Cullen v O'Meara and Another

• Jurisdiction: Ireland
• Judgment Date: 08 June 1867
• Date: 08 June 1867
• Court: Common Pleas Division (Ireland)

Com. Pleas.

CULLEN

and

O'MEARA AND ANOTHER.

Appleton v. BinksENR 5 East, 184.

Simpson v. Lord Howden 10 A, & E. 793.

Preston v. Proprietors of the Liverpool Railway Company 5 H. C. 605.

Lord Shrewsbury v. North Staffordshire Railway CompanyELR L. R. 1 Eq. 593.

Caledonian Railway Company v. Magistrates of HelensburghUNK 2 Macq. H. L. 391.

Kelner v. BaxterELR L. R. 2 C. P. 174.

Scott v. Lord EburyELR L. R. 2 C. P. 255.

Bland v. CrowleyENR 6 Ex. 552.

Capper v. Earl of Lindsay 3 H. L. 293.

Hall v. Smith 14 Ves. 426.

Pope v. Garland 4 Y. & C. 394.

Stewart v. Marquis of ConynghamUNK 1 Ir. Ch. Rep. 545.

Martin v. Cotter 3 J. & L. 496.

Darlington v. HamiltonENR 8 Kay, 550.

Flight v. BartonENR 3 My. & K. 282; Dart. V. & P. 58, 74.

Barraud v. ArcherENR 2 Sim. 433.

Lewis v. BondENR 18 Beav. 85.

Smith v. CapronENR 7 Hare, 185.

Vignoles v. BowenIR 12 Ir. Eq. 194.

Wilbraham v. LiveseyENR 18 Beav. 206.

Le Neve v. Le Neve 2 Wh. & Tud. 44, & c.

In Re Hall's CharityENR 14 Beav. 121.

Re Parke's CharityENR 12 Sim. 329.

Re Lyford's CharityUNK 16 B. 297.

In re the Suir Island Female Charity School 3 J. & L. 171.

Res Ashton CharityENR 22 Beav. 288.

Jeakes v. WhiteENR 6 Ex. 873-881.

Simmons v. HazletineENR 5 C. B. N. S. 554.

Stevens v. Austen 7 Jur. N. S. 873.

Dukes v. BlakeENR 4 Bing. N. C. 463.

Plumb v. Flint 1 Ans. 438.

Jones v. SmithENR 1 Hare, 43, 60.

Ware v. Lord Egmont 4 De G. M'N. & G. