Claims by purchaser for failure to deliver chattels sold with house and for failure by vendor to take proper care of property after contract, resulting in dilapidations or waste by removal of items which were part of the realty–Serious conflict of evidence as to chattels intended to be included in sale–No inventory and no specification in contract of sale–Inconsistencies in sets of particulars produced by agents and by two firms of sub-agents–Plaintiff’s evidence preferred by judge–Judgment for plaintiff on majority of matters comprised in claims–Object lesson on importance of inventory
These
proceedings before Judge Fay as Official Referee arose out of the sale by the
defendant, Maximilian Edmund Thomas Verderber, to the plaintiff, Brian Edwin
Ware, of a house called ‘Chalet Lethe’ at Letchmore Heath, Herts. The
plaintiff’s action alleged both failure to deliver chattels which the defendant
contracted to sell with the house and breaches of the duty of a vendor in
possession after a contract had been concluded to take reasonable care of the
property. Under this second head the plaintiff claimed damages for dilapidation
or waste due to the removal of various articles, some of which the judge found
to be part of the realty.
N Wood
(instructed by Breeze & Wyles) appeared on behalf of the plaintiff; R
Perkoff (instructed by Peters & Peters) represented the defendant.
Giving
judgment JUDGE FAY said: On June 1 1976 the plaintiff, Brian Edwin Ware,
contracted to buy a house called ‘Chalet Lethe,’ at Letchmore Heath in
Hertfordshire, from the
place and the plaintiff and his wife moved in. He and his wife thought that
they had bought with the property a number of chattels, including a double bed,
a freezer and a washing machine, and other items which I shall have to mention
in more detail. What they found when they moved in on July 9 was described in
the words of Mrs Ware. She said: ‘On arrival the place was in disarray. There
were packing materials all over the floors, the telephone lay smashed on the
floor and torn from the wall, two doors were hanging off their hinges, there
was food rotting in the refrigerator and there were empty packets lying about,
the sinks were dirty, the bedrooms were in disarray. Upstairs the bed had
gone,’ and she later found that the freezer, too, had gone and that the washing
machine was not the one which she had seen and which she says she thought her
husband had bought. Mr and Mrs Ware were so disturbed that they there and then
rang the estate agent, Mr Roberts, of Messrs Blades, who came, so Mrs Ware
said, and took note of the state of the premises.
Arising out of
what they found and of their disappointment Mr Ware brings this action. It
falls into two quite distinct parts. The action alleges firstly failure to
deliver chattels which it is said the defendant had contracted to sell with the
house, such as the three I have mentioned. But quite differently and apart from
that it alleges a failure by the vendor to take care of the property and to
have suffered dilapidations or waste by permitting the removal of matter and
fixtures which were part of the real property, and this last is put largely as
breach of the duty which a vendor in possession after a contract has to take
reasonable care of the property. It is sometimes said that he is a trustee for
the purchaser, although the judges who have pronounced upon the matter have
pointed out that he is not an ordinary trustee, and it is perhaps better to say
that he has a duty of care. Of course, the duty does not extend to improving
the property, nor to liability for what one might call fair wear and tear. The
rule is still caveat emptor, and if there are items of the property
which are in bad repair there is no necessity for the vendor to take active
steps to improve it. He has got to treat it as though it were his own. He must
not remove anything which is fixed to the realty, and as to any chattels which
he has contracted to sell, he must take reasonable care of them. This duty
arises strictly only as at the date of the contract, but where there are
representations made prior to the contract that certain items will be included
or that certain states of affairs exist, then it seems to me that there would
be a breach of the representation, which would be much the same in effect as
the breach of duty of care. So that there is some duty before contract as well
as after it.
Well now, the
evidence in the case was firstly that of the plaintiff, Mr Ware, and of his
wife, and supporting evidence was given on their behalf by their surveyor, who
had surveyed the premises on their behalf. The defendant gave evidence of his
account of the matters and called three supporting witnesses, whose evidence I
shall have to mention later in a little detail.
