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Caveat Emptor

Caveat Emptor

By Scriptorius


Caveat Emptor

A promising outlook confronted Judge Embert Wimple. The Headingley test match was coming up and the weather reporter, deprived of the chance of a doomcast, had been forced to admit that the rain that had been threatening to wash out the game was about to stop. It seemed likely that the full five days would be available for play. To make things even better, Esmeralda had chalked up another impressive score in the painting department by selling a townscape for two hundred pounds. Her work on perspective was paying major dividends. The domestic scene was improving apace and the judge was teetering on the edge of a decision to end his long legal career. After all, with affairs on the home front so pleasant, there would be no need to scurry off to court to avoid them. It was a window of opportunity. Perhaps time to concentrate on cosmology. Could the answer to the mystery of the universe be within the grasp of the octogenarian dispenser of law?

Today’s case – Whitcombe versus Booth – seemed to be another piffling wrangle, but one never knew. And anyway, the combatants were to be represented by two rising young warriors, Arabella Bray appearing for the prosecution and Cedric Thistle for the defence. This pleased Judge Wimple, offering as it did a change from the confrontations between the veterans he had seen so often.

Taking his place, the judge was gratified to note that the litigants on both sides were well-dressed, which in his view showed due deference to the occasion. Mr and Mrs Whitcombe looked particularly smart. Embert Wimple opened his hands, addressing Bray. “Very well, Ms Bray. Please begin.”

Prosecuting counsel was momentarily nonplussed by the judge’s accuracy, but proved equal to the occasion. “Thank you, Your Honour. The case here is perfectly clear. My clients, Mr and Mrs Whitcombe, planned to move home. On the seventeenth of January they were returning from a shopping trip when they passed a bungalow belonging to the defendant. In the garden was sign with the legend ‘House for Sale. Apply Within’. The area in question is a much sought-after one, about six miles from the centre of this city. My clients stopped and decided to make enquiries. They found the defendant at home, asked to view the property and did so. They at once agreed to buy the bungalow, informing Mr Booth that they had a prospective purchaser for their own house. As a result of their visit to the property, they contacted their would-be buyer and matters proceeded as usual in such circumstances.

Seeing that the judge was beginning to nod off, Arabella Bray hastened to her critical point. “Having made their decision, my clients relaxed and allowed events to take their course. They thought nothing of the fact that the defendant had told them of his intention to take a long vacation in the Caribbean. He had left his solicitor with power of attorney to conduct his affairs. On conclusion of the formalities, my clients employed a removal company to transport their effects to their new residence.”

“No doubt eager to get on with the next phase of life,” said the judge. His irrelevant interjection had no purpose other than to remind everyone, especially himself, that he was still attentive.

“Indeed so, Your Honour. However, their euphoria evaporated when they arrived at their destination. Before setting out, they had made a telephone call to Mr Booth’s home to clarify that all was well, but did not get an answer. They therefore contacted his solicitor, who said that Mr Booth was still overseas but that he – the solicitor – would meet the Whitcombes at the property and hand over the keys. When they arrived, my clients were surprised to find that the bungalow was still fully furnished. The solicitor who had been waiting at the other end of the street –”

“Why there?” the judge broke in.

“I am coming to that, Your Honour. The solicitor saw the Whitcombes’ removal van and drove along to join them. Initially, he was as puzzled as they were but to cut a long story short it emerged that he had been waiting outside a different property because that was the one he had conveyed from Mr Booth to my clients. At his request the Whitcombes accompanied him to this second property, which he told them they had bought.”

Bray paused for a drink of water before proceeding: “No doubt Your Honour will appreciate that my clients were baffled and distressed. They had vacated their house and had a pantechnicon full of furniture and other effects. Also, their purchasers had moved into the Whitcombes’ former house the moment after my clients had moved out. Mr Booth’s solicitor suggested that the only sensible solution would be for Mr and Mrs Whitcombe to move into the second bungalow, pending clarification.”

