[COURT OF APPEAL]

BROWN v. RAPHAEL.

Contract - Representation - Representation of opinion - Implied representation of reasonable grounds therefor - Sales particulars - Reversion on death of annuitant - Annuitant "believed to have no aggregable estate" - Statement as to material fact by well-known solicitors to induce purchase - No reasonable supporting grounds - Vendor's means of knowledge superior to purchaser's.

The sale particulars prepared for the vendor of an absolute reversion in a trust fund on the death of an annuitant contained the statement that the annuitant was "believed to have no aggregable estate." That statement of belief was made honestly by solicitors for the vendor, but they had no reasonable grounds for so believing. The purchaser, having relied on this representation, sought rescission:-

Held, that he was entitled to rescind on the ground of an innocent misrepresentation since, as (1) the statement was one obviously and vitally affecting the subject-matter being offered, and (2) the vendor was in a far stronger position - to put it at its lowest - than the purchaser to ascertain the relevant facts, there must be imported into the representation the further representation that he, being competently advised, had reasonable grounds supporting that belief.

Smith v. Land and House Property Corporation (1884) 28 Ch.D. 7 applied.

Decision of Upjohn J. affirmed.

APPEAL from Upjohn J.

The following statement of the facts is taken substantially from the judgment of Lord Evershed M.R.

Lot 11, in a sale by auction held on February 17, 1955, was described in the sale particulars as follows: "Lot 11. The absolute reversion receivable on the decease of a lady aged 69 (born December 30, 1885) to the whole of a trust fund now represented by £8,000 2½ per cent. consols, of estimated value £5,210. This sum has been set aside to pay an annuity of £200 per annum to the lady mentioned above. The trustee is the Public Trustee. Estate duty will be payable on the death of the annuitant who is believed to have no aggregable estate." By additional conditions of sale as to lot 11 it was stated first that the reversion was derived under a will dated March 13, 1916, and that the probate of the will was to constitute the root of title. The conditions continued: "2. The vendor sells as the trustee in bankruptcy of the beneficial owner. 3. The reversion is sold subject to all death and other duties which may be or become payable in respect thereof. The above information regarding

duty so payable is believed to be correct, but the vendor accepts no responsibility as to what duties will in fact become payable nor as to the amount which will become payable and no compensation shall be paid or allowed in respect of any error as to duties." Condition 4 stated where completion was to take place. Condition 5 was that the particulars of the investment were as provided by the Public Trustee Office on a particular date, and were "believed to be correct and the reversion is sold subject to such variation as may occur therein before completion of sale. The vendor accepts no responsibility for the estimated value of the investment." Condition 6 related to expenses and condition 7 to requisitions on title. Condition 8 stated that the sale was subject to a reserved price. Condition 9 provided: "These additional conditions shall prevail notwithstanding anything inconsistent with or contrary thereto in the general conditions which (in so far as they are not varied by these conditions) shall apply to the sale of this lot." There followed in heavy leaded type. "Solicitors as to lot 11 - Messrs. Oscar Mason & Co., Cliffords Inn, Fleet Street, E.C.4."

Ernest Brown entered into a contract for purchase of the reversion at the sum of £2,825, but by January, 1956, the contract had not been completed and he sought to rescind, stating that he had been misled by the representation which he said was to be found in the part of the particulars printed in italics, that is, the words "who is believed to have no aggregable estate." The vendor, the defendant, repudiated the claim and by a counterclaim sought to enforce the contract.

At the trial of the action before Upjohn J. it appeared that the statement in the particulars had been made by a managing clerk of the solicitors named in the particulars, who normally acted as a litigation clerk. He had made it without any comprehension of the meaning of the words "no aggregable estate," or of their significance to a would-be purchaser. The grounds on which the belief were expressed were inquiries addressed to the bankrupt, a Mrs. Heath, who was a half-sister of the annuitant but was not, apparently, on friendly terms with her, the bankrupt's mother and, at her suggestion, another lady, a Mrs. Gould, whose relationship with the persons concerned was not at any time made clear. In addition, a communication was addressed to the annuitant, Mrs. Ritchie, herself. None of these sources of information was productive. Mrs. Ritchie passed the letter to her brother, who told the inquirer that it was none of his business. Mrs. Gould said that she had had no direct contact with Mrs.

