Conversion — Whether a large greenhouse was a building or a chattel — Dispute between vendor and purchasers of a house — The conveyance conveyed the land in question ‘together with the farmhouse and other buildings erected thereon’ — The greenhouse which was the subject of the dispute was very large — It was of prefabricated construction and was placed in position on a previously installed concrete base — It was of cedar frame with a series of ridged roofs supported in the centre by steel supports which went down into concrete posts — The wood at the foot was bolted to large concrete plinths which rested unfixed on the concrete base — The purchasers of the house refused to allow the vendor to remove the green house — Held, on the question of construction, after reviewing the authorities, that the greenhouse in question was a chattel — Although a large structure, it was not affixed to the land but lay on it by its own weight and fell within the definition of a chattel given by Blackburn J in Holland v Hodgson — The onus of showing that in these circumstances it was intended to be part of the land was not discharged by the purchasers — The judge also rejected a submission on behalf of the purchasers based on alleged estoppel by representation — Principles governing assessment of damages for conversion discussed, the action being based on conversion of the greenhouse by the defendants’ refusal to allow the plaintiff to remove it — Judgment for plaintiff vendor
This action
was brought by Mrs Leonie Geraldine Deen, vendor of a large cottage called
Quays Farm, Toppesfield, Essex, against the purchasers, the defendants, Mr and
Mrs Andrews.
H Lloyd
(instructed by Ian Guyster & Co) appeared on behalf of the plaintiff; K
Garnett (instructed by Irving Spellman & Co) represented the defendants.
Giving
judgment, HIRST J said: This case is the saga of a greenhouse. In 1979 the
plaintiff, Mrs Leonie Geraldine Deen, was the owner of a large cottage called
Quays Farm in Toppesfield, Essex, and during the course of that year she and
her husband caused to be erected a very large greenhouse which cost some £2,700
plus VAT.
The
photographs which are in evidence show very clearly its construction. It was of
cedar frame with a series of ridged roofs across the building, supported in the
centre by steel supports which went down into concrete posts. The wood itself
at the base was bolted to a series of large concrete plinths which ran all the
way round the building consecutively, and they themselves were resting unfixed
on a concrete base, which was put in before the building was erected.
The erector
himself, Mr David Windley (whom I shall call hereafter ‘David’ for short), gave
evidence and he explained how the building arrived on a lorry in flat sections
like a huge piece of Lego or Meccano and how, after it arrived, the concrete
base was installed, the plinths were then placed in position on top of it, and
the woodwork was erected — it came in smaller sections and they had to be
bolted together. The roof, of course, was higher up, but also, as I understand
it, of the same sort of prefabricated construction, and then, finally, the
building was glazed and the glass itself not puttied in but fixed with plastic
clips.
There was also
some oil heating on the premises and there was at one stage a dispute about
some oil, but that has now disappeared and so I shall say no more about the
oil.
Early in the
1980s the plaintiff decided to sell the property. Mr Deen was, I think, already
working in Florida in the United States and he has come from there for this
case to give evidence. The property was put in the hands of two agents,
Bairstow Eves, of Braintree, and also Savills, but Savills do not figure
further in the case. It is the plaintiff’s case and Mr Deen’s evidence that he
instructed Mr Adie, who was the Bairstow Eves’ representative, to make it clear
from the outset that the greenhouse was supposed to be separate.
Now, I say at
once I have no doubt that was, in fact, said or intended to be conveyed. But in
fact much of the discussion seems to have taken place on the telephone from
America, and it is by no means clear whether and to what extent Mr Adie fully
understood that, and Mr Adie himself has not given evidence. The particulars of
sale are at p A1, and in the description of the outside there is a fairly
neutral inventory, headed ‘Numerous out-buildings’. I say ‘neutral’ because it
says nothing either way about the greenhouse.
There was,
incidentally, another much smaller, older greenhouse on the premises also, of
conventional, inter-war construction, which can be seen through the big
greenhouse on one of the photographs.
