Clements v Conroy

• Jurisdiction: Ireland
• Judgment Date: 09 June 1911
• Date: 09 June 1911
• Court: Court of Appeal (Ireland)

Clements

and

Conroy (1).

K. B. Div.

Appeal.

CASES

DETERMINED BY

THE KING'S BENCH DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL,

AND BY

THE COURT FOR CROWN CASES RESERVED.

1911.

Vendor and purchaser — Particulars of sale, whether misleading — Sub-lease — Notice of.

The advertisement of an intended sale of a publichouse described it as in the occupation of a tenant at a yearly rent, hut did not specify the tenure by which the tenant held. An intending purchaser having seen the advertisement made an offer which was accepted, subject to conditions of sale, an agreement incorporating which she signed, and which stated explicitly that the tenant of the publichouse held under a lease which had ten years to run. There was a conflict of evidence as to whether the intending purchaser understood before signing the agreement that this lease was outstanding, and she sought to repudiate the purchase on the ground that she was misled by the advertisement into supposing that there was a yearly tenant in occupation of the publichouse. In an action by the plaintiff for the deposit, fraud was not pleaded or alleged, but the jury found in answer to questions put to them that the purchaser was misled by the advertisement, and did not understand when signing the agreement that there was the lease of the publichouse outstanding.

Held, by the King's Bench Division and the Court of Appeal, that there was no question for the jury, and that a verdict should have been directed for the plaintiff; that the advertisement was not misleading; and that applying the principle of Carroll v. Keayes (I. R. 8 Eq. 97), it was sufficient to put the purchaser on inquiry as to the tenure under which the occupier held; and that in the absence of fraud she was bound by the agreement which she signed specifying the actual tenure.

Semble, there is no conflict in principle between Carroll v. Keayes and Caballero v. Henty (L. R. 9 Ch. App. 447); but even if there were, Carroll v. Keayes must be considered an authority binding in this country.

Action to recover £125 on an account stated and settled between the plaintiff and the defendant, being the amount of an I. O. U. given by the defendant to the plaintiff, dated 19th October, 1910; and in the alternative for money due by the defendant to the plaintiff under a contract in writing, dated 19th October, 1910.

In addition to traverses the defendant pleaded, (5) that the account was stated under a mistake induced by the plaintiff and

his agents, and immediately upon discovery thereof the defendant repudiated the said account and I. O. U.; (7) there was no consideration for the agreement sued on; (8) no title was shown nor conveyance tendered; (9) this sum of £125 was the deposit on a sum of £500 offered by the defendant for the purchase of certain premises advertised for sale by the plaintiff, which offer the plaintiff alleges he accepted so as to make a valid and binding agreement for sale. The defendant says she is not bound by the alleged agreement, as the particulars contained in the advertisement were false, misleading, and inaccurate, and that she was induced to enter into said agreement, and to give the I. O. U., without any knowledge that the most valuable part of the premises for sale were sub-let upon lease for a long unexpired term, and without independent advice; (10) the defendant further says that the plaintiff, and those acting on his behalf, misrepresented the condition of the said premises; and that the plaintiff, acting in bad faith, has induced certain of the tenants of the said premises to surrender their tenancies. The defendant says that by reason of the matters aforesaid she was entitled to repudiate, and before action did repudiate, the said agreement, and any liability on foot of said account stated and I. O. U.

Counterclaim.

Repeating paragraphs (5), (9), and (10) of the defence, the defendant counterclaimed to have the said agreement set aside, and the I. O. U. delivered up to be cancelled.

The plaintiff joined issue, and also in his reply alleged that the defendant before action waived her right (if any) to deduction of title or tender of conveyance; that the particulars advertised were not false or misleading; that defendant had notice of the sub-letting of the public-house; that she had independent advice; and that there was no misrepresentation by the plaintiff, or any one acting for him, as to the condition of the premises.

The action was tried in Dublin in the Hilary Sittings, 1911, before Dodd, J., and a city common jury.

The defendant, in October, 1910, saw in a newspaper the following advertisement:—

“VALUABLE LEASEHOLD PROPERTY

“For Sale by Public Auction,

“in the

“Arcade Yard, Dublin Road, Omagh,

“On Monday, 17th October, 1911, at 2 p.m.,

“The property of David Alexander Clements, Esq., J.P.