Ritchie for some time, but she said that Mrs. Ritchie spent some part of her time at Nice. Mrs. Heath added very little, though both she and Mrs. Gould indicated that they did not think that Mrs. Ritchie would be likely to leave very much.

Upjohn J. acquitted the defendant and his agents and representatives of dishonesty, a ground which had been emphasized in the statement of claim, but he held that the plaintiff was entitled to relief on the basis of an innocent material misrepresentation on which he had acted.

The defendant appealed.

I. J. Lindner Q.C. and T. Michael Eastham for the defendant. The statement that the vendor believed that the annuitant had no aggregable estate was a statement of opinion which was made, as the judge found, honestly. It was not made in circumstances such as those envisaged by Bowen L.J. in Smith v. Land and House Property Corporation,¹ where the vendor had knowledge not available to the purchaser, and the character of the statement carried with it an implication that it was founded on reasonable grounds. [Reference was also made to Bisset v. Wilkinson.²] The court will not, it is submitted, readily come to the conclusion that an opinion of belief carries with it such an implication, and will only do so where there is inequality of opportunity between the vendor and purchaser in having access to vital information. It is easier to prove inequality in a case where the vendor is selling property of which he is the beneficial owner than in the present type of case where the defendant is selling as a trustee. In this case he was expressing an opinion on matters which were not necessarily any more within his knowledge than that of the purchaser.

The plaintiff should not be allowed to take the point that the expression of opinion carried with it any such implication. It was not taken before Upjohn J. and is not mentioned in the notice of appeal. Nor should the plaintiff be allowed to amend the pleadings at this stage.

[ Montgomery White Q.C. for the plaintiff, intervening, submitted that the point was sufficiently pleaded, and referred to Nocton v. Lord Ashburton,³ Swinfen v. Lord Chelmsford⁴ and London Chartered Bank of Australia v. Lempri�re.⁵]

1 (1884) 28 Ch.D. 7, 15.

2 [1927] A.C. 177; 42 T.L.R. 727.

3 [1914] A.C. 932; 30 T.L.R. 602.

4 (1860) 5 H. & N. 890.

5 (1873) L.R. 4 P.C. 572.

[The court, after discussion, held that the point was open on the appeal and that no amendment of the pleadings was required.]

Lindner. There is always a great element of chance in purchasing a reversionary interest. What was being sold was the reversion, not the annuity itself, and the defendant vendor was in no better position than the purchaser to know the means of Mrs. Ritchie, the annuitant. [Reference was also made to The Moorcock.⁶]

The issue was whether the defendant honestly believed what he said. The judge has acquitted him of fraud and, however stupid the statement of opinion may have been in this case, he is entitled to say that the matter was dealt with entirely in the office of the solicitor and he was entitled to rely on his lawyer and to assume that proper inquiries had been made. [Reference was made to Derry v. Peek.⁷]

[ORMEROD L.J. The name of reputable solicitors was stated on the auction particulars and there was an inevitable inference that the trustee had been advised by competent solicitors and on that advice had reached a conclusion in his own mind that there was no aggregable estate. When the representation was made the purchaser had no means of finding out about the means of Mrs. Ritchie at all.]

The circumstances of the annuitant were not facts peculiarly within the knowledge of the defendant. But the plaintiff has to go further than that to come within Bowen L.J.'s statement.⁸ He has to show that the vendor knew facts which falsified his statement of opinion and that those facts were peculiarly within his knowledge. The judge has acquitted the defendant of fraud here and the plaintiff has not shown that the defendant had no grounds for the statement which the judge found he honestly believed. He has not even shown that in fact the annuitant has or will have aggregable estate. Indeed, the fact that she is living in Nice may be said to point in the other direction, for she may be domiciled outside the United Kingdom. The solicitor's clerk had formed his opinion on grounds which to the court may not appear conclusive, but the best he could do was to get some information as to the financial circumstances of the annuitant. He could not compel her to disclose anything.