The
defendants, Mr Christopher Frederick Andrews and his wife, Mrs Gloria May
Andrews, got the particulars of this property for sale from the agents. Having
gone to the estate agent’s offices, they were interested in the appearance and
particulars of this building. Undoubtedly, even in a photostat of a photograph,
it looks quite an attractive house, and so on that same day they went to the
house to have a look at it, accompanied by Mr Adie. There they also met David,
whom I have already referred to, who was the gardener.
There is a
dispute, which is not of any importance save on credibility, as to whether or
not David accompanied Mr and Mrs Andrews and Mr Adie round the house. What is,
however, clear, and common ground, is that there was a conversation between
David and Mr and Mrs Andrews out in the garden, at which the greenhouse was
discussed. There is a dispute — an absolutely fundamental dispute, in fact — as
to what was said in that conversation. Mr and Mrs Andrews’ version is that they
asked Mr Adie whether this big greenhouse was included or excluded; that Mr
Adie referred the matter to David, and that David then said it was included, in
other words part of the property on sale. David’s evidence, on the other hand,
is that when the matter was referred to him he made it quite clear that the
greenhouse was separate. This conversation, of course, was right at the outset
of the whole affair, but I shall of course come back to it later, as it is
relied on as founding an estoppel.
Solicitors
were instructed, and in the usual enquiries before contract there was the
following question:
Fixtures and
fittings. Does the sale include all of the following items now on the property:
Trees, shrubs, plants, flowers, garden produce
then the
important line
Greenhouses,
garden sheds and garden ornaments, aerials, fitted furniture and shelves,
electric switches, points and wall and ceiling fittings.
Answer: Yes,
but the purchaser should check with the vendor as to the precise details.
Certainly this
was a qualified answer, though the word ‘yes’ at the beginning is a fairly
strong affirmative, subject to the recommendation in the qualification.
On April 10
1980 the estate contract was entered into on the
described as follows:
All THAT
piece and parcel of land situated in the parish of Toppesfield including hedges
et cetera delineated on the plan attached hereto . . .
and then the
vital words
together with
the farm houses and other fieldings
which everybody
agrees was a misprint for ‘buildings.’
The
conveyance, which is dated May 12, is worded in almost exactly the same terms
and I read only the important phrase, ‘together with the farmhouse and other
buildings erected thereon.’ Between the
conveyance and the contract there was some correspondence. On May 6 the
plaintiff’s solicitors wrote to the defendants’ solicitors:
Our client
has informed us, as we believe your clients are aware, the greenhouses on the
property are not included in the purchase price. Before our client dismantles
same we should be obliged if you would kindly contact your clients to see if
they would be interested in purchasing them accordingly.
There was
clearly a telephone conversation following that letter, because three days
later, on May 9, the plaintiff’s solicitors write again to the defendants’
solicitors, saying:
With regard
to the telephone message to the effect that your clients considered the
greenhouses were included in the purchase price on the basis of the required
reply to enquiry number 11, we would inform you that firstly we stated that
your clients should check with our client as to the precise details, and
secondly in any event our client instructed the agents, whom we understand
informed your clients that the greenhouses were not included in the purchase
price.
On the day of
completion itself, three days later on May 12, the completion meeting was held
at the plaintiff’s solicitor’s office, Ian Guyster & Co, with a
representative of the estate agents present and also, of course, attended by
the defendants’ solicitor, Mr Spellman, of Irving Spellman & Co. The
plaintiff’s solicitor’s attendance note of that meeting reads as follows, after
the usual ‘attending upon’ phrase:
Our client
did not wish to complete until it was agreed that the one greenhouse which was
removable could be removed, and also he had arranged to drain off the oil,
neither of which the purchaser wished to buy. There was considerable argument
as to whether or not the greenhouse was included in the purchase price, but
finally the purchaser agreed to allow our client to remove both the oil and the
greenhouse, so that the matter was at an end.
There is no
dispute about the accuracy of that note as an account of that meeting other
than about the comment, ‘so that the matter was at an end’, which indeed was a
somewhat optimistic comment, since here we are today, five years and more after
the event.