The
plaintiffs’ case is that according to their evidence–I keep using the plural as
regards the plaintiffs; strictly only Mr Ware is a plaintiff, but it was said
that the house was jointly his and his wife’s–Mr Ware was led to this property
by his wife and his wife was led to it by obtaining particulars from Blade
& Co, the firm of whom Mr Roberts was the representative and partner. The
particulars put out by Blade & Co mentioned a number of chattels in dealing
with the description of the property. It gave a price for the freehold of
£35,000 and included in its particulars such matters as in the drawing room
built-in book shelving, in the bedroom a double bed 7 ft by 6 ft, and in regard
to the kitchen, which had been well fitted out by the defendant with modern
equipment built into the kitchen, the following words were used:
Solid oak
units by Camera Dial with brass handles, seal finish Formica work surfaces,
twin circular bowl stainless steel sink unit with waste disposer, mixer taps,
Jan-air electric hobs convertible to charcoal grill, mess hotplate, Thermodore
self-cleaning double oven with built-in extractor, built-in refrigerator with
freezer compartment, Lavamat washing machine and Superjet dish washer, both
plumbed in.
Mrs Ware
visited the premises first on a date which she puts as February 26 1976, and
she and her husband went back probably at the beginning of March. There was
some discussion between the parties about the price, and the case for Mr Ware
is that after the second visit he and his wife discussed the matter and Mrs
Ware made a telephone call to the defendant offering a figure which was an
advance on what they had previously offered, namely, £33,500, and, said Mrs
Ware, that figure was accepted on the telephone, and it is the figure which
appears in the contract.
Now, as
regards what was shown as going with the property, Mrs Ware gave evidence that
on her first visit the defendant said that the bed was being sold in with the
price. He said that it was too big to be got out down the spiral staircase
which he had installed to the upper floor of this building. She says that he
demonstrated the kitchen equipment, including the freezer, although the latter
had not been electrically connected, and the washing machine, and said nothing
whatever about not leaving them, indeed by his demonstration gave her to
understand that, as the particulars had indicated, they were to be left. On the
second visit the defendant said, according to Mrs Ware, that a garage door
mechanism for the electrical operation of such a door, which was lying in the
garage, was to be left, as was a street lamp standard which was lying in the
garden. Mr Ware, who was present upon that visit, remembers the freezer being
demonstrated and its capacity being indicated to him and commended. He was
told, he says, by the defendant, that the garage door mechanism goes with the
property, and he was shown a quantity of tools in the garage and the defendant
said: ‘You can have all that.’ Both of them
said that the defendant explained that he was selling in a hurry because he had
a job offered in South Africa and wanted to get rid of his house before he
went. It was not everything he wanted to sell, clearly, because they offered to
buy some of his furniture, including a certain mirror, but that was not for
sale.
Now, in
addition to the items I have mentioned, there are in the statement of claim
assertions that the sale of chattels with the property included the items set
out in paragraph 2, numbered subparagraphs (4) to (8) inclusive: a television
aerial, an antique black iron door-bell with handpull, an antique black iron
door-lantern, a window box, 11 ornate black iron door-hinges and one
door-knocker. In so far as any of those are part of the real property, I shall
refer to them later. In so far as they are chattels, there is no evidence that
they were said to be included in the sale, and I exclude them from my
consideration of this part of the case.
The
defendant’s evidence about this matter was very different. He said that he had
recently, that is towards the end of the previous year, been divorced by his
former wife and that he had formed a wish, although his wife was in litigation
with him over money matters, that she and the house which he asserted she was
contemplating buying should have some of his chattels from the house which I am
dealing with, including in particular the three major items, the bed, the
freezer unit and the washing machine, and he says that he explained this to Mr
Ware and his wife and told them that as regards the washing machine he would
get another one, inferior in that it did not include a drier, and install it
for them. The bed he said he never had intended to sell at all. He said it got
into Blade & Co’s particulars by mistake. He said that Mr Roberts, when he
took particulars of the house for the sale, suggested putting in the bed
because of the difficulty of getting it out, but he, the defendant, thought
that it could be got out if necessary by removing the circular iron staircase,
which was not a matter of insuperable difficulty, and when he found it in Blade
& Co’s particulars he required it to be crossed out. Well, it was not
crossed out in the particulars shown to the plaintiff, but the defendant
produced a copy of the particulars in which the bed had been crossed out by
hand. He also produced a set of particulars from another agents, whom he said
were subagents,
however, produced particulars from yet another subagent, Mandley & Sparrow,
in which not only did the bed appear, but it was described in generous terms as
‘extra large and nearly new double bed.’