6 (1889) 14 P.D. 64; 5 T.L.R. 316.

7 (1889) 14 App.Cas. 337; 5 T.L.R. 625.

8 28 Ch.D. 7, 15.

[LORD EVERSHED M.R. The question is whether he was justified in making this representation.]

He knew nothing contrary to his representation and it is submitted that what he said was reasonable in the circumstances. If the grounds which he had were not reasonable, the court would have to consider what would be reasonable grounds. It is not easy to decide what is and what is not aggregable estate. But even if the grounds were not reasonable, the trustee defendant was entitled to rely on the statement as affording him reasonable grounds.

It is admitted that this was a statement inducing a contract and that the words had importance in relation to the value of the interest, but by the additional conditions of sale No. 3 the vendor is expressly exonerated from liability for death duties and other duties payable and did not accept any responsibility to make compensation for any error.

[LORD EVERSHED M.R. That condition is directed to an entirely different matter, namely, after-acquired estate.]

[ORMEROD L.J. If the plaintiff is entitled to rescind the contract, it does not matter what the conditions are. They would fall to the ground with the rest of the contract.]

It would be strange to grant rescission of the contract for an innocent misrepresentation when, if the contract had been upheld, there could have been no liability for duty at all. This misrepresentation, if there were one, went to the value of the thing sold and not to the nature of the thing itself.

Montgomery White Q.C. and E. I. Goulding for the plaintiff were not called on.

LORD EVERSHED M.R. The present action and appeal arise out of a sale at auction on February 17, 1955, of a certain property, an absolute reversion in a trust fund. Because I think much in the case depends upon the exact nature of the subject-matter of the sale as stated in the particulars, I shall take time to read what was described as "Lot 11" more or less fully.

[His Lordship read the particulars set out above, and having stated the facts, continued:] At an early stage in this appeal the question arose whether, on the pleadings, if fraud was rejected, it remained open to the plaintiff to proceed on the ground of innocent misrepresentation; and we came to the conclusion that he was so entitled. No question now arises as to dishonesty, so that we must now consider the case on the footing that

it is open to the plaintiff to proceed on the basis of innocent misrepresentation.

In order that he may succeed on such a ground it is, of course, necessary that three things should be established. He must, first, show that the language relied upon does import or contain a representation of some material fact. Second, he must show that the representation is untrue, and, third, he must show that the plaintiff in entering into the contract was induced so to do in reliance upon it. The judge concluded all those three matters in the plaintiff's favour, and he therefore gave to the plaintiff the necessary relief in the action and dismissed the counterclaim.

I will say at once that, although Mr. Lindner has put all the points forcibly and attractively before us, in my judgment there is no ground shown for this court to disturb the judge's conclusions. I will, therefore, deal, though I hope at not too great length, with each of the three essential points in turn.

The first is, to my mind, the most significant and perhaps the most difficult: is there here a representation of a material fact? The essential words are those which I have already read more than once - "who" - that is the annuitant - "is believed to have no aggregable estate." At first sight, therefore, this is a statement of an opinion; but, of course, a statement of opinion is always to this extent a statement of fact, that it is an assertion that the vendor does in fact hold the opinion which he states. But, if that was all there was in the matter, plainly the defendant would succeed on the judge's finding; for the judge has held that there was here no dishonesty on the part of the defendant or his agent; in other words, he has held that the defendant through his agent did believe that the annuitant had no aggregable estate. The question therefore arises: is that all that these few words import?