“I am amazed,” said the judge. “You mean that Mr and Mrs Whitcombe were advised by a lawyer to move, willy-nilly, into what was probably the nearest empty property?”

“It was not entirely unconsidered, Your Honour. In addition to the bungalow in which he was living, the defendant owned the empty one, which he had inherited. The solicitor also had with him the keys to that property.”

Judge Wimple shook his head. “I usually think of myself as being abreast of social advances,” he said, “but I am beginning to believe that that I may have been bypassed by changing standards. Are you saying that your clients took possession of a property they had not bought because the one they thought they had bought was not the one defendant claimed to have sold?”

“Not quite, Your Honour. It was not as simple as that.”

The judge sighed. “I do not normally take any medication,” said, “but I feel the need coming on. How complicated was it?”

“Perhaps the position could best be described as force majeure, Your Honour. Like everyone else, my clients had to be somewhere. They merely acquiesced to the suggestion that by moving into the empty property, they would at least get refuge for the night. In fact it turned out to be for many nights. Unfortunately for them, the property they moved into was a far cry from the one they imagined they had bought. It was exactly the same in size and layout, but there the resemblance ended. The bungalow in which they found themselves was deficient in many respects. It had previously been owned by the defendant’s parents and had not been lived in for some time. It was affected by penetrating damp, rising damp, wet rot, dry rot and heavy mould growth. The roof leaked and neither the front door not the back one could be closed, from inside or outside, without the application of shoulders, knees or both.”

The judge’s eyes rolled upwards. “I don’t like to use the word ‘incredible’, but I am close to doing so,” he said. “Does this complete your presentation?”

“Yes, Your Honour. My clients are simple people and demand only what is right. They wish to take over the property they assumed they had bought, and to receive some compensation for their inconvenience.”

“Thank you, Ms Drain,” said the judge. He turned a dark stare upon Cedric Thistle. “Now, do you have an explanation for this, Mr Entwistle?”

“Yes, Your Honour,” Thistle replied, seeming less forceful than usual. “It is true that my client placed a sign in his garden, advertising a property for sale. It is also true that Mr and Mrs Whitcombe approached him in the manner described by the prosecution. However, the introductory comments are important. On entering Mr Booth’s bungalow, Mr Whitcombe said: “May we have a look around your house?” My client obliged, but at no time did he suggest that the property the Whitcombes inspected was the one he intended to sell. He was merely proud to show them his own dwelling.”

The judge ran his hands over his wig. “This becomes odder by the minute,” he groaned. “Am I right in assuming that your client had no intention of selling the property he advertised?”

Thistle produced his oiliest smile. “We are dealing with interpretation, Your Honour. My client owned both the property where the sign was displayed and the one which the plaintiffs occupied after the transaction. Mr Booth never indicated to Mr and Mrs Whitcombe that the property they inspected was the one for sale. Some confusion may have been caused by the fact that one of these bungalows – the one in which Mr Booth normally resides, and which the Whitcombes viewed, is called Rosehill, while the other is known as Rosemount.”

The judge waved a hand. “Just a moment. Were there not questions of a mortgage and a valuation?”

“Not on this occasion, Your Honour. The proceeds of the sale of the Whitcombes’ house sufficed to complete the purchase, so there was no mortgage involved. As to valuation, Mr Booth had had both properties examined shortly before the transaction. He showed the valuer’s report to Mr and Mrs Whitcombe. It seems that they were satisfied and decided that a further inspection was not necessary.”

“Obviously unwise,” said the judge. “Now, I would like to know whether the Rosehill property had been viewed by other parties before the Whitcombes inspected it. And I would caution you to consider this point carefully, as I am prepared to check it – by advertising if necessary.”

Thistle was prepared. “There had been eight earlier viewers, Your Honour.”

“I see. Now, I seem to recall that the market at the time was brisk. It seems odd that none of the previous viewers had offered to buy the property. Was there a particular reason? I must stress that this could be significant.”