The defendant’s evidence was that he did not intend to sell those items,
except that he did intend to sell a washing machine which did not incorporate a
drier. He said that Mr Ware asked about the garage door and the tools, but he
refused to sell them to him, and he differed with the plaintiff and the
plaintiff’s wife on how the bargain was struck between them. The agreement upon
the price was not reached, he said, on the telephone, it was reached in a local
public house on the occasion of the second visit. He took, he said, Mr Ware
down to this public house, leaving Mrs Ware behind, and there he talked to him
in the public house and Mr Ware made his offer and he reluctantly, he says,
accepted it. He said: ‘I was pushed into a corner and reluctantly agreed.’ He used a number of expressions like that,
and it was quite clear that he resented the fact that he had been led into
selling at less than the £35,000 which was his asking price.
The plaintiffs
say that once they had handed over the deposit to the agents and set in train
the machinery of conveyancing the defendant refused to have anything to do with
them. He would not see them, he would not speak to them on the telephone. He
seemed to agree that there was very little intercourse between them after this
date and explained that he ceased answering the door to visitors because he was
pestered by people who, in this beauty-spot village, came knocking on the door
to see the house because there was an agents’ board up outside. He said that,
ultimately, having failed to get the agents to take the board down, he took it
down himself.
I will deal
later with the evidence about what I have called dilapidations, but upon the
major issue of what items were sold with the property there are these
observations which must be made. First of all, unusually, nothing was said in
the contract of sale about the chattels which were included in the purchase price.
The defendant said that he noted this. He had sold houses before. He knew that
if you sold goods with the house there was usually an inventory, and he
observed there was no inventory. He was asked why he had not taken it up with
his solicitors–and of course if there had at that stage been an inventory there
would have been none of this dispute–and he made what may well have been an
illuminating reply: ‘It was not detrimental to my interest that the purchaser
omitted an inventory.’ That is a
statement which bears a certain amount of thinking about. It has turned out it
may be detrimental to his interest, because it is always to everyone’s interest
to have put down in writing what they have agreed. But of course if he wished
to resile from something he had said or wished to leave matters in an uncertain
state, for some reason of his own, then it would be detrimental to that
interest if the purchaser had insisted upon an inventory.
Now as regards
the making of the agreement, or the first reaching of agreement, on which there
is, as I said, a remarkable divergence between the parties, whether the bargain
was struck over the telephone after the visit or whether it was struck in a
public house during the course of the visit. The defendant calls two supporting
witnesses. They are two close friends of his, Mr Dronk and Mr Miskulin. Mr
Dronk has said that he and Mr Miskulin were in that public house on that
evening. They often visited the defendant, and on this occasion they knew that
the defendant was showing some intending purchaser over the property and
instead of calling at his house they went, by arrangement, to the public house.
Mr Dronk said that he had seen the plaintiff, Mr Ware, in court and he observed
him in the public house that evening in conversation with the defendant. He
said: ‘We arrived after them. We stood behind them. We didn’t speak to Mr
Verderber because he was talking to his client. I tried to catch what was going
on. Mr Verderber said something about going to South Africa. Mr Verderber said
clearly, ‘I will not sell the bed, the deep freeze and the washing
machine.’ I do not remember any other
part of the conversation.’ Mr Miskulin
was not so clear about what happened. In the first place he did not identify
the plaintiff. He said: ‘It is difficult to say if I have seen him before. His
face looked familiar,’ but then so did Mrs Ware’s face look familiar to him, he
said, and it is not suggested that she was in the public house. He said: ‘When
we arrived Mr Verderber was there. A gentleman was with him. I presume it was
the man who bought the house. I did not see his face. We stood next to the bar
and the gentleman, that is the purchaser, had his back to me. Mr Verderber was
facing me. We were not introduced.’ He
was asked what he heard, if anything, and he said: ‘Mr Verderber showed the man
some papers. Mr Verderber raised his voice. He did mention something about a
bed and a washing machine, actually. I can’t remember what was said.’ Then he explained that in the public house he
and his friend were standing at the bar. He, that is Mr Miskulin, was at the
bar. On his right, with his back to him, was the customer, who was talking to
Mr Verderber, and beyond him was Mr Verderber. Mr Dronk was on Mr Miskulin’s
left, so that he was further away from the pair than Mr Miskulin was, and also
was presented with the back of the customer’s head. Mr Ware’s evidence on this
matter was short. He said: ‘I have never been in a public house with
Verderber.’