Upon that there is some considerable guidance for the court in Smith v. Land and House Property Corporation,¹ a decision of the Court of Appeal. The contract in that case was one for the sale of an hotel at Walton-on-the-Naze, which at that time, according to what is said in the report, was apparently regarded as being in the last stages of decay. The question which arose there emerged from a reference in the particulars to the effect that the tenant of the hotel was regarded by the vendor as a most desirable tenant. It turned out in fact that those words were singularly inappropriate to him, since he was one who was

1 (1884) 28 Ch.D. 7.

habitually in arrear with his rent, and the business he was able to do in the decaying town was regarded as quite inadequate to support that or indeed any rent for the hotel. Those are matters of fact, however, peculiar to Smith's case.¹ For present purposes the guidance I seek to get is to be found in the language of Bowen L.J., who said²: "In considering whether there was a misrepresentation, I will first deal with the argument that the particulars only contain a statement of opinion about the tenant. It is material to observe that it is often fallaciously assumed that a statement of opinion cannot involve the statement of a fact. In a case where the facts are equally well known to both parties, what one of them says to the other is frequently nothing but an expression of opinion. The statement of such opinion is in a sense a statement of a fact, about the condition of the man's own mind, but only of an irrelevant fact, for it is of no consequence what the opinion is. But if the facts are not equally known to both sides, then a statement of opinion by the one who knows the facts best involves very often a statement of a material fact, for he impliedly states that he knows facts which justify his opinion." It is that last sentence which is particularly pregnant for present purposes.

I observe two things; first that the Lord Justice is not laying down a universal rule. His language is: "a statement of opinion ... involves very often a statement of a material fact." Second, he observes that for that possibility to arise one party must know the facts better than the other. Observe that he is not saying that one party must know all the facts; it suffices for the application of the principle if it appears that between the two parties one is better equipped with information or the means of information than the other.

It is very often said, and truly said, that each case must depend upon its own facts; and I apprehend that the real question for the court is to say, on the basis of the facts and the context of this case, whether this is an instance in which the representation that the vendor has reasonable grounds for his belief ought to be imported. Mr. Lindner argued that to hold, as the judge did, affirmatively on that point was to lay down the principle that wherever it is stated that one party entertains a particular belief then it must follow that there is a representation that he has grounds reasonably supporting his belief. But I lay down no such general proposition. The question here is whether in this case and in the context of these particulars concerning

1 28 Ch.D. 7.

2 Ibid. 15.

lot 11 such a representation of reasonable grounds to support the belief ought to emerge; and, as the judge held, I think that in this case the answer is in the affirmative.

First, it is to be noted that the subject-matter of the sale was a reversion to a sum of consols under a will. Anybody seeking to buy such a property must obviously first consider when the subject-matter is likely to come to hand. The age, therefore, of the annuitant on the determination of whose life the reversion falls in is of vital importance. But I should have thought it of no less importance that the purchaser wants to know how much will be left of the capital fund when duties have been paid at the death of the annuitant. Therefore it is of the utmost importance to a purchaser to know (if he can find out, which he may or may not be able to do) whether the impost of estate duty will be limited to the appropriate rate for the sum of the reversion alone or whether the rate will be affected by the circumstance that the annuitant has other considerable means, disposable capital of his or her own, which for duty purposes will be aggregated with the amount passing, namely, the sum providing the annuity. Therefore the statement "who is believed to have no aggregable estate" is one obviously and vitally affecting the subject-matter being offered. As the judge pointed out, anybody who has any experience in dealing with properties of this kind must be very much alive to that point.

The next thing to notice, I think, about the particulars is the item at the end: "Solicitors as to lot 11 - Messrs. Oscar Mason & Co." - a well-known firm of solicitors of standing and repute.

