Estate agents’ commission–No express instructions to sell house–Would-be agent has no quantum meruit claim based on continued efforts to sell property–No implication of an agreement from vendor’s supposed ‘acceptance’ of continued intervention by insurance broker
This was a
claim by Mr and Mrs Herman Rosenthal, of Chanctonbury Way, Woodside Park,
London N12, against Mrs K M Allan, of Wyre Grove, Edgware, London, for
commission of £1,093 on the sale of Chatsworth, Austell Gardens, Mill Hill,
London NW7, in 1972.
Mr P H Latham
(instructed by John Wood & Co) appeared for the plaintiffs, and Mr I
McCulloch (instructed by A E Hamlin & Co) represented the defendant.
Giving
judgment, O’CONNOR J said: Early in 1971 the Allan family were living in a
house named Chatsworth, Austell Gardens, Mill Hill, and the freehold was in Mrs
Allan’s name. In the summer of 1971 the marriage broke down and Mrs Allan put
her affairs in the hands of her solicitor, Mr Cowan. In September of 1971 Mr
Cowan advised her that the house should be put up for sale, and he instructed
Hamptons, well-known estate agents, to act as agents to find a purchaser for
the house. Among other things they advertised the house in The Sunday Times
in October 1971, and among the people who saw the advertisement and did
something about it were a Mr and Mrs Milton. Mr Milton is a baker in a
substantial way of business, and he and his wife were looking for a new house
in the Hampstead or Totteridge or Mill Hill area. Along with particulars of
other houses, the particulars of this house were sent to them by Hamptons in
October 1971. Apparently they drove past it, did not like the look of it and
forgot about it. Hamptons rapidly busied themselves with finding a purchaser
for the house. At some stage during the winter of 1971-72 Mr Allan through his
solicitors put a caution on the title, and negotiations had to come to a halt.
It is quite plain that the matrimonial proceedings were of considerable
complexity and very anxious-making for Mrs Allan. She had got children whose
schooling was in dispute, and I need not say more than that I am quite
satisfied that the issues of children and money were occupying her time to a
degree which is understandable, and she relied entirely on Mr Cowan with whom
she was in daily communication, including the weekends, about her affairs. At
some stage it must have become plain that the hearing of the divorce
proceedings which were to be contested had been fixed for, I think, May 3 1972.
It is obvious that in preparing for the hearing of those proceedings Mrs Allan would
be subjected to great personal pressures during the run-up period to the
hearing. The Miltons in the meantime had been negotiating for one or two
houses, and this was a time when there was a seller’s market and if no contract
was signed the would-be buyers found that the offers that they had made subject
to contract had been topped by somebody else. Nevertheless, as I have said, the
Miltons were negotiating for one or two houses which they liked. As far as Mrs
Allan’s house was concerned, Hamptons had produced some people called Lavey who
were interested in buying it and had made an offer subject to contract which
was thought to be a reasonably good one. But as I have said, nothing could be
done about it until the dispute between Mr and Mrs Allan had been resolved.
The plaintiffs
in this case claim that they are entitled to be paid the estate agent’s
commission normally paid by a vendor by Mrs Allan, because they say they were
engaged as her agents and effectively introduced the purchaser who bought the house.
Mr Rosenthal is an insurance broker, having his own business in central London,
and his wife helps him in the business. They have a small office at home. They
both told me, and I accept their evidence about it, that from time to time
their business put them in touch with people who were either wishing to buy or
to sell houses, and from time to time they went into what they called the
estate agent’s business and acted as agent and collected commission. They said
that they had done this over the years a few times, about 10 times. There is no
reason why they should not have done so, and I accept their evidence that they
have done so. They had known Mr Allan’s family for a number of years, because
Mr Rosenthal had been his insurance broker. I have not been told what Mr
Allan’s business was, but there was that relationship. Equally Mr Rosenthal had
been insurance broker to Mr Milton and his businesses, and there was evidence
that Mr Milton owned some 14 patisserie shops in various parts of London. The
Rosenthals learned from Mr Allan that the matrimonial home was to be sold. Mrs
Rosenthal had never been to it; Mr Rosenthal had. They came to the conclusion
that the house, which they knew to be a new one, might be just the thing which
their clients the Miltons were looking for. They decided that it might be a
good idea to see whether a purchase by the Miltons could be effected. It is not
clear from their evidence whether they had any discussions with the Miltons
about it beforehand, but they certainly decided that they would see whether
they could put the two parties together. The first thing to do was to go to see
Mrs Allan and the house. They achieved that some time in April. According to
them it was on April 10; according to Mrs Allan it was much nearer her divorce,
she thought it was the Sunday before the divorce, that would be April 30. It
does not matter, because there is no dispute that a meeting did take place. It
was not by any prior arrangement. Mr and Mrs Rosenthal got into their motor
car, drove over to Mrs Allan’s house and found her at home. She was very
suspicious of their arrival, because she knew that Mr Rosenthal was her
husband’s insurance broker, and she thought that he was introduced as a spy
into the camp preparatory to the divorce suit which was about to be heard.
