Carbin v Somerville

• Jurisdiction: Ireland
• Judgment Date: 09 June 1933
• Date: 09 June 1933
• Docket Number: (1930. No. P. 530.)
• Court: Supreme Court (Irish Free State)

[S. C., I.F.S.],

Carbin

and

Somerville

Rescission - Fraudulent misrepresentation - House represented to be dry and free from damp - Breach of warranty - Failure of consideration - Delay -"Restitutio in integrum" - Appeal from Judge sitting without a jury in the Court of first instance - Practice of appellate Court in dealing with Judge's findings of fact.

Plaintiff brought an action claiming rescission of a contract for the purchase of a house on the ground that she was induced to enter into it by the fraudulent misrepresentation of the defendant as to its condition, viz., that the house was dry and free from damp and that the roof was in good condition. She also claimed a return of the purchase money with interest thereon and damages for misrepresentation; in the alternative, she claimed damages for breach of warranty of the condition of the house. Meredith, J., who tried the action, found that the defendant was asked if the house was dry and free from damp and if the roof was all right, and that the defendant stated in reply to each of these questions that it was. Meredith, J., further found that each of these statements was not in fact justified; and that the plaintiff entered into the contract upon the truth of these statements, but he refused to grant the plaintiff the relief claimed on the ground that she had failed to prove actual fraud on the part of the defendant. Held, by the Supreme Court, reversing Meredith, J., that the plaintiff was entitled to rescission of the contract and the return of her purchase money on the ground that the contract was induced by the fraudulent misrepresentation of the defendant as to the condition of the house, and it was unnecessary to decide whether the plaintiff could recover damages for breach of warranty; the Supreme Court being of opinion that the principle laid down by the former Court of Appeal in The S.S. "Gairloch," [1899] 2 I. R. 1, and repeatedly...