What would be the effect of this language upon the mind of a possible purchaser? Clearly, I should have thought, it would flow from the language used and would be intended to be understood by a reader of the particulars that persons who knew the significance of this matter and who were experienced and competent to look into it were expressing a belief founded upon substantial and reasonable grounds. As between the vendor and the prospective purchaser it is quite plain that this is a case within the category stated by Bowen L.J., namely, a case where the vendor's knowledge or means of knowledge is far superior to that of the purchaser. The purchaser can know nothing whatever which could guide him on this point. He does not know the lady's name and he knows nothing about the will except its date. He has, when he reads this, no possible means of knowing whether the annuitant is a woman of means or is not a woman of means. It is, no doubt, possible that a purchaser might find

out. I suppose he might communicate with the Public Trustee, just as in Smith's case³ the purchaser might have made inquiries about the desirability of the tenant; but in this case it is far less likely even than in Smith's case³ that, if a purchaser had the time and opportunity of inquiring, he could have found the answer. The Public Trustee would probably have been unable to tell him anything. It is very doubtful whether the will in question could have been successfully identified. On the other hand, by virtue of the bankruptcy, the vendor is the beneficial owner of the reversion. He, therefore, has available to him a considerable amount of fact quite unknown to the purchaser; and available to him obviously also would be means of information and of inquiry. He could inquire of the annuitant or of other persons about the circumstances relevant to this matter of aggregable estate. I observe that this was a sale subject to a reserve price. A purchaser would note that and would obviously assume that the reserve price would have been fixed with due regard to this matter of aggregability.

I am, therefore, entirely of the same opinion as was the judge, that this is a case in which the representation was not merely confined to the fact that the vendor entertained the belief but also, inescapably, there goes with it the further representation that he, being competently advised, had reasonable grounds for supporting that belief.

The judge put the matter thus in his judgment. He first of all observed that, if the purchaser is not entitled to suppose that the vendor is in possession of facts enabling him to express an opinion which is based upon reasonable grounds that would, he thought (and I agree with him) make business dealings, certainly in this class of business, almost impossible. "It must be remembered," he said, "that in this case the purchaser going to the auction had no means whatever of finding out anything about the annuitant's means. When the contract was signed, the purchaser did not even know the name of the annuitant. On the other hand the vendor must be expected to be in possession of facts unavailable to the purchaser and the purchaser is entitled to suppose that he is in possession of facts which enable him to express an opinion which is based upon reasonable grounds. As I have already said, if that is not so, business relationships become quite impossible. It may be different where the facts upon which the opinion is expressed are equally available to both parties. Then the opinion may

3 28 Ch.D. 7.

be no more than an expression of opinion, but where the opinion is expressed on facts assumed to be available to the vendor, which certainly are not available to the purchaser, and that opinion is expressed to induce the contract, in my judgment the purchaser is entitled to expect that the opinion is expressed on reasonable grounds." The judge, using that general language in relation to this case, is reflecting the language of Bowen L.J., which he then proceeds to quote in the next paragraph. I am, therefore, satisfied that this relevant language does involve the representation that there were reasonable grounds for the belief, and certainly that was a representation of a most material fact.

The next question, then, is: was that representation true? Upon that, Mr. Lindner has not argued, if he will allow me to say so, with very great strenuousness, and, indeed, I think he would have had difficulty in doing so. The grounds upon which the belief was expressed were set out in summary by the judge in his judgment. [His Lordship referred to the inquiries made by the managing clerk summarized above, commenting that the information that the annuitant spent some part of her time at Nice was somewhat significant and since the amount of the annuity was £200 sterling per annum it might have been thought that that at any rate carried a certain element of caution with it. His Lordship continued:] The question then arises whether that information was such as to justify a reasonable person, who had any awareness of the significance of the matter, asserting as an inducement to a possible purchaser that the annuitant was believed to have no aggregable estate? I think the question has only to be put to be answered. It is quite plain that that very meagre information formed no basis whatever upon which a responsible person could put forward that view as an inducement for somebody to come and buy the reversion.