There is a
dispute of evidence as to what took place at that meeting. Ultimately they all
went in the house, and
for the house who would be very interested in it.’ After she had seen round the house she was
enthusiastic, thinking it was just the thing that the Miltons were looking for.
According to her, in the course of conversation she said to Mrs Allan, ‘If we
find a purchaser who will buy the house, will you pay us the ordinary estate
agent’s fee?’ According to her, Mrs
Allan said, ‘Yes.’ Mr Rosenthal’s
account of the crucial conversation was a bit different. According to him, it
was he who did the talking. For my part, having heard both Mr and Mrs Rosenthal,
the probability is that it was Mrs Rosenthal who did the talking. However, Mr
Rosenthal’s evidence about this was that he told Mrs Allan that he had a
potential purchaser and asked whether he could bring him to see the house; that
he said in the course of the conversation, ‘In the event of my clients being
willing and able to purchase the house, I would look to you for commission,’
and that Mrs Allan said, ‘Certainly.’ He
said, ‘I think I explained I would require the normal estate agent’s commission.’ So it is the plaintiffs’ case that there was
an express agreement made on that visit, whether it be April 10 or April 30
matters not, whereby Mrs Allan agreed that they should act as her agents to try
to sell the house for her. Mrs Allan says it did not happen that way at all.
She denies that there was an express agreement to pay commission or that
commission was mentioned. According to her, the Rosenthals came, and they were
enthusiastic on behalf of their friends and clients, the Miltons; they wanted
to see the house, and she told them that she could do nothing without referring
to Mr Cowan. She allowed Mrs Rosenthal to look at the house, and according to
her there was no agreement on the payment of commission or that the Rosenthals
should act as her agents.
As to
precisely what took place at that meeting, the burden of proving an agreement
is on the plaintiffs. In my judgment, for reasons which will appear quite soon,
I have come to the clear conclusion that they have not discharged that burden.
Mrs Allan was in no condition to make an agreement with anybody, and I am quite
satisfied that she would never have dreamed of hiring estate agents for the
sale of a house at this stage without conferring with Mr Cowan. If the question
of selling the house was discussed in any commercial terms, I am satisfied that
all that she said to the Rosenthals was, ‘Well, you will have to get in touch
with Mr Cowan,’ And indeed, that is their evidence. They accept that at that
meeting she said, ‘You will have to get in touch with Mr Cowan.’ Now the Rosenthals’ account of the matter,
given particularly by Mrs Rosenthal, is that an attempt was made–and I think
this was agreed by all parties to be on a Sunday afternoon–to get in touch with
Mr Cowan without success, and according to Mrs Rosenthal, Mrs Allan was then
persuaded to ring up Mr Milton then and there and make an appointment to view
the house. Mrs Allan stout-heartedly denies that that occurred, and I prefer
her evidence on that topic. I am satisfied that all that happened at this
meeting was that Mrs Allan told the Rosenthals that if they wanted to busy
themselves with introducing the Miltons to the house they should get in touch
with Mr Cowan. She may or may not have said ‘Hamptons.’ If that be right, then there was no express
agreement made at that first meeting between the parties that the Rosenthals
should act as the defendant’s agents in the sale of the house. I am fortified
in coming to that conclusion because it is common ground between Mr and Mrs
Rosenthal and Mrs Allan that at that meeting nobody said, ‘What are you asking
for the house? What is the price?’ It is quite plain that the sort of agency
which Mr Rosenthal speaks to cannot be concluded, namely to introduce a ready
and willing purchaser to the house, until you know what it is the purchaser has
got to pay. It is common ground that they never asked and did not know what the
asking price of the house was. I have no doubt that being shrewd business
people they could put it in a bracket, but there it is: at that meeting they
did not ask.