“All that house and premises situate in Market Street, in the town of Omagh, bounded, &c. The said premises are now in the occupation of Mr. Bernard J. M'Closkey, and Messrs. M'Grath, Bros., as tenants to the said David Alexander Clements, and are held under lease, dated 14th September, 1891, from Lieut.-Col. Robert Hawkes Ellis, for the term of thirty-eight years, from the 1st November, 1891, subject to the yearly rent of £32.

“The rents payable by the tenants are as follows:—

Bernard J. M'Closkey, House and shop,	£40	0	0
„ „ Billiard-room,	14	5	0
„ „ Store,	4	0	0
	£58	5	0
M'Grath, Bros.,	10	0	0
	£68	5	0
Less head-rent,	32	0	0
Profit rent,	£36	5	0

“These premises are situate in the very best business part of the town of Omagh, and have always been in the occupation of solvent tenants, who carry on large and lucrative businesses. The portion of the premises in the occupation of B. H. M'Closkey consists of licensed premises in which a large wholesale and retail wine and spirit business is carried on, with a first-class billiard-room attached.

“The property is in an excellent state of repair and condition, and the sanitary arrangements are perfect. The sale should, therefore, command the attention of persons wanting a sound investment, as it is seldom that such a valuable block of leasehold property is offered to the public.

“Terms—A deposit of £25 per cent. on the amount of the purchase-money, together with 2¹/₂ per cent, auction fees, to be paid on the purchaser being declared, the remainder on completion of purchase, according to the conditions of sale.

“Private proposals will be received by the undersigned up to three days preceding the sale, which must be subject to the conditions of sale. Apply to

“Messrs. Dickie & Carson, Vendor's Solicitors, Omagh,

or to James Wilson, Auctioneer, &c., Omagh.”

The defendant, on the 9th October, 1910, wrote to Messrs. Dickie & Carson asking what they would take (see letter, infra, p. 511). They replied on the 12th that she must make an offer, and on the 15th she wrote them a letter of that date offering £500. They replied by the letter of the 17th October, 1910, which is given in full, infra, pp. 511–12. On the 19th October, the defendant, after having seen her own solicitor, Mr. Donnelly, visited Dickie & Carson's office, and had an interview with Mr. John F. Dickie, a member of the firm. His evidence at the trial was as follows:— “I read over the conditions of sale. When we came to paragraph 13, I read paragraph carefully. I got the leases and read them also. I read M'Closkey's lease. I showed her lease. There was a calculation made by Mr. Robb and me as to length of the lease. The lease was to terminate in 1920. It was explained to her that the billiard-room was not included in the lease; that the billiard-room was held under a yearly tenancy as well as I remember. She asked could that be dropped. I told her it could. I explained that M'Grath's take could be dropped; it was entirely a yearly tenancy. I explained condition 13 fully. I had a conversation about money. She said the money could not be got that day. I took two I. O. U.'s, one for the deposit, one for the auction fees, £12 10s.; it is payable to the auctioneer. She said she would pay both the next day. She informed me she had £300 in bank. After that she signed the conditions of sale. I signed as agent for the vendor.” The witness then stated that the following day the defendant came to his office accompanied by Mr. Davidson, Manager of the Ulster Bank, Omagh. It appeared that defendant's money was in a New York savings-bank, and could not be made available for some days. A cheque was drawn by defendant in favour of Dickie & Carson for £137 10s. It was arranged that completion of sale was to stand over until the money came from America, of which Mr. Davidson was to notify witness. On the first November, Mr. Davidson called on witness with defendant and told witness she had stopped the cheque. She informed witness that she did not intend to go on with the sale—that she had seen M'Closkey, who said she had given too much—that he had a claim for £600 for improvements—that he was going to give up the billiards, and that the M'Graths were going to give up their premises. The evidence of this witness was corroborated by Mr. Robb, and was believed and acted upon both in the Divisional Court and Court of Appeal. Subject to the qualifications which she afterwards made, the defendant admitted that the conditions of sale were read to her by Mr. Dickie, and that she signed the agreement; but said that she did not understand that M'Closkey had a lease with ten years to run. She denied that at the interview of the 19th October the lease was sent for or brought down. She did not know of it till the 1st November. She said that condition No. 13 was not read to her. She thought M'Closkey was tenant from year to year. As to the interview of the 1st November, her evidence was substantially the same as that of Mr. Dickie.

The material conditions of sale were as...