The inquiry was made, as one would expect, by a representative of the firm of Oscar Mason & Co., whose concern in the matter as solicitors was stated in heavy leaded type in the particulars. The judge was obviously somewhat troubled by the extraordinary fact that any responsible member of a well-established firm of solicitors could possibly have asserted a belief upon such flimsy grounds. That was a consideration which was in his mind when he had to consider on the question of costs the justification of the allegation of fraud, including that of recklessness; but the judge had the advantage of seeing the managing clerk concerned

and he was satisfied that the managing clerk, though in this respect, unhappily, quite inept, was none the less honest. He was inept because this subject-matter was far outside the ordinary scope of his professional duties, he being a litigation clerk; and it became quite manifest that he himself had no comprehension at all, when he started dealing with this matter, of the meaning of the words "aggregable estate" and certainly never comprehended at any stage the importance of the alleged belief to a would-be purchaser of a reversion.

At this stage I will consider, shortly, another point raised by Mr. Lindner. From what I have said it will be appreciated that the inquiries were made by, and indeed the whole of the preparation of these particulars was in the hands of, the firm of solicitors whose name I have mentioned. The defendant, the trustee in bankruptcy, very naturally and very properly left the matter to the solicitors to do the work for him. The draft form of particulars sent by the auctioneers was amended by the solicitors and returned to them; and the trustee in bankruptcy naturally and properly relied upon it. But Mr. Lindner put forward the argument that this question of belief and grounds of belief in a context such as this has a subjective quality about it; so that, even if it were wholly unreasonable for the solicitors concerned to have put forward a belief about there being no aggregability, it was quite otherwise in the case of the trustee in bankruptcy, who was said to be an accountant. It was said that it would suffice for the accountant, the vendor, to say: "I made no inquiries myself. I relied, as I submit I am entitled to do, on a competent firm of solicitors, and, I having so relied and they having done this draft for me, I reasonably, accepted it." I am bound to say, after hearing the argument, that I am still, for my part, quite unable to apprehend it at all. The defendant, the trustee in bankruptcy, is the vendor who asserts the belief. He did not give evidence; there was no reason why he should; but the evidence in his case proved that the belief was put forward founded upon inquiries made by the solicitors which produced results quite incapable reasonably of supporting the belief. The defendant accepted and ratified what had been done by his agents, as he was entitled to do; but he must abide by the consequences. All that they put forward he must be treated as having put forward himself.

The extravagance of the argument, if I may so describe it, is revealed by this. I put to Mr. Lindner the suggestion that if

his argument was right it would follow that if the solicitors, having made an inquiry, were then informed that the annuitant was in fact possessed of a quarter of a million pounds of her own money but, owing to some mental aberration on their part, the solicitors thought that it did not matter and was not aggregable, still, apparently, the accountant, the trustee in bankruptcy, would be able to say that he reasonably entertained the belief put forward by way of inducement merely because the solicitors asserted it. I think the proposition, so illustrated, has really only to be stated to be rejected.

There remains the third necessary condition essential to the plaintiff's case, namely, that he relied upon the representation which I hold was implicit and was untrue. Upon that, we have not really been troubled with any argument at all. The judge heard the plaintiff and was quite satisfied that the plaintiff did in fact rely upon this representation. That, therefore, is the end of the matter.

Some other subsidiary points were indicated; but, in my judgment, none of them contained any substance. It was said that the implied representation as to grounds of belief was in some sense subsidiary; from which it was sought to say that, once the belief put forward was held to be honest, however incredibly, that was the end of the matter. I can find no basis in authority or good sense for that view, and I reject it.

Another point was made on condition 3 of the conditions of sale. That condition stated, among other things, that "the vendor accepts no responsibility as to what duties will in fact become payable nor as to the amount which will become payable." It was suggested that somehow or other that so qualified the effect of the preceding representation as to make it ineffective for the purposes of this action. I am quite unable to accept that argument. I observe that condition 3, for one thing, repeats the representation, for it says: "The above information regarding duty so payable is believed to be correct." What condition 3 is concerned with is to say that, whatever be the position today, when this lady dies, which may be 10 or 15 years hence, the vendor is not himself to be responsible at all for or in respect of the payment of any duty. In other words, the condition seems to me to deal with an entirely different point and cannot, in my judgment, in the least qualify the representation which I hold was earlier made as an inducement and, in fact, relied upon by the plaintiff.