To my mind it
is an absolutely crucial factor in setting up the business relationship of a
vendor and agent that either the vendor should say, ‘I have been advised that
the house is worth so much and it is that sort of figure that I am looking for
or better,’ or alternatively should say to somebody who is a would-be estate
agent, ‘Will you please advise me as to what I ought to ask for the house?’;
and it is not suggested by the Rosenthals that they fitted into either of those
positions. On their own evidence it is quite plain that no concluded agreement
was come to. I am quite sure that Mrs Rosenthal in particular has now convinced
herself, as a result of what happened, that she did mention commission and that
Mrs Allan agreed to pay it. I can well understand how she has come to that
conviction. It was a result of what took place subsequently. But I am quite
satisfied that it did not happen that way, and that there was no agreement by
Mrs Allan to pay estate agent’s commission or any commission, nor was there any
agreement by her to engage the services of the Rosenthals as her agents to sell
her house at that time. She looked upon them, and I think rightly, as people
who were interested on behalf of their client, Mr Milton, and if she thought
about it at all, which is unlikely, she assumed that any financial reward that
might come to the Rosenthals would result from their relationship with the
Miltons. She said in her evidence that she realised that the Rosenthals were shrewd
business people and they were not in this for nothing, and she assumed that
they were going to make some money out of insurances which they would place for
the Miltons if they got the house.
Now that being
the position, the claim based on an express agreement must fail. It is said in
the alternative that the court ought to imply a binding agreement at a
subsequent stage between the parties as a result of which the court ought to
order the defendant to pay a remuneration to the Rosenthals on what is known as
a quantum meruit. The case is put in this way. It is said that after the
initial meeting it must have become apparent to Mrs Allan that the Rosenthals
would busy themselves mightily in trying to effect a sale of her house to the
Miltons and a purchase by the Miltons of her house. At some stage the court
ought to imply an agreement on her part in continuing to accept their
intervention as imposing a duty upon her to pay them some remuneration. Well,
what happened? There has been a good
deal of dispute about the form the negotiations took at the end of April and in
particular during the early part of May. What is clear is that on May 17 Mr
Milton signed a contract to buy the house for £76,250. At a later stage that
price was adjusted because there was a dispute over some of the boundaries.
That fact is without doubt clear. How did it come about? The Rosenthals having seen the house
undoubtedly persuaded the Miltons that it was just the house for them, and it
became necessary to get them to see it. Mr Rosenthal’s evidence about it is
that he was told he had to arrange this through Mr Cowan, and that he did
telephone to Mr Cowan and ask him whether it would be all right to view the
house. Mr Cowan was not overenthusiastic, because the state of affairs at this
stage was that the divorce suit had been settled, and it had been a term of the
settlement that the caution should be lifted and that Mrs Allan should effect a
sale of the house within three months, and that the money should be applied in
certain agreed ways under the settlement, one of which was that part of it be
placed in trust for the children of the marriage. It was therefore well
appreciated by Mr Cowan that it was his duty to get the highest price that he
could for the house.
Mr Cowan has
got no recollection of this telephone call. I am satisfied that there was such
a call to him. I am not
Allan’s affairs to a very great degree, and I am sure that he acted perfectly
properly and successfully. I am satisfied that there was a call to him in which
he agreed that the Rosenthals could take the Miltons to see the house. At that
stage the Laveys were making further offers, and they were standing at about
£65,000. It was Mr Rosenthal’s evidence that he asked Mr Cowan how much the
house was going for, what was the asking price, and was told £70,000. I am
satisfied that his recollection about that conversation is wrong. I do not
think he was told the price; I do not think he asked it. I believe that at that
stage, whether it was Mr or Mrs Rosenthal who made the phone call (and it
matters not), they were only concerned in getting an appointment for their
clients Mr and Mrs Milton to view the house. In due course that was arranged,
and on May 14, which was a Sunday, Mr and Mrs Rosenthal and their son and Mr
and Mrs Milton went to see the house by appointment. The fact that I am
satisfied Mr Rosenthal had not inquired the price emerges from the evidence of
Mr Milton. After he and his wife had looked round the house–I may say that they
recognised from the outset that it was a house on which they had some
particulars which had long since been thrown away and forgotten back in October
of 1971; they naturally kept quiet about that, and nobody is to criticise them
for so doing–having looked over the house, Mrs Milton fell for it and was
extremely enthusiastic and said it was just the house that she wanted. Mr
Milton gave evidence to say that he said to Mrs Allan, ‘Well, how much do you
want for the house?,’ and got the answer, ‘£70,000.’