Well now,
these are the two different accounts and I have to make up my mind which of
them I believe, bearing in mind of course that the plaintiff has to prove his
case, and a judge in making up his mind on a conflict of evidence of that kind
goes upon what he thinks of the parties and what assessment he makes of their
veracity by observing them in the witness box, and he also looks for
indications or pointers as to where lies the truth. One looks first to see if
there is any documentary evidence pointing either way. There is, as I have
said, no inventory with this contract. There are the agents’ particulars, two
of which out of the three sets of particulars I have seen include the bed; two
of them mention a refrigerator with freezer compartment. I thought at one stage
it was being suggested that that referred to the ice compartment inside a
refrigerator, but I think that allegation, if it was ever made, was not
pursued, and it was said that that was a statement that there was a
refrigerator with a separate freezer but within the same framework. Of course
in this built-in kitchen framed in wood that would be a description of this
particular freezing device, and it seems to me that the freezer appears clearly
set out in the two sets of particulars in which it takes its place. The
defendant says the agents were careless in what they put. Particularly Messrs
Blades were careless in allowing the statement about the double bed to go out,
and to go out apparently to their sub-agents as well after he had told them to
delete it. I should mention, to show that I have not forgotten it, that on July
6 a somewhat ambiguous letter was written by the defendant’s solicitors to the
plaintiff’s solicitors in the course of the conveyancing saying: ‘We have been
asked by our client to confirm that the items which are being left in the
kitchen area are those which are set forth on page 2 of the auction particulars
of Messrs Blade & Company.’
‘Auction’ is a word which has crept in by mistake. That, it will be
seen, is limited to the kitchen and does not deal with the bed, and of course
it has no contractual effect here because it is dated after the time the
contract was made.
Now, in
looking for pointers or indications of the truth it is sometimes useful to see
what the parties have said about matters on other occasions, and in this case
the defendant has made two statements to his solicitors in his formal defence
of the action, to which some importance may be attached. In paragraph 2 of the
defence, dealing with what was and what was not included in the sale, appear
these words: ‘A surveyor appointed by the plaintiff inspected the said premises
with a view to seeing the general state thereof and to ascertain precisely what
was to be included in the sale thereof. The said surveyor was expressly
informed what was and what was not included in the sale of the said
premises.’ Well now, the surveyor is Mr
Gibbs, and he has given evidence. He says that he had no instructions that
there
view to ascertaining precisely what was to be included in the sale, and the
defendant in evidence said that he did in fact tell Mr Gibbs what was and what
was not included. Mr Gibbs denies that. So there is a previous statement which,
if I accept Mr Gibbs, does cast some doubt upon the accuracy of the defendant’s
recollection. And there is a similar observation to be made about allegations
made in paragraph 4 of the defence about a number of these chattels. Paragraph
4(b), dealing with the freezer, states: ‘The plaintiff was expressly informed
that the said freezer was not included in the sale and was being removed from
the said kitchen prior to installation in the defendant’s new house.’ And a similar allegation appears in
sub-paragraph (c) as regards the street lamp: ‘The same was to be installed, so
the plaintiff was informed by the defendant, upon the defendant’s new
premises.’ A similar observation is made
in sub-paragraph (i) about the garage door gear: ‘. . . stored in the garage of
the said premises preparatory to being installed in the defendant’s new
house.’ The washing machine: ‘As
expressly agreed between the plaintiff and the defendant in or about 1976 the
said Lavamat washing machine then installed upon the premises was to be removed
by the defendant for his own use and installation in his new house, and the
same was to be replaced by another Lavamat washing machine of lesser value,
which was duly done.’
Now the
defendant in evidence agreed that he had no new house. He was not about to move
to another house, and in fact he did not move at the end of the day into
another house; he went and stayed with friends and the furniture was put in
store. But what he says he did tell the plaintiff was that the goods were to be
taken not to a new house of him the defendant, but a new house of the
defendant’s former but divorced wife. Well, there is evidence–indeed it is not
disputed–that the defendant was living with a mistress at the house in question
during the time of the negotiations, and it is a little surprising, firstly,
that he should wish to benefit his divorced wife, who, as I say, was engaged in
litigation with him over money matters, and, secondly, that in the instructions
to his solicitors, which are reproduced in the defence, he should talk about the
new house of his ex-wife as though it were his own house. The wife’s new house,
I may say, apparently did not come to fruition either. The wife went to live
later at some other premises, where, he says, ultimately the freezer found its
way.