[His Lordship then considered the question of costs, a matter which does not call for report, and concluded:] For the reasons which I have given, I think the appeal fails and must be dismissed.

ROMER L.J. I entirely agree with everything my Lord has said. In the course of the passage from Upjohn J.'s judgment which the Master of the Rolls has read, the judge, after pointing out that the statement of belief in the particulars that the annuitant was believed to have no aggregable estate was made with a view to inducing the contract, expressed the view that the plaintiff as purchaser was entitled to expect that the opinion was founded on reasonable grounds. It appears to me that that is the real point in this case, namely, whether the judge was right or whether he was wrong in that view. Mr. Lindner has submitted that he was wrong, but I am abundantly satisfied that he was perfectly right. In the first place, one must remember that the plaintiff knew practically nothing whatever about the subject-matter of this sale, or the title from which it derived, or the circumstances which affected its value. All he knew about it was that which was stated in the particulars, that it was a reversionary interest then represented by a sum of £8,000 consols receivable on the death of a lady aged 69, that the reversion derived under a will dated March 13, 1916, which was proved in December, 1917, and that the trustee of that will was the Public Trustee. That really is all that he knew. Short of writing to the vendor's solicitors, who are named in the particulars, and persuading them to help him in ascertaining further particulars, I cannot see that he was in a position to do anything whatever for himself. It would be of little use even to have written to the Public Trustee, because he could not inform the Public Trustee anything about the will under which this reversion derived except its date and the date of its probate. It might be, such is the efficiency of the Public Trustee's office, that that might be sufficient, after a great deal of research, to discover who the testator was and the terms of the will and everything else; but short of that, as my Lord has pointed out, the purchaser was helpless in this matter. On the other hand, the vendor, who has to be identified for this purpose, as I think, with the bankrupt herself, the owner of the reversion, was in a far stronger position - to put it at its lowest - than was the purchaser to ascertain all relevant facts bearing upon this reversion, and more particularly

bearing upon its value and what it was likely to bring in on the death of the annuitant.

That being so, I should have thought that it was fairly obvious that the statement purporting to come, as it did come, from the vendor's solicitors, and expressing a belief vital in relation to this legal transaction, inevitably would suggest to the purchaser that the opinion was being expressed upon reasonable grounds; for it was a matter which everybody concerned, and especially a solicitor, must know would vitally affect the value of the reversion which the purchaser was proposing to buy, in that a matter which obviously affects the value of a reversion more than anything else is whether the value of it will be reduced because of the principle of aggregation when it falls in.

For my part, accordingly, even in the absence of authority, I should have thought, on the facts of this particular case, that it was abundantly clear that the judge was right when he said that the purchaser was entitled to expect that the opinion or belief was expressed upon reasonable grounds, and I should have come to that conclusion if there had been no authority on the matter at all. But, in fact, there is the authority to which the Master of the Rolls and the judge referred, namely, Smith v. Land and House Property Corporation,⁴ and in particular the judgment of Bowen L.J. which, when applied to this particular case (and we are only dealing with the facts of this particular case) supports beyond doubt the conclusion at which the judge arrived and with which I entirely agree.

None of the other points which were addressed to us and relied upon in this appeal appear, if I may respectfully say so, to have very much substance in them; and there is nothing that I can add to what Lord Evershed M.R. has said with regard to them. I entirely agree with the conclusions at which he has arrived. I agree that the appeal should be dismissed.

ORMEROD L.J. I agree that this appeal should be dismissed.

Solicitors: Oscar Mason & Co.; Charles H. Wright & Brown.

E. D.

4 28 Ch.D. 7.