Now I do not
believe, if the Rosenthals had known that that was the asking price, that it is
credible that the Miltons would not have been told so by them. Mr Milton’s
evidence is clear that he did not know what was being asked until he asked Mrs
Allan, and she agreed that he had asked her and that she had said £70,000, and
I accept that evidence about it, and it throws a lot of light on the true
nature of the relationship in this case, because it follows that as at that
meeting when £70,000 was asked, Mr Milton said on the spot, ‘I will pay
it.’ Of course he was told, ‘You will
have to go and see my solicitor Mr Cowan on the Monday morning.’ It is quite apparent, if that situation is
accepted, that Mr and Mrs Rosenthal, who had been busying themselves about this
matter, had been doing so, if anything, as agents for the purchaser, for the
Miltons. The evidence, indeed, of what took place on May 14 confirms that,
because after Mrs Allan had said, ‘I want £70,000 for the house,’ according to
her (and I accept her evidence about it) Mr Milton and Mr Rosenthal conferred
about it. They were talking about mortgages and what money could be raised on
it and so forth. I am satisfied that that took place, and it all points to the
true position that the Rosenthals regarded themselves as acting for the Miltons
and not for Mrs Allan, because if they had been really acting for Mrs Allan it
would be an absolute prerequisite that they should find out what sum of money
was being asked for the house before they went round looking for purchasers,
and they did not do so. The true relationship at that stage was that they were
advising Mr and Mrs Milton.
The next two
days were extremely busy, because I may say that on the periphery of the case
Mrs Milton had telephoned Hamptons. She had done that after Mrs Rosenthal had
learnt either from Mrs Allan or Mr Cowan, it does not matter, that Hamptons had
got the agency for the house. She had communicated with Hamptons, spoken to Mr
Sharpe, said that she had got a possible purchaser for this property, but she
was not prepared to reveal the name of the purchaser, and asked if Hamptons
would pay a split commission. That they refused to do. That again points to the
fact that she did not think that she had got a direct agreement with Mrs Allan
for the full commission, because there would be no point in asking Hamptons to
split a commission if she had got a firm agreement with the vendor to pay the
full commission if they produced a purchaser, and there would be no need for
that conversation which admittedly took place. Mrs Milton telephoned Mr Sharpe
and she was told the house was sold, because indeed a firm offer from the
Laveys had been made through Hamptons at £65,000 or thereabouts, and that happened
apparently on May 8. Mrs Milton, who had not seen Chatsworth at that stage,
said, ‘Well it is only a standby in case the negotiations for the house in
Totteridge for which we are bargaining fall through,’ and she was not
overinterested in it. As far as Hamptons were concerned, nothing more happened.
On Monday May 15 Mr Milton’s solicitor went along to see Mr Cowan and to try to
pay him £7,000 deposit. Mr Cowan refused it; he said no, that the house would
have to go to the highest bidder. There was a firm offer from other would-be
purchasers, and he would have to inquire whether they were prepared to pay more
than £70,000 before he could advise his client to sign a contract. During
Monday and Tuesday the house went up. The Laveys made an increased offer. Mr
Milton made an increased offer, and Mr Cowan then came to the sensible
conclusion of saying: ‘Well, I have got two people who are ready and willing
purchasers, both with the money, both bidding for the house. The sensible way
of resolving this is for each of them to put a sealed bid in an envelope and
the one which is greatest wins.’ That
was to take place on Wednesday morning, May 17.
