QUEEN’S BENCH DIVISION

SIMPKINS v PAYS [1955] 1 WLR 975

14 June 1955

Full text

SELLERS J:

The plaintiff had been living in the defendant’s house from some time in
1950, since some six months after the defendant’s husband died. The
defendant, who gave evidence here, was a lady of some eighty-three
years of age. The plaintiff was much younger. They lived together in
harmony, the plaintiff paying a weekly sum for her board and lodging to
the defendant. I am satisfied that the plaintiff was greatly interested in
betting and in competing, where chance was an element, for some
fortuitous prize, and she had been competing for some time in newspaper
competitions, including those in the ‘News of the World’ and the ‘Sunday
Empire News’, before she went to these premises.

When she became a lodger at the defendant’s premises she found that the
defendant was competing in the ‘News of the World’ competitions, and
they seem to have joined forces.

About the beginning of May, 1954, something happened which brought

the two parties to this action to take an interest in the ‘Sunday Empire
News’. They do not give the same version as to how that came about, and
it does not matter very much, except that it may assist one in trying to see
where the truth lies. The plaintiff says that she left a copy of the ‘Sunday
Empire News’ in the living room of the house occupied by the defendant
and that the defendant took it up, took an interest in it and discussed
competing in the competition in the paper. The defendant says that it was
the plaintiff who brought the paper down and said: ‘Why don’t you
compete in this as well?’ It may be that the truth lies somewhere between
the two, but on the whole I think that the plaintiff’s version is the
preferable one, and that, when the defendant did get to know about the
paper and they were discussing it, the plaintiff may have said to her:
‘Well, why don’t you compete?’

The result of it was that each week for the next seven or eight weeks the
two parties to this action, together with the defendant’s grand-daughter,
Miss Esme Pays, sent in a coupon with forecasts on it ... On the final
week, the winning week, payment was, I think, made by the plaintiff, but
it was not a matter between them of much moment. The amount involved
was not very great, and I accept the plaintiff’s evidence that the payment
was made by each of them more or less alternately, and possibly the
defendant paid more frequently. It depended a little on who most
frequently had the stamps. There was no hard and fast rule.

... The entrance money is not a vital matter in this sort of transaction ...
The substantial matter was, on what basis were these forecasts being
made?

On each of the occasions when the plaintiff made out the coupon during
those seven or eight weeks, she ... entered in the appropriate place on the
coupon ‘Mrs Pays, 11, Trevor Street, Wrexham’, that is to say, the
defendant’s name and address, as if the coupon had been the defendant’s.
There were, in fact, three forecasts on each coupon, and I accept the
plaintiff’s evidence that ... what was said ... was: ‘We will go shares’, or
words to that effect. Whether that was said by the plaintiff or by the
defendant does not really matter. ‘Shares’ was the word used, and I do
not think anything very much more specific was said. I think that that was
the basis of the arrangement; and it may well be that the plaintiff was
right when she said in her evidence, that the defendant said: ‘You’re
lucky, May, and if we win we will go shares’.

If my conclusion that there was an arrangement to share any prize money

is not correct, the alternative position to that of these three persons
competing together as a ‘syndicate’, as counsel for the plaintiff put it,
would mean that the plaintiff, despite her propensity for having a gamble,
suddenly abandoned all her interest in the competition in the Sunday
Empire News when the defendant became interested, and handed the
competition over to the defendant. I think that that is most improbable,
and I accept the plaintiff’s evidence that she did not do that. She
combined her efforts with the defendant’s in the way which I have
indicated, and from then onwards she had shares in the result.
...
On the finding of fact that the plaintiff’s evidence is right as to what was
said about the shares, learned counsel for the defendant not unnaturally
said: ‘Even if that is so, the court cannot enforce this contract unless the
arrangement made at the time was one which was intended to give rise to
legal consequences’. It may well be there are many family associations
where some sort of rough and ready statement is made which would not,
in a proper estimate of the circumstances, establish a contract which was
contemplated to have legal consequences, but I do not so find here.

I think that in the present case there was a mutuality in the arrangement
between the parties. It was not very formal, but certainly it was, in effect,
agreed that every week the forecast should go in in the name of the
defendant, and that if there was success, no matter who won, all should
share equally. It seems to be the implication from, or the interpretation of,
what was said that this was in the nature of a very informal syndicate so
that they should all get the benefit of success.