Another matter
to be looked at in deciding upon whom to believe is the likelihood of the
situation, and here likelihood supports the plaintiff. There can be no reason
for a plaintiff to engage in the hazards of litigation in a case like this
without some strong ground for having initiated the litigation. There is no
evidence of pre-existing enmity, or anything of that kind in the case.
I have
observed both Mr and Mrs Ware and Mr Verderber in the witness box. I have come
to the conclusion that Mr and Mrs Ware are witnesses of truth. I cannot say the
same about Mr Dronk and Mr Misculin. I have come to the conclusion that Mr
Verderber is an emotional person; one might almost go as far as to say on
occasions an hysterical person; the kind of person not unlikely to make extreme
statements and not unable to convince himself eventually of the truth of what
he has imagined in order to support that which he would like to have happened.
Having formed this view, I am supported, as I say, by the points which I have
considered, the fact that an entirely different account from that which I
accept from Mr Gibbs is given by the defendant of the visit of that surveyor
and by the words appearing in the agents’ particulars and the statement about
the new house to which the goods were said to be going. I accept the evidence
of Mr Ware and of Mrs Ware. I find as a fact that the defendant did undertake
to include in the sale the items set out in paragraph 2 of the statement of
claim, subparagraphs (1), (2), (3), (9) and (10), and also, for what it is
worth, (11), the sundry gardening equipment, although that is a very vague
piece of agreement indeed and no one could say how much these tools consisted
of. There was a suggestion of an array of handles and a lawn mower.
I go now to
the other part of the case, and the best way to approach that is to look at
paragraph 4 of the statement of claim, where the allegations are set out one by
one of the damage or removal complained of. Subparagraph (1) alleges: ‘The
spiral staircase damaged at the top and at the bottom, needing welding work
done to repair it.’ Well now, I accept
that the spiral staircase was in good condition when seen by Mr Gibbs, the
surveyor. I accept on the evidence of the plaintiff and his wife that it was in
a damaged condition when they moved into the house late on completion day. It
may well have been damaged by the removers getting the bed out, but whether it
was damaged in that way or not damaged, it was damaged during the time when the
defendant had custody of it, and the plaintiffs are entitled to the cost of
repairing it.
The second
item is: ‘Telephone smashed, with wires pulled out.’ That I accept. The defendant denied the wires
were pulled out. He said the cover had come off the telephone. There is no
special cost alleged by the plaintiff attached to this; it merely forms part of
the general damages for inconvenience which is claimed and which I shall come
to later.
No 3: ‘Waste
disposal unit and washing machine not working.’
Well now, I accept Mrs Ware’s evidence that indeed they were not in good
working order. The washing machine needed servicing, which it received. The
waste disposal unit was revolving, but with a horrible noise which led one to
switch it off at once, not surprisingly, because when it was serviced it was found
to contain pieces of rock and coins which had got there and which of course no
ordinary person would put in a waste disposer. There had been builders in the
house and the defendant’s account is that they must be responsible. Well, he is
responsible for looking after the apparatus and I find that he was in breach of
his duty to take care of goods which he had undertaken to sell as part of the
contract.
No 4 is: ‘Part
of porch door bolt missing and hinges gone from door.’ There is some dispute about the hinges. Mr
Gibbs said that the hinges on this cottage-type property were the ordinary door
jamb hinges in most cases, but had had black plastic simulated hinges stuck on
to the exterior of the door and of the door surround in order to give the
impression of an old-fashioned wrought-iron hinge, and he said these were of
small value, and the defendant agreed with him and said that he had taken them
off–this is part of the defendant’s somewhat colourful imagination, in my
view–to improve the property for the benefit of Mr and Mrs Ware. Well, it is a
small matter. If they were stuck on for embellishment then they are not
fixtures and the defendant was entitled to take them off. If they were the
proper hinges of the door they are part of the realty and the defendant was not
entitled to take them off. In one or two cases I accept that he did in fact
remove metal hinges. There were certain H-type hinges of an ornamental nature
which, accepting Mrs Ware’s evidence, had been removed, because one could see
not only the outline of where they had been on the door but also the screw
holes where they had been screwed to the door. The evidence as to how many or
what value is vague, but I accept that there is some case established as
regards those hinges.
No 5: ‘Iron
door-pull on back door missing, having been disconnected from the chimes, and
two hinges missing from an outside door. Lock also missing.’ I heard nothing that I can recollect about
the lock. The hinges I have dealt with. The iron door-pull figures in one of
the photographs and is clearly an important part of the attractive exterior of
this cottage-type house. The defendant says that it was never connected to any
bell, either by wires or electrically, and was merely planted on as part of the
embellishment of the house. Mrs Ware says she pulled it when she went, but she
cannot swear that any bell rang. The defendant did, however, come to the door,
but that does not prove that he came because there had been a bell ringing. He
says that he took it down because it wore out. It was not an expensive piece to
start with and people were always pulling it. As it is intended to be
pulled I do not know why he found that unusual. But they pulled it so much, he
says, that they wore it out and it became useless and he took it down. I think
this door-pull was affixed in a way which made it part of the real property and
ought to have been left.
No 6: ‘Old
porch light gone.’ There was hanging
outside the porch, and it showed in the same photograph, a light fixture in the
shape of a lantern. It looks like cast iron. Mr Verderber says it was painted
wood and he says it got damaged in a gale and he took it away. The general rule
is that light fixtures are not part of the realty, and I do not think this
light fixture was either.
No 7: ‘Four
hinges gone’–I have dealt with them–‘and window box gone from wall.’ Well, there was a window box, a wooden one.
Mr Verderber says it fell to pieces and he did not replace it. A window box of
that type is in my judgment not a fixture and not the proper subject of a claim
for its removal.
Subparagraph
(8) has been abandoned. Subparagraph (9): ‘Handle missing from interior of
French doors.’ Mr Gibbs has satisfied me
that that handle was present, because he would have recorded it as missing in
his survey had it been gone at the time when he visited it. The defendant took
it away, and in my judgment that was part of the realty which he should have
left.
Item 10:
‘Seventeen electric fittings missing from lights, leaving bare wires
exposed.’ They are not, in my judgment,
fixtures, and an outgoing vendor is entitled to remove his electric light
fittings unless he has contracted to leave them. There was no mention,
according to Mrs Ware, of the light fittings. I think she was mistaken in
expecting them to be left, as she clearly did, but there was no assertion by
the defendant that they were going to be sold as part of the purchase price,
and that part of the claim fails.
I come to
damages. The bed has been the subject throughout of considerable controversy.
The plaintiff says it was a nice bed, and one of the estate agents described
it, as I have said, as ‘extra large and nearly new.’ It was apparently in two parts, as these big
beds often are, for ease of handling. The defendant says they were two old beds
just bolted together. That is not the way it presented itself to Mrs Ware.
However, the defendant says that not only was it old, contrary to what the
agents said, but it was also stained, and he calls as a witness a Mrs
Foster-Williams, a rather unusual witness. She apparently happened to be
passing through the village. She saw the notice board. She did not know the
house. She had not got the particulars. She did not know the defendant. But she
went in. She saw the bed. She said it was used and stained. It was not
explained how this lady, who did not buy the house, came to be traced and
called as a witness. She apparently had been in touch with the defendant since
that first fortuitous visit. She said she had seen him a couple of times since.
I find her evidence adds little if anything to the case. It is common ground
that the bed was not new. If it were new it would cost between £500 and £600 to
replace by another new one. What the plaintiffs did in fact was to buy a
second-hand bed, which cost them £300 plus £20 for transport, and I think that
is the proper measure of damages and under this head I award £320.
Now the
freezer, which was wrongly taken, was specially fitted into a space which was
made out of oak and so designed as to receive this particular make of freezer,
an AEG Santo freezer. The defendant said it cost him £90. I am satisfied that
the new price now, or after the event was £140. Now if the plaintiff is to be
put in the position in which he contracted to be he has got to find an AEG
Santo freezer of that particular model and dimensions. His chances of finding a
secondhand one I should have thought were remote. I think in this case he ought
to have the new price, because it is only by getting a new one that he can get
one which fits and puts the premises into the state in which they were
contracted to be. The damages here are £140.