That was
followed by a letter on May 12 from the plaintiff’s to the defendants’
solicitors, confirming the conversation in terms I do not need to read.
The situation
on that day was as follows: The defendants, Mr and Mrs Andrews, who had been
living in rented accommodation, were actually at the premises with their
removal men and their furniture in tow when they got the message about the
ultimatum from the plaintiff. Mr Deen in evidence said, quite frankly, that he
was digging his toes in about this and therefore I do not think the word
‘ultimatum’ is unreasonable. Mr and Mrs Andrews were therefore in a complete
dilemma. To call the whole thing off and send their removal men away, perhaps
with the idea that later on they would bring an action, was one possible course
of action; indeed, that was what Mr Andrews first resolved upon. But having
given it a little more thought he acceded, though he said very unwillingly
indeed, to the ultimatum and agreed about the greenhouse.
The
disproportion between the two aspects of the agreement — if there are two aspects
— was, of course, noteworthy because the contract price was over £82,000 for
the property as a whole, and if indeed the greenhouse is correctly to be
treated separately (which I shall be deciding in a moment) then its value was
certainly under £2,000 by May 1980, allowing for depreciation, costs of
removal, etc.
There was an
ensuing correspondence which I can go through very quickly. Mr Spellman replied
on May 20 to the letter of the 12th, saying:
You must be
aware there was a genuine dispute as to the question of the greenhouses. When
completion took place at your offices both Messrs W H Matthews and myself were
aware of your clients tactics in trying to take advantage of my clients’
situation with their removal vans and my clients must reserve their rights.
The
plaintiff’s solicitors responded with a further account of the meeting, which
does not really add anything, on May 26 disputing the ‘trying to take
advantage’ point.
Then some time
just after that, before the 27th, the Deens attempted to go on to the premises
to get the greenhouse but were denied access, as is shown by a letter of May 27
from Mr Deen to Bairstow Eves, giving them that information and saying that he
would be relying on Mr Adie to give testimony about the instructions originally
given from America. His solicitors also recorded the refusal of access, in
letters, both May 29, written respectively to the agents and to the defendants’
solicitors, and then there was further correspondence about it which I do not
need to read.
The first
issue is a pure question of construction. I wish to make it quite clear to all
the parties who are sitting in court, as I am sure their own lawyers have told
them, that when it comes to construing a legal document like a contract or a
conveyance — and here the words are the same in both — it is a pure matter of
law for the judge to interpret what the words mean, having regard to any legal
authorities which bind him in our system of legal precedent, and has nothing
whatsoever to do either with what evidence the parties give about it, which is
inadmissible anyway on this topic, or what they may have wanted or intended. It
is purely a matter of construction. The vital words are, as I have said,
‘together with the farmhouse and other buildings.’
If I may put
the defendants’ argument first, which was short, crisp, clear and to the point,
Mr Garnett submits that it is a plain matter of English language. Why, he
asked, as a matter of plain English, should not a big greenhouse like this, of
such solid construction, with the heavy concrete plinths at the bottom, and
built clearly for a commercial purpose, be regarded in ordinary parlance as a
building within the ordinary meaning of that word, just as the other structures
on the site, such as the other greenhouse, the barns and the timber shed and I
think some others, are agreed to be buildings. He submits that the matter is to
be tested in particular by the fact that (unnecessarily if there was no
separate intention) the additional words ‘the farmhouse and other buildings’
are added. He submits that in this context, with them explicitly added to the
general description of the land, those words must appropriately be treated as
covering this greenhouse.
Mr Lloyd, on
the other hand, submits that that is not the proper approach. He relies by
analogy on the concept of fixtures in landlord and tenant law, and submits that
the same principle should apply here as applies there. He cited paras 1545 and
1547 from Woodfall’s Landlord and Tenant and also a number of passages
from the 5th ed (1984) of the Law of Real Property by the present
Vice-Chancellor, Sir Robert Megarry and Professor H W R Wade. There is no
conflict between the two textbooks and I am going to draw, for the purpose of
illustrating and explaining Mr Lloyd’s submissions, on Megarry and
Wade. I start with the relevant passage under the heading ‘Distinction
between Fixtures and Chattels’ on p 731, and that starts off:
A physical
object will usually be either land or a chattel but its nature may change
according to the use made of it.
