Estate agent — Commission — Appellant estate agent offering to sell home of divorcing couple on stated terms — Whether wife accepting terms by conduct — Sale by husband to purchaser introduced by appellant — Whether commission payable to appellant where husband given control of sale by court order — Appeal allowed
The respondent couple were divorcing, and the wife asked the appellant estate agent to advise on the disposal of the matrimonial home. In July 2000, the appellant wrote to the wife purporting to confirm her instructions to sell the property, and setting out its commission as 2.5% plus VAT, following any sale to a purchaser that it had introduced. It asked the wife to return a signed copy of the letter; she failed to do so. In September 2000, the appellant received an offer from L.
In October 2000, a consent order was made in the ancillary relief proceedings relating to the divorce. This stated that the former matrimonial home was to be put on the market and the husband was to have sole conduct of the sale. The appellant informed the husband of L’s offer. However, the wife instructed the appellant that it should no longer market the property because her husband intended to remortgage it. The husband then dealt with L directly, and sold the property to her in a transaction to which the wife was a party.
The appellant brought proceedings claiming commission on the sale. Although the judge found that no contract had been formed on the terms of the July letter, he considered it to be implicit that commission would become payable in the event of a sale to a purchaser introduced by the appellant. However, he implied a proviso that the sale had to be by the wife, in the sense of it being a sale within her power and over which she had a choice. He concluded that the sale to L did not form such a sale, since the purchaser had been chosen by the husband’s. He therefore dismissed the claim. The appellant appealed.
Held: The appeal was allowed.
Although the wife had never signified her express acceptance of the offer in the July letter by returning a signed copy, she had accepted it by her conduct. She had allowed the appellant to produce particulars of the property, to advertise it, and to show people around. Her conduct was clearly referable to the appellant’s offer, and, despite any uncommunicated reservations that she might have had, that conduct was not reasonably capable of being interpreted as anything other than acceptance. It had not been open to the judge, on the evidence, to construct a reservation to the effect that the wife had to have control of the sale before commission were payable. Accordingly, commission became payable to the appellant by the wife, who was to be indemnified by the husband.
Timothy Charlton QC (instructed by Colman Coyle) appeared for the appellant; Mark Warwick (instructed by Alexander Marks & Co) appeared for the respondents.
Sally Dobson, barrister
