed
This was an
appeal by Miss T Flannery, the owner of a house called Froxmere Court in
Worcestershire, from the decision of Deputy Judge McLaren, at Worcester County
Court, in favour of Bernard Thorpe & Partners, who had sued Miss Flannery
for advertising expenses of £400 incurred by them in advertising Froxmere Court
for sale.
J West
(instructed by McIlquam & Co, of Cheltenham) appeared for the appellant; J
J Mason (instructed by Whatley, Weston & Fox, of Worcester) represented the
respondents.
Giving
judgment, LORD DENNING MR said: This is a very short case. A firm of estate
agents, Bernard Thorpe & Partners, claim advertising expenses of £400 spent
by them in advertising for sale a house in Worcestershire called Froxmere Court
owned by the defendant, Miss T Flannery. The sale did not go through. The plaintiffs
sue for their expenditure on local advertising.
The defendant
had another house some distance away. It was called the Trossacks. She was
living at the Trossacks. So was a Mr Hamer. A partner in the plaintiff firm, Mr
Jones, made a professional visit to that house. He saw Miss Flannery and Mr
Hamer. A discussion took place during which Mr Jones received instructions from
Mr Hamer for particulars to be prepared for the sale of Froxmere Court.
After that
visit Miss Flannery and Mr Hamer moved from Trossacks to Froxmere Court. On
August 6 1973 Mr Hamer wrote to Mr Jones from Froxmere Court, saying: "I
confirm my telephone conversation instructing your company Bernard Thorpe &
Partners to offer for sale Froxmere Court estate. Offers in excess of £125,000
will be considered. I further confirm that I agree to pay the first £400 of
your advertising expenditure plus your usual scale fees in the event of you
effecting the sale of this property."
In reply Bernard Thorpe & Partners wrote to Mr Hamer confirming his
instructions to put the property on the market and agreeing to act as sole
agents. They said: "In accordance with your instructions we shall arrange
for the national advertising campaign along the lines discussed . . . I note
that you agree to pay up to the sum of £400 on expenditure in this
direction."
Reading those
two letters, it is clear that there was an agreement to pay £400 regardless of
whether the property was sold or not. Also there was evidence given in the
court below of a conversation between Mr Jones and Mr Hamer regarding that
agreement. The judge found on the evidence that Mr Hamer acted as the agent of
the defendant and would pay £400 for advertising.
The defendant
called no evidence in the court below, and it seems to me that the judge’s decision
was right. Accordingly I would dismiss the appeal.
LAWTON and
BRIDGE LJJ agreed.
The appeal
was dismissed with costs. It was ordered that the order for costs should not be
executed without further application to the court, the defendant being legally aided.
Legal aid taxation.