They then give
some examples and say at the bottom of the page:
A tenant for
example who attaches fixtures to the demised premises may thereby make them the
property of his landlord and a purchaser of land may claim as part of his
purchase all objects which were fixtures at the date of the contract for they
form part of the land sold to him.
I pause there.
The learned authors there are, as Mr Lloyd submits is the correct approach,
assimilating the concept of fixtures in landlord and tenant law with what does
or does not pass on a purchase contract between purchaser and vendor such as we
have here. They then say:
The first need
therefore is to be able to decide what is a fixture and what is not. In
borderline cases this is often difficult but in principle it depends upon two
tests namely — (1) the degree of annexation, and (2) the purpose of annexation.
(1) Degree of annexation. This is the primary
test. An article is prima facie a fixture if it has some substantial connection
with the land or a building on it. An article which merely rests on the ground
by its own right such as a cistern or a ‘Dutch barn’ standing in sockets let
into the ground is prima facie not a fixture. On the other hand, a chattel
attached to the land or a building on it in some substantial manner, eg by
nails and screws, will prima facie be a fixture even if it would not be difficult
to remove it.
Then under
‘Purpose of Annexation’ there is quoted a well-known passage of great authority
from the judgment of Blackburn J in the case of Holland v Hodgson
(1872) LR 7CP 328 at p 335, which reads as follows:
Perhaps the
true rule is that articles not otherwise attached to the land than by
their own weight are not to be considered as part of the land, unless the
circumstances are such as to show that they were intended to be part of the
land, the onus of showing that they were so intended lying on those who assert
that they have ceased to be chattels, and that, on the contrary, an article
which is affixed to the land even slightly is to be considered as part of the
land, unless the circumstances are such to show that it was intended all along
to continue a chattel
I think it is
clear that ‘purpose’ in this context means objective purpose, to be judged from
the evidence, and not the particular purpose in the mind of the person who
brought the object there, which might vary, and in any event might well not be
known to the other party. Examples of such objective purpose are given in the
textbook; for instance, for a drystone wall which, though not actually
cemented, would none the less of its very nature indicate an objective purpose
of permanency; and statues, which form part of an elaborate landscaping project
on the property.
I say at once
that there is no evidence here at all relied on by either side of any such
purpose which would remove this building from whatever general category it is
properly placed in, following the principles laid down by Blackburn J, which of
course I regard as authoritatively binding on me and which indeed have been
applied for years.
Finally, Mr
Lloyd cited a fairly recent Court of Appeal case of very considerable significance,
in my judgment; the case of H E Dibble Ltd v Moore, West Third
Party [1970] 2 QB 181. That was a rather complicated case involving a
plaintiff, a defendant and a third party, in relation to a company which had
gone into receivership, and its facts are not by any means dissimilar to the
present case. There were two greenhouses on some land which was sold — and I am
quoting from the headnote — ‘standing on their own weight on dollies not
affixed or attached to the ground.’ The
conveyance of the land is set out on p 188 in the judgment of Harman LJ, and
the wording was as follows:
All those
pieces or parcel of land now used as a market garden . . . .
there being no
reference to buildings in addition to the general reference to the market
garden.
Section 62 of
the Law of Property Act 1925, provides:
A conveyance
of land shall be deemed to include and shall by virtue of this Act operate to
convey with the land all buildings, erections, fixtures, . . . .
So by
operation of law, that conveyance of the market garden was deemed to include
all buildings and erections, and the learned county court judge, who decided
the case at first instance, held that these two greenhouses were erections and
therefore passed with the land. This was unanimously reversed by the Court of
Appeal. Megaw LJ said, without elaboration, that they were not within the
section. Harman LJ said:
But it is
said,
and I am
reading from p 189
and the judge
so held, that they were erections. So in a sense they were. But are they
‘erections’ within the meaning of the general words of section 62? In my opinion, clearly not. Nothing I think,
is an erection within the meaning of that section which is not something which
is part and parcel of the land conveyed. It does not operate to convey chattels
at all.
Russell LJ, as
he then was, said at p 189:
In my
judgment that
ie what the
county court judge held
was wrong in
law. In section 62(1) the word ‘erection’ does not embrace something that is
not a part of the land, either as a fixture or otherwise. I know of no
authority to the contrary. No text book even discusses the possibility. In Hood
and Challis’s Property Acts, 8th ed (1938), at p 141, I find this comment:
‘general words
as used in conveyances of lands and manors denote things divisible into three
classes;
(1) Things which, in construction of law, are
parcel of the thing conveyed . . . .’
Then
I note the
phrase ‘things which, in construction of law, are parcel of the thing
conveyed’, and with that I wholly agree.
It is manifest
that in Dibble’s case the greenhouses were not erections within the
meaning of that word in section 62 of the Law of Property Act 1925. A
fortiori it is quite plain that they were not buildings within the meaning
of section 62 of the Law of Property Act 1925.
This greenhouse
here, bolted to part of its own structure, which was delivered with it — though
admittedly fairly hefty bits of structure, namely the plinths — is not in any
way affixed to the land. It lies on its own weight and therefore prima facie
falls within the definition of a non-fixture or a chattel as given by Blackburn
J in the case of Holland v Hodgson.
In my
judgment, the word ‘building’ in the conveyance here cannot, in all
commonsense, be given a different construction from the word ‘building’ in
section 62 of the Law of Property Act, although it is perfectly true, as Mr
Garnett submits, that the inclusion of buildings is expressed in the words of
the contract rather than implied by operation of law under section 62. I can
see no difference in principle between construing a word which is expressed as
it is here and which is implied by virtue of section 62. In my judgment, this
structure, this greenhouse, was in truth and in fact a chattel rather than a
building and was, therefore, I hold, not covered by the terms of either the
conveyance or the contract.
I next
consider the issue as to the conversation between David and Mr and Mrs Andrews.
All three were absolutely sincere, honest and conscientious witnesses. I saw
them all give evidence and it is always invidious to have to choose between
such honest witnesses, particularly when one of them, Mrs Andrews, for reasons
which are perfectly understandable, feels rather fraught about the whole
matter, as was plain at the end of her evidence. I do not criticise her for
that.
Mr and Mrs
Andrews are quite firm that David said the greenhouse was included in the
conveyance, and, as I said, they were fair witnesses, and Mr Andrews
particularly fair in his concession in cross-examination that as this was at
the very beginning, his very first visit to the house, he was not very worried
at that stage whether he got the greenhouse at once and the matter only
surfaced in his mind when the conversation took place in the garden.
David said
quite firmly the opposite and he said also two other very significant things
which were not challenged. The first was that he had arranged for a local
farmer to transport it away on his tractors and trailers, and he gave the name
of Mr Chinnery; secondly, he said that he had placed a number of advertisements
on instructions in the local paper, though he could not remember which one, for
the sale of this greenhouse.
Those were two
matters which, in my judgment, were fully consistent with his evidence, and
were impressive in helping me to decide what really happened. He had no axe to
grind and although, of course, it has become a matter of importance now to the
defendants, it was not, as Mr Andrews admitted, of much importance at the time
till it was mentioned. On the other hand, it was a matter of importance to
David, since we know that apparently he did some market gardening himself, and
indeed he now runs a produce business.
I am
absolutely satisfied that Mr and Mrs Andrews genuinely believe their version of
what David said, and in the finding I am about to give there is no implied
criticism of them whatsoever. None the less, the burden being on them, I am not
satisfied on the balance of probabilities that David did make the
representation which is attributed to him. Consequently, the whole factual
basis of this particular conversation as relied on by the defendants to support
an estoppel fails. I would add, however, that even if I had been in the
defendants’ favour on the course of the conversation, I think it would have
been extraordinarily difficult for Mr Garnett to establish an estoppel, despite
his very ingenious submissions to that end.