According to
Mrs Rosenthal, at some stage on the Monday or the Tuesday, it matters not, Mrs
Allan telephoned her and said to her effectively: ‘If Mr Milton will put an
extra £1,250 in his envelope, he will have the house. Don’t tell Mr Cowan I am
taking sides.’ I am quite satisfied that
this conversation in this shape never took place at all. Whether or not there
was some conversation between Mrs Rosenthal and Mrs Allan about the sale of the
house, I am quite satisfied that that was not said to Mrs Rosenthal. I do not
know where she got it from. It may be that it was her brain-child to say, ‘The
way in which Mr Milton will win, because he has already offered £75,000 or even
£76,000, will be just to top it up a little bit to see if we can beat the
Laveys.’ I am satisfied that Mrs Allan
did not say that. It is really not credible that she would say, ‘Don’t tell Mr
Cowan about it,’ because her view had been (and I accept her evidence about
this) that she had been negotiating with the Laveys for a long period and that
she was anxious for them to have the house, and that she had been told by Mr
Cowan that the house must go to the highest bidder. If the Miltons turned out
to be the highest, they were to have it. There was no earthly reason for her to
take sides in the matter at that stage, and I do not believe she did.
Therefore, I do not accept the evidence that she intervened in that fashion.
Once that finding has been made, then the basic ground on which an agreement
can be implied that she agreed to accept the services of the Rosenthals as her
agents for the sale of her house disappears. They are left where they always
were, as agents for Mr and Mrs Milton. The fact is that Mrs Milton said that
she received a phone call from Mrs Rosenthal saying that she had been told this
by Mrs Allan. I have no reason to doubt that there was such a conversation. It
may be that it was just to provoke the Miltons into putting up a little bit
more, because I am quite satisfied that the Rosenthals wanted the Miltons to
have the house. Mrs Milton was desperately anxious to have it, and it may be
that that is how it came about. I am quite satisfied that nothing took place at
that stage which altered the relationship between the Rosenthals and Mrs Allan
so as to make them her agents for the sale of a house requiring her to
remunerate them.
Mr Milton put
his bid in his envelope. The Laveys’ representative arrived, and he tried to
impose a further term on
Lavey’s representative walked out and his envelope never was opened. That left
the Miltons with the field clear. £76,250 was opened and accepted and the
contract signed. On May 18 Hamptons sent in a bill for commission for selling
the house. Mr Cowan obviously told Mrs Allan about it, to which she said: ‘Good
gracious me, they have not sold the house. The Rosenthals introduced the
Miltons.’ The correspondence shows that
there was then a dispute, but at that stage it is noticeable that Mrs Rosenthal
does not suggest either orally or in writing that she ever said to Mr Cowan:
‘We are entitled to the commission because Mrs Allan agreed that we should act
as her agents for the normal commission. We have done so, we have sold the
house, we have succeeded in getting £11,000 more than Hamptons were trying to
get rid of it for, and we are entitled to the full commission.’ What she said is that she had a conversation
in which there was a consideration as to whether she should be paid half the
commission, and that Mr Cowan was saying, ‘Yes, that seems fair,’ as I have no
doubt from the correspondence, because he replied to Hamptons having received
their letter asking for £1,200. I will say no more about the question as to
whether they were entitled to any commission over this transaction, about
which, as I have said, they had done nothing. What Mr Cowan wrote to them was:
‘Thank you for your letter. Upon referring your account to Mrs Allan I am
instructed that Mr Milton who has agreed to purchase the property was not
introduced through your firm, that you did not negotiate with him, and although
your firm’s account refers to discussions with a Mr and Mrs Milton, would you
please let me know if this is the case, and if so upon what basis you consider
that commission is due to your firm. In fact a claim for the commission has
been made to Mrs Allan from the people who did introduce Mr Milton,’ and that
was the Rosenthals. In the end, for whatever reason, the house ultimately went
to completion on October 11 1972, and in due course, for whatever reason, Mr
Cowan decided that it was Hamptons who should be paid commission on the sale
and they were to be paid.
Now what about
the Rosenthals? They had written on this
matter a couple of times. In June Mrs Rosenthal wrote to Mr Cowan: ‘Referring
to our conversation over the phone of some weeks ago when it was agreed that
you would write to me confirming the position following my introduction of the
purchaser of the above property, the contracts have now been exchanged, and I
should be obliged to have your early reply regarding the commission due to me
for this transaction.’ Mr Cowan replied:
‘Thank you for your letter. While it is not admitted there is any commission
due to you from Mrs Allan, we are pursuing the matter with Hamptons and will
write to you again in due course.’ That
is June 28. Nothing happened. There was some question during the summer as to
whether the deal was going to go on, because there was some difficulty about
making title to parts of the property, and indeed, as I have already said, an
adjustment in the purchase price was ultimately negotiated and agreed. In
September Mrs Rosenthal wrote to Mr Cowan: ‘Thank you for your letter of June
28. I have been informed by both vendor and purchaser that completion will take
place on September 29, and I am looking forward to hearing favourably from you
in early course regarding the commission due for effectively transacting the
sale of the above property.’ Mr Cowan
replied a month later: ‘We thank you for your letter of 14th. As we have stated
previously in correspondence we do not agree that there is any commission due
to you on the sale of Chatsworth.’
When that
letter was received, the Rosenthals put the matter in the hands of their
solicitors, Alexander Fine & Co. The partner dealing with it at the time,
on their evidence, was a sick man, and he may or may not have got the correct
part of the story. Mr Fine apparently was ill, and in due course dropped out of
the matter. But the fact is that on October 20 on behalf of the Rosenthals he
sent off a letter to Mrs Allan saying: ‘Mr Rosenthal informed you that he had
somebody who was looking for a house, and that if your house was suitable this
person would buy your house, and in these circumstances Mr Rosenthal stated
that he and his wife wanted the estate agent’s commission.’ So it will be seen that in October the first
letter trying to set out an express agreement is written. The Rosenthals’ story
is that it was Mr Rosenthal who did the talking and made the agreement. As I
have already pointed out, on Mr Rosenthal’s recollection of what he thinks he
said, no agreement was possible. The solicitor then gave Mrs Allan seven days
to pay £1,093 or to be subject to a High Court action for its recovery. No
doubt because he was ill, he sent the letter to the wrong address, and the
people who received it hunted round. They thought they knew some people called
Allan somewhere nearby, because Mrs Allan had moved by now to an address in
Edgware. They hunted round and they found that they did know somebody called
Allan. They assumed it must have been those people, whoever they were. I think
it was a taxi-driver. At all events the letter was passed to him. He opened it
to see whether it was anything to do with him. He found that it was not. He
knew where the real Mrs Allan lived, and he took it round to her. She was very reasonably
extremely angry and upset that a letter of this nature from the Rosenthals
should reach her out of the blue. Having tried to get hold of Mr Cowan, because
again it was a Sunday, she telephoned to the Rosenthals.
There is a
dispute as to what took place on that occasion. According to Mrs Allan, Mr
Rosenthal answered the telephone, and he remained on the phone together with
his wife on an extension. Mrs Rosenthal did a great deal of talking; there was
discussion about commission, and so forth, and about the letter. She said: ‘Why
did you send this letter to me? What was
all this about, giving me only seven days and sending it to the wrong address?’
and all the rest of it, and Mrs Rosenthal asked a number of questions, the
details of which Mrs Allan cannot remember, but Mrs Rosenthal talked 19 to the
dozen–and having heard Mrs Rosenthal, and this is no criticism of her, I am
satisfied that she did talk 19 to the dozen because it is her way to do so; I
am not blaming her for it; it is just the way in which she is made. According
to Mrs Rosenthal, she made a detailed note after the conversation was over,
recording her recollection of it, which is set out in the agreed bundle of
correspondence. According to her, Mrs Allan having telephoned her said, ‘Fay,’
because they used Christian names, ‘are you going to take me to court?’ According to Mrs Rosenthal, she said,
‘Yes.’ So Mrs Allan said, ‘Well, why
me?’ and got the answer, ‘Because you gave me permission to sell your
house.’ And she said, ‘I do not want to
go to court.’ She said, ‘I do not want
to lose the commission.’ Now it is
noted, ‘You gave me permission to sell your house’ is quite different to
saying, ‘You agreed to pay me commission if I sold your house.’ According to Mrs Rosenthal’s note of this
matter: ‘I reminded her that she had told me that she had spoken to Mr Cowan
about the commission, and he thought I was a shrewd businesswoman and he would
try to get the full commission for me.’
Then she records that she put the following questions: ‘Did you give me
permission to sell your house?’ Answer:
‘Yes.’ ‘Did you say that you would give
us the commission?’ Answer: ‘Yes.’ ‘Did I get you £11,250 more?’ Answer: ‘Yes.’ ‘Did I in fact sell your house?’ Answer: ‘Yes.’ ‘Do you want me to have the commission?’ Answer: ‘I know I have got to pay commission,
and I want you to have it.’ Then
according to Mrs Rosenthal the conversation went on, saying that Mrs Rosenthal
said that it was her impression
the money was all to go into a trust fund. She got the answer from Mrs Allan,
‘If that is what happens, I will give you half the commission.’
This was,
according to her, a conversation which Mrs Rosenthal said took place at a
social meeting when she and her husband went to call on Mrs Allan some time in
September. The precise date is not known. It may be that it was September 14 or
thereabouts, but it does not matter, at some stage late in September, perhaps
early in October. The parties are agreed that there was an occasion when this
occurred, because a Mrs Downs was present arranging a party for some children.
I accept Mrs Allan’s recollection about that meeting that she never offered to
pay £500 to Mrs Rosenthal. I am quite satisfied she would not have dreamed of
doing any such thing without consulting Mr Cowan. She is not that sort of
woman. I suspect that Mrs Rosenthal has convinced herself of this conversation
because throughout this period she, not unnaturally, felt that she and her
husband were entitled to something. They had brought on the sale, they had
introduced the purchaser, they had got another £10,000 odd for the vendors, and
I can well understand that they thought that they should have some
remuneration. But I am quite satisfied that Mrs Allan did not say this at the
time, and even if she had it would not affect the issue. The purpose of this
was to try to persuade me that Mrs Allan had made an admission that she had
engaged the Rosenthals as her agents to sell the house. In so far as the
answers suggest that, I reject them. I am quite satisfied that Mrs Allan was
not intending to, nor did she, make any admission that she had engaged the
services of the Rosenthals to act as her agents for the sale of the house. If
anything is wanted to clinch that view, it comes from Mrs Rosenthal’s
recollection as to how the phone conversation of October 22 ended. According to
her, she said there was little more discussion appertaining to the sale of the
house to Mr Milton. ‘Mrs Allan agreed that everything that I said was right,
and she said to me ‘What can I do?’ I
said to her, ‘Your expenses are going to be very high.’ She said, ‘You are telling me; I know, but I
cannot change my solicitor in midstream; what should I do?” Mrs Rosenthal said: ‘I said to her, get in
touch with your solicitor and tell him that it is you who is paying the piper
and you will call the tune. She said she would phone her solicitor at 9.30 on
Monday morning and phone me during the week.’
Having seen Mrs Allan in the witness-box, I am quite satisfied that at
that stage the very last thing that she would have suggested doing would be
sacking Mr Cowan as her solicitor. It is wholly out of character, and I am
quite satisfied that she said nothing of the kind. If anything was said about
changing solicitors, it came from Mrs Rosenthal and not from Mrs Allan, and if
so it certainly was not understood by Mrs Allan in a plethora of conversation,
I can well understand that too.
If the whole
purpose so far as the plaintiffs’ case is concerned is seeking to set up this
conversation as an admission of an agreement to engage the services of the
Rosenthals, it gets nowhere near it. I reject the plaintiffs’ account of that
conversation. The Rosenthals say that Mr Rosenthal was not even in the house,
that he had gone off to hunt for this letter which had been wrongly delivered.
I prefer Mrs Allan’s recollection about what took place on that occasion. In
the result, the plaintiffs have not succeeded in making out any case which
entitles them to succeed in this action. It need only be said that I can well
understand that they feel sore about it, that they did introduce the purchaser,
they did as I have said get considerably more money than the agents who were
handling the matter before. But they are not entitled to recover that
commission from the defendant unless they can show that there was an express
agreement to pay them the commission, or alternatively that there was an
agreement, either express or one which was to be implied, that they were
engaged to act as the defendant’s agents in the sale of her house, and she
would then remunerate them on a quantum meruit. They have not succeeded
in doing that. The truth is that throughout the relevant part of this case,
which is up to the moment when contracts were signed, they were acting as the
Miltons’ advisers and agents, and they were never retained by the defendant. It
follows that although I have got considerable sympathy for Mr and Mrs Rosenthal
in the way in which this transaction has gone, they are not entitled to succeed
in these proceedings, and there must be judgment for the defendant.
The defendant
was awarded costs.
