Estate agents’ commission — Appellant instructed two firms of estate agents to sell his house and both firms claimed commission on the sale — Purchaser had originally been introduced by one of them but was later told by that firm that the house was no longer on the market — Purchaser was subsequently reintroduced to the appellant by the respondents, who had ascertained that the house was still on the market — Appellant compromised the commission claim by the other firm but resisted the claim by the respondents — County court judge found that the reintroduction by the respondents was the effective cause of the ultimate sale — This was a question of fact for the judge and on the basis of it the respondents were entitled to their commission — ‘Very regrettable’ that the appellant had to pay two lots of commission, but his appeal must be dismissed
This was an
appeal by Michael Bernard John Mangles from a decision of Judge Blackford at
the Thanet County Court, holding that the respondent firm, Robert Drummond,
were entitled to commission on the sale of the appellant’s house at 35a
Leicester Avenue, Cliftonville, Kent.
T Etherton
(instructed by Bracher, Son & Milkin, of Maidstone, Kent) appeared on
behalf of the appellant; J C Marks (instructed by Marsland & Barber, of
Margate) represented the respondents. The court did not call on Mr Marks.
Giving
judgment, WALLER LJ said: This is an appeal from a decision made by His Honour
Judge Blackford in the Thanet County Court on October 23 1980. It arises out of
a claim for estate agents’ commission in these circumstances. The appellant
wished to sell his house, 35a Leicester Avenue, Cliftonville, Kent, and
instructed two separate agents — the respondents, on the one hand, and a firm
called Robert Crittenden & Partners on the other. I think the appellant
instructed the respondents just a week before he instructed Crittendens.
As a result of
his instructing Crittendens, they introduced a Mrs Hone as a potential
purchaser. They showed her the property, the asking price of which at that time
was £47,500. She offered £44,000. There was some negotiation, and the agents
said that the owner might accept £43,000, and as a result of that, Mrs Hone
offered £43,000. That was somewhere about July 31.
Then she and
her husband went on holiday and when they returned, there was a letter from
Crittendens, who said that an offer in excess of £43,000 had been made. Then
Crittendens spoke to Mrs Hone on the telephone and said this to her, according
to her evidence (because she was interested in the house): ‘No — forget all
about it — sold to someone else walking about with money in a suitcase’, and so
she asked whether they had any other property which was similar. That telephone
conversation was on August 10 and some 12 days later, on August 22, she went to
see Drummonds, the respondents. She was shown another property, and while being
shown that property she mentioned the property at 35a Leicester Avenue to
Drummonds — who of course were agents for that property as well as Crittendens
— and said she expected that it had been sold. Drummonds said no, it was still
on the market. So inquiries were made which established that the property was
still on the market and that if an offer of £45,000 were made, that would be
accepted. So Mrs Hone offered £45,000.
In due course
the purchase was completed and the arrangements between the making of the offer
and its acceptance and the matter being handed over to solicitors were in the
hands of Drummonds.
The terms on
which Drummonds were acting for the appellant were these:
Dear Mr and
Mrs Mangles, Re 35a Leicester Avenue, Cliftonville, Margate. We write to
confirm and thank you for your valued instructions for us to find a purchaser
for your property referred to above at the agreed asking price of £47,500
subject to contract. We also confirm that our fee for the introduction of a
purchaser who completes will be . . .
and I need not
read any further.
The appellant
had in fact been sued not only by the respondents, Drummonds, but by
Crittendens. The two actions had been consolidated and, on the morning of the
hearing before the learned judge, the appellant compromised the claim of
Crittendens but continued to deny the claim of Drummonds. So the only case that
was fought before the learned judge was the case of Drummonds.
Having set out
the facts in the way which I have mentioned, the learned judge went on in this
way:
It seems that
instructions had not been withdrawn from Crittendens or Drummonds, and in so
far as this action is concerned, not withdrawn from Drummonds it is certain.
The house was still on their books. Thus I find Mrs Hone was reintroduced to Mr
Mangles through the agency of and by Drummonds. This reintroduction was the
effective cause of the ultimate sale. The terms of the contract between Mangles
and Drummond have been fulfilled. The plaintiffs Drummonds are therefore
entitled to judgment.
It is only
fair to say that the learned judge set out a note of regret of the
circumstances in which that decision had to be made, and found it regrettable —
as I think I do also — that the two agents have not been able to come to some
arrangement.
But Mr
Etherton, on behalf of the appellant, has submitted that the learned judge was
wrong in the conclusion to which he came. He submits that first of all the
learned judge had not given sufficient weight to the fact that Crittendens had
done the major work in introducing the purchaser. It was through them,
submitted Mr Etherton, that she first became acquainted with 35a Leicester
Avenue.
I have not
mentioned one fact, and that is that just before August 10 there had been an
offer, which had been accepted by the Mangles, from a man called Nightingale,
and Mr Etherton submitted that the learned judge gave too much weight to that
prior offer and to Crittendens’ communications to Mrs Hone that the property
was off the market and was not available.
On behalf of
the appellant, Mr Etherton has drawn our attention to a number of cases of
estate agents claiming fees but with different sets of facts. It emerges from
those authorities that if an estate agent is the effective cause of the sale,
the final sale, he is entitled to his commission — and that is just what the
learned judge found because he said: ‘Thus I find Mrs Hone was reintroduced to
Mr Mangles through the agency of and by Drummonds. This reintroduction was the
effective cause of the ultimate sale.’
That is a
finding of fact. In one of the cases to which Mr Etherton has referred us,
namely Bartlett v Cole, which is reported in [1963] Estates
Gazette Digest 452 (188 EG 397), this court, consisting of
question of fact for the learned judge as to whether or not the agent was the
effective cause of the sale.
In my judgment
the learned judge in this case cannot be faulted for that conclusion. It is
true that there had been an original introduction by Crittendens, but it is
also true that it was Drummonds who ascertained that the property was on the
market — Mrs Hone having been told it was not previously — and it was Drummonds
with whom Mrs Hone negotiated, they acting on behalf of the appellant.
Therefore, in my judgment it is impossible to fault the learned judge in the conclusion
to which he came.
As I said
earlier, I share his regret that the unfortunate Mr Mangles in this case, as a
result, is having to pay two lots of commission — which is a very regrettable
set of circumstances — but the fact is that the conclusion to which the learned
judge came is one with which I do not think it is possible to interfere. I
would therefore dismiss this appeal.
WATKINS LJ: I
agree.
EASTHAM LJ: I
also agree.
The appeal
was dismissed with costs.