The pleading
simply asserts that David, as the plaintiff’s agent, made the representation.
Mr Garnett frankly accepts that David himself was not in a position of
authority to be capable of binding his employer, either the plaintiff or her
husband, to make it a binding representation. However, he submits that the true
position is that Mr Adie, knowing what the situation was, should have spoken up
and corrected what David said (if I had held that David had said it) and that
by failing to do so and lying-by he, in effect, confirmed it by his silence, so
that the defendants cannot go back on it. I find that very difficult as a
concept of fact, even if I allowed an amendment to cover it, without Mr Adie’s
evidence as to what he knew; because if he did not know, even though the
plaintiff thought he had explained it to him, then it would be quite impossible
to attribute any culpable lying-by to him under the principles laid down in the
well-known passages on estoppel cited by Mr Garnett from Spencer, Bower and
Turner on Estoppel by Representation.
There would be
further difficulties also, in my judgment, in the defendants’ way. Firstly, it
seems to me very difficult to establish an estoppel of this kind when the whole
position is subsumed into a
Investment and Property Co Ltd v Texas Commerce International Bank Ltd
[1982] QB 84 (where the Court of Appeal held there was an estoppel in the form
of an underlying assumption to be derived from the course of business) can be
equated to the informal conversation which is relied on here.
Finally
(though I do not found any conclusion on it, since it was not pleaded), it
seems to me very difficult to apply the estoppel concept in view of section 40
of the Law of Property Act 1925, on which Mr Garnett himself relies, as I shall
show in a moment.
I now deal
very briefly with the effects of the conversation on May 12, that is the date
of completion, which of course is also strictly unnecessary because I have
already found in favour of the plaintiff on the issue of construction. If,
however, I had been against the plaintiff on that, I should have found it
impossible to hold that the events of May 12 changed the situation back again
in the plaintiff’s favour.
Firstly, in my
judgment, there was no consideration for the promise on which the plaintiff
relies, since what the plaintiff was agreeing to do was no more than what she
was bound to do already, namely to sell the land, and that is very clearly
borne out by old authorities and also the recent decision by Mocatta J in North
Ocean Shipping Co Ltd v Hyundai Construction Co Ltd [1979] QB 705. Secondly,
it seems to me that there would have been a very strong argument, quite apart
from lack of consideration, that this was a case where the agreement of the
defendants on May 12, if it had mattered, was obtained by duress. Of course we
have got to be very careful before finding duress, as is shown by the Privy
Council case of Pao On v Lau Yiu Long [1980] AC 614.
But, whereas
in the Hong Kong case there under consideration the party who was disadvantaged
had plenty of time to consider the matter, take legal advice and reach a mature
resolution as to his line of conduct, here Mr and Mrs Andrews had absolutely no
time at all. They were completely up against it with their removal vans at the
door and I think, in those circumstances, the threatened breach of contract
would probably amount to duress, but none of that matters, since on the key
point, namely the construction of the contract, I am in the plaintiff’s favour
and there is nothing in the estoppel point either in fact or in law.
I now come to
consider the damages here. I first want to specify what I understand to be the
legal principles involved. Here, as a result of the decision I made earlier, it
follows that when on May 25 the Deens sought access to take away what I have
held was still their greenhouse, they were refused permission to come and
remove it. In my judgment, that was clearly a denial of the plaintiff’s title
to it, though of course a perfectly sincere one so far as the defendants were
concerned in view of what they believed the position to be; that was a denial
of the plaintiff’s title which was an act of conversion, and in fact the writ
claiming damages for conversion was issued on September 22 1980.
Therefore, the
questions are (i) what damages has the plaintiff established as a result of
that act of conversion, and (ii) has the plaintiff failed to mitigate those
damages in a way she should reasonably have done?
Mr Garnett
first relies on a letter written in December 1980 where there was an
unconditional offer from the defendants’ solicitors to the plaintiff’s
solicitors to let the plaintiff come and remove the greenhouse. The words are:
I would
confirm that my instructions are that the plaintiff be at liberty to remove the
greenhouse from the land.