The lamp
standard, which was lying in the garden, is an old street lamp, apparently,
which the defendant had picked up for a song. One knows that these items are
sought after for country cottages and sometimes fetch quite a sum of money.
This particular one had not got a lantern on top. The plaintiff and his wife
said that there was a lantern which they thought was from it being used in the
house as a light, but I do not think that they proved that the defendant
undertook to sell any more than the standard without the lantern, and I am not
prepared to give more than a nominal £10 for that item.
Much the same
applies to the secondhand garage-door-lifting mechanism. It has not been
established–indeed I do not think it is now the plaintiff’s case–that there was
a door going with the mechanism. It is of doubtful value. It was not examined,
and here again I think the proper sum is £10, which I regard as a nominal sum
in the circumstances.
The defendant
undoubtedly undertook to throw in the garden tools, but in view of the vague
nature of what the tools were here again I award no more than £10.
I now come to
the washing machine. The defendant says that the machine he installed cost him
£360. The plaintiff’s evidence establishes that a new one would now cost £463.
A secondhand one would cost less, but as between a vendor and a purchaser a
plumbed-in machine is worth more than a secondhand one on the market. One knows
that if one is trying to sell a machine of this kind one does not get a great
deal for it. On the other hand, if one is going with the house one buys it is
worth a great deal more to the purchaser. I think a realistic value for this
machine, giving credit in £50 for the machine which was substituted for it, is
a net total of £350, and that is the amount I award under this head.
The spiral
staircase was mended by the plaintiff himself, who is an engineer. It involved
a welding job in his workshop. He assesses that at £15. If he had had to have
it done by contract and not by himself it would obviously have cost a great
deal more. The damages there are £15.
The repair to
the washing machine, or the servicing of the washing machine, cost £9 to Mrs
Ware, and that sum I award.
The repair to
the waste disposer again I am satisfied cost £6.75, and that is a good item of
claim.
As for the
hinges, I am left with very little evidence as to the worth of those hinges
which were actually unscrewed and taken away, and I award £20 here, doing the
best I can.
The bell pull,
which should have been replaced or preserved, the defendant says he bought for
£3.50. Mr and Mrs Ware think it was a much more expensive item, and if it were
a genuine antique it would be worth 10 times that sum or more. I am not
prepared to take as established that it was a genuine antique and for that item
I award £5.
The door
handle, which the defendant was not entitled to remove, I assess at £10.
Now I come to
the general damages. The claim alleges: ‘By reason of the matters aforesaid the
plaintiff has suffered inconvenience, loss and damage, the estimated cost of
replacing the missing items and repairing the dilapidations being £1,500.’ Well, that £1,500 is special damage and is represented
by the items which I have listed. But undoubtedly the plaintiff and his wife
have suffered inconvenience and loss other than represented by the individual
items. They however gave no evidence of any particular inconvenience and
particular loss beyond the passage which I quoted at the outset of Mrs Ware’s
evidence and from Mr Ware’s statement that the premises were in a disgusting
condition when they went in, and they obviously were inconvenienced by the
absence of the telephone for a time; I am not told for how long. Mr Wood, on
behalf of the plaintiff, limits the claim for general damages to £100. Well,
that is little more than a nominal sum. He is influenced in so doing by the
fact that there was no evidence of substantial inconvenience to put before the
court, and regarding that £100 as a nominal sum for this head of damage I award
it.
It has
occurred to me as I have been going on that I did not state, as I intended to
at the outset, that the legal basis of the first part of the claim was agreed
during the course of the trial to be not the misrepresentation which the
plaintiff’s statement of claim started off as alleging, but was, when it was
examined care-
parties collateral to and in consideration of the making of the contract of
sale, and that is the basis upon which that part of the claim was dealt with in
the amendment which I allowed and in the judgment which I have given.
The sum total
of the items which I have enumerated, including the £100 general damages, is
£1,005.75, and that is the figure for which I give judgment for the plaintiff.
The defendant
was ordered to pay the plaintiff’s costs to the date of the defendant’s legal
aid certificate. The question of costs after that date together with the
defendant’s application for an instalment order and his attendance for
examination of his books of account and relevant documents were deferred to be
dealt with at a later hearing.