This time, Thistle was obliged to conduct a spirited conversation with his client before turning back to the judge. “Your Honour, knowing that he was likely to be absent for some time and not wishing to overburden his solicitor, Mr Booth sought a buyer who did not need a mortgage. He was thinking in terms of eliminating some administrative work. It was by the same reasoning that he showed the Whitcombes the valuation he had commissioned himself.”

“Thank you, Mr Pustule,” said the judge, slapping his hands on the bench. “This is becoming incomprehensible. I think we need more input from the prosecution. Ms Swain?”

Arabella Bray bowed. “Among the papers provided, Your Honour will find a copy of the valuer’s report. It is noteworthy that at the top right-hand corner, the relevant address is given. In this case, the copy is misleading, in that there is a thumbprint over the part of the address which refers to the precise name of the property. The ‘Rose’ is clear, but what follows is not. It is our submission that that the defendant substituted the report on the superior property he occupied, Rosehill, for the one on the inferior residence, Rosemount. This was nothing more than a confidence trick. It is for this reason that my clients seek satisfaction.”

“I understand,” said the judge, “but what about the conveyance? I mean, is it not usual for a drawing to be submitted from one solicitor to the other?”

“That is true, Your Honour. However, the circumstances here are unusual in that not only did the two properties abut the same thoroughfare, Maple Drive, but they were at opposite ends of it, one being the first, the other the last. The plot outlined in red by the defendant’s solicitor – that is the one of Rosemount – was, like the size, exterior and interior of the building, identical to that of Rosehill. Everyone concerned saw that the two dwellings were at the extremes of the development, but it appears that no-one noticed the difference which seems so obvious to us now.”

The judge flopped back in his chair. “We live and learn,” he said. “Or perhaps we just live. I sometimes wonder. What you say puts me in mind of someone writing a long document. He or she may labour long and hard and make many amendments, but in carrying out a final check sees what is in the mind’s eye, rather that what is on paper. I have done it myself. However, I think I have all that is important here. Are the parties willing to accept my decision?”

There being no dissent, Judge Wimple rubbed his hands together and launched into his summing up. “This is a sorry affair. Clearly, Mr and Mrs Whitcombe were gullible in their failure to arrange a survey of the property they assumed they had bought. But gullibility is not a crime and is not even reprehensible, for if there were no miscreants, there would be no victims. Deception is a different matter. It is obvious to me that Mr Booth, having inherited Rosemount, perceived that the two properties concerned were similar as to plot, size, and appearance. By what he presumably saw as, for him, a fortunate coincidence, the two dwellings were at the ends of Maple Drive. He seems to have noted that there might be some confusion, so apparently decided that there was an opening for opportunism.”

The judge leaned back, lacing his hands across his midriff. “I know the area concerned quite well and am in no doubt that the bungalows there are, when in reasonably good condition, highly desirable. I believe that Mr Booth had both properties valued, then erected the sale sign at his home and simply waited for a prospective purchaser who did not need a mortgage and who would accept the survey report on the Rosehill property, defaced by the supposedly accidental thumbprint. He had little to lose by rejecting any offer which did not suit his purpose. This transaction was clearly a swindle. I think Mr Booth concluded that at worst, he would be faced with relatively small expense if his ruse failed, while at best, he might push the matter through to an outcome favourable to him, in that he would avoid the considerable cost of restoring the Rosemount property to good condition. In effect, he would receive the price for a dwelling in a first-class state, while disposing of one which needed extensive remedial work.”

Cedric Thistle contemplated his footwear as the judge leaned forwards to complete his remarks. “I find in favour of the plaintiffs, who have been ill-used. We shall meet again in two weeks from today, when I shall give my decision as to compensation. I hardly need say that the sum will be not be small and that the responsibility for it will devolve largely upon the defendant, though I shall also have something to say about roles of the two solicitors, who will be required to reverse some of their work at their own expense. As for Mr Booth, I think he should make arrangements for alternative accommodation. I cannot so order it, but suggest that he may wish to consider exchanging properties with Mr and Mrs Whitcombe, subject to the financial conditions I shall impose. Proceedings adjourned.”

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4 Jul, 2018
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