Because of that
statement, he submits that the only question to be decided is what loss did the
plaintiff suffer during a seven months’ withholding? I do not think that is the correct approach
having regard to my findings on mitigation.
In my
judgment, the first question to be decided in considering the damages is Mr
Deen’s evidence as to the sale which he said he managed to secure of the
greenhouse for a sum of £1,900 plus VAT. His evidence on that was rather vague
as he was not able to remember the purchaser’s name and address or very many of
the details, and not unnaturally that evidence was challenged — and very fairly
challenged — by Mr Garnett on behalf of the defendants. It is, however, true
that Mr Deen has been in the United States all these last five years — perhaps
beforehand, too — and so, not entirely surprising, he does not remember with
crystal clarity the details of the subsale, which he avers took place. There is
also the fact that as early as January 3 1981, in answer to the letter to which
I have just referred, the plaintiff’s solicitors answered that letter by
saying:
However, as
we informed you
there had
obviously been a telephone conversation
owing to the
delay in respect of this our client has lost the purchaser she
that is Mrs
Deen
had for the
greenhouse and although to mitigate her loss she is trying to find another
purchaser, nevertheless at this moment no purchaser has been obtained and
therefore the matter must proceed.
In other words,
there was immediate reliance on that alleged subsale the moment the matter was
raised at the New Year 1980/1981.
I accept the
plaintiff’s evidence that there was such a sale. The whole thing was obviously
oral and there was no documentary evidence to confirm it, and whether it was
just on the point of becoming a binding contract or actually had done so may
not be very important. What I am quite satisfied of, and I find as a fact, was
that the plaintiff either got a price or had an imminently prospective price of
£1,900 plus VAT, which seems to me in fact to be a sensible sort of price for a
greenhouse which was about a year or more old and, therefore, still in pretty
good condition; though of course any piece of perishable, structural equipment
like this tends to depreciate fairly quickly the moment it is installed on its
first site, and therefore it is not surprising that it would have gone down by
getting on for a third or 30 per cent or so even after a year.
Did the
plaintiff fail to mitigate the damages?
There is evidence from both Mr Deen and from David, which I accept, that
Mr Deen placed advertisements, and indeed those are referred to by the
plaintiff’s solicitors in the letter which I have just read. It is perfectly
plain that those advertisements were unfruitful. Now, in those circumstances,
is it reasonable to say that Mr Deen ought to have come in and got the
greenhouse when it was offered back to him in December 1980, and then either
held on to it indefinitely or dealt with it in some other way? In my judgment, such a suggestion, with all respect
to Mr Garnett, is unreasonable. There he is in America. It is a very difficult
matter for him to deal with. He has no buyer in prospect, and therefore would
be obliged to store this very easily breakable equipment somewhere, no doubt at
very considerable expense, insure it and so on and so forth. Therefore, I do
not think that it was reasonable to expect him to accept the offer.
Consequently I hold that the plaintiff has not failed to mitigate the damages.
However, there
is a final question of importance as to the proper valuation. David’s evidence
was that it would have taken him and a mate seven working days to dismantle
that greenhouse, and I should think, looking at the size of it and bearing in
mind that screwed-in parts are sometimes difficult to dislodge after a period
of time, that is the very minimum it could possibly have taken. Over and above
that, it is inevitable when dismantling a structure of this kind that there
will be some breakages, certainly of the glass, and there was also the question
of transportation, which was put in by one witness at £100, to carry the very
big pile of material which would accumulate, once this greenhouse was totally
dismantled, to the purchaser.
I can only do
the best I can, but even allowing for the fairly low wages which David appeared
to be willing to accept — though whether his mate would have been so charitable
we do not know — I think that the correct figure for the expenses, allowing for
dismantling, breakages and transport, is the sum of £400, and consequently
there will be judgment for the plaintiff for £1,500, subject to any additional
matter such as interest.
The plaintiff
was awarded in addition £360 in respect of interest, and costs on the highest
county court scale, the latter not to be enforced for the period after the
defendants became legally aided without leave.