... The fact [is] that the plaintiff and the defendant entered into an
agreement to share, and, accordingly the plaintiff was entitled to one-
third. I so find and give judgment for the amount of £250.

Full text

SELLERS J:

Happily this is an unusual type of case to come before a court of law, and
it arises out of what seems to be a popular occupation of the public -
competing in a competition in a Sunday newspaper. In this particular case
there was a contest, No 397, in the ‘Sunday Empire News’ of 27 June
1954, a competition whereby readers were invited to place, in order of
merit, eight fashions, or articles of attire. The plaintiff and the defendant,
along with the defendant’s grand-daughter, sent in a coupon with three
forecasts on it. The middle line of the second forecast chanced to be
successful, as appeared in the publication of the same newspaper on
Sunday, 4 July 1954. This coupon won the prize of £750, being
apparently the only coupon containing what was said to be the correct
forecast, and this action is brought to recover one-third of that amount,
£250.

The plaintiff had been living in the defendant’s house from some time in
1950, since some six months after the defendant’s husband died. The
defendant, who gave evidence here, was a lady of some eighty-three
years of age. The plaintiff was much younger. They lived together in
harmony, the plaintiff paying a weekly sum for her board and lodging to
the defendant. I am satisfied that the plaintiff was greatly interested in
betting and in competing, where chance was an element, for some
fortuitous prize, and she had been competing for some time in newspaper
competitions, including those in the ‘News of the World’ and the ‘Sunday
Empire News’, before she went to these premises. When she became a
lodger at the defendant’s premises she found that the defendant was
competing in the ‘News of the World’ competitions, and they seem to
have joined forces. At the same time, however, until about the beginning
of May, 1954, the plaintiff, apparently unbeknown to the defendant, was
filling up alone, week by week, a similar sort of competition in the
‘Sunday Empire News’, which she kept in her room. About the beginning
of May, 1954, something happened which brought the two parties to this
action to take an interest in the ‘Sunday Empire News’. They do not give
the same version as to how that came about, and it does not matter very
much, except that it may assist one in trying to see where the truth lies.
The plaintiff says that she left a copy of the ‘Sunday Empire News’ in the
living room of the house occupied by the defendant and that the
defendant took it up, took an interest in it and discussed competing in the
competition in the paper. The defendant says that it was the plaintiff who
brought the paper down and said: ‘Why don’t you compete in this as
well?’ It may be that the truth lies somewhere between the two, but on the
whole I think that the plaintiff’s version is the preferable one, and that,
when the defendant did get to know about the paper and they were
discussing it, the plaintiff may have said to her: ‘Well, why don’t you
compete?’

The result of it was that each week for the next seven or eight weeks the
two parties to this action, together with the defendant’s grand-daughter,
Miss Esme Pays, sent in a coupon with forecasts on it. As far as the
‘Sunday Empire News’ is concerned, I am satisfied that the method of
doing this was for the defendant to make her forecast, put it on a piece of
paper, for the grand-daughter to make hers and put it on the same piece of
paper, and then, when the plaintiff came home, perhaps rather late at
night, when the defendant was in bed, the plaintiff would pick this piece
of paper up and would fill in the coupon in her own room, putting her
own line in first, then putting the grand-daughter’s line in second, and the
defendant’s line in third, and the coupon would be dispatched on the
Monday. The evidence is a little uncertain as to who actually paid for the
necessary stamps for the postage, or for the twopence-halfpenny stamps
which had to be sent for each line forecast. On the final week, the
winning week, payment was, I think, made by the plaintiff, but it was not
a matter between them of much moment. The amount involved was not
very great, and I accept the plaintiff’s evidence that the payment was
made by each of them more or less alternately, and possibly the defendant
paid more frequently. It depended a little on who most frequently had the
stamps. There was no hard and fast rule. In regard to the winning coupon,
the defendant had asked the plaintiff to get the stamps and deduct the
amount from her weekly payment for board and lodging, but, apparently,
it was not deducted. The weekly payment was 30s, and, as I understood
the defendant, the plaintiff paid 30s that week. There may have been a
little confusion there; I do not think it matters. The entrance money is not
a vital matter in this sort of transaction. It might well be done informally,
one party paying one time, the other party paying another time. It might
be the case that, in fact, all the stamps were bought and paid for by the
defendant. The substantial matter was, on what basis were these forecasts
being made?

On each of the occasions when the plaintiff made out the coupon during
those seven or eight weeks, she put down the forecasts in the way which I
have indicated, and entered in the appropriate place on the coupon ‘Mrs
Pays, 11, Trevor Street, Wrexham’, that is to say, the defendant’s name
and address, as if the coupon had been the defendant’s. There were, in
fact, three forecasts on each coupon, and I accept the plaintiff’s evidence
that, when the matter first came to be considered, what was said, when
they were going to do it in that way, was: ‘We will go shares’, or words
to that effect. Whether that was said by the plaintiff or by the defendant
does not really matter. ‘Shares’ was the word used, and I do not think
anything very much more specific was said. I think that that was the basis
of the arrangement; and it may well be that the plaintiff was right when
she said in her evidence, that the defendant said: ‘You’re lucky, May, and
if we win we will go shares’.

If my conclusion that there was an arrangement to share any prize money

is not correct, the alternative position to that of these three persons
competing together as a ‘syndicate’, as counsel for the plaintiff put it,
would mean that the plaintiff, despite her propensity for having a gamble,
suddenly abandoned all her interest in the competition in the ‘Sunday
Empire News’ when the defendant became interested, and handed the
competition over to the defendant. I think that that is most improbable,
and I accept the plaintiff’s evidence that she did not do that. She
combined her efforts with the defendant’s in the way which I have
indicated, and from then onwards she had shares in the result. In a family
circle - and this household had some element of a family circle about it
although there was no relationship between the plaintiff and the
defendant and her grand-daughter - or even among very close friends, the
facts might indicate that, if anyone rendered a service to an old lady in
filling up her coupon, that person also intended to render a service by
making some forecasts, and, in such a case, all that the other person was
doing was to help the old lady to make her forecasts, and to give her the
benefit of the other person’s skill or capacity to guess, whichever it is, so
that the venture would be entirely that of the person in whose name the
coupon was sent. On the facts of this case, and on the probabilities as I
see them, I do not think that that was what happened here, and I prefer the
plaintiff’s evidence to that given on behalf of the defendant as to how the
arrangement came into being, and how it was carried out.

[His Lordship reviewed the evidence, and continued:] Although the

coupon sent in the defendant’s name was successful, the competition was
not, in fact, won by the forecast of either the plaintiff or the defendant,
because the middle line was composed, not by either of the parties, but by
the defendant’s grand-daughter. The defendant’s case involves that,
whichever forecast won - whether it was the plaintiff’s or the defendant’s,
or the grand-daughter’s - the whole prize was to go to the defendant. I
think that that is highly improbable.

On the finding of fact that the plaintiff’s evidence is right as to what was
said about the shares, learned counsel for the defendant not unnaturally
said: ‘Even if that is so, the court cannot enforce this contract unless the
arrangement made at the time was one which was intended to give rise to
legal consequences’. It may well be there are many family associations
where some sort of rough and ready statement is made which would not,
in a proper estimate of the circumstances, establish a contract which was
contemplated to have legal consequences, but I do not so find here. I
think that in the present case there was a mutuality in the arrangement
between the parties. It was not very formal, but certainly it was, in effect,
agreed that every week the forecast should go in in the name of the
defendant, and that if there was success, no matter who won, all should
share equally. It seems to be the implication from, or the interpretation of,
what was said that this was in the nature of a very informal syndicate so
that they should all get the benefit of success. It would, also, be wrong, I
think, to say from what was arranged that, because the grand-daughter’s
forecast was the one which was successful of those submitted by the
defendant, the plaintiff and the defendant should receive nothing.
Although the grand-daughter was not a party before the court and I have
not had the benefit of her evidence, on this arrangement she would, in my
opinion, be as entitled to a third share as the others, because, although she
was not, apparently, present when this bargain was made, both the others
knew, at any rate soon after the outset, that she was coming in. It is
possible, of course, although the plaintiff is not concerned in this, that the
grand-daughter’s effort was only to assist the defendant. The grand-
daughter may accept that, but it makes no difference to the fact that the
plaintiff and the defendant entered into an agreement to share, and,
accordingly the plaintiff was entitled to one-third. I so find and give
judgment for the amount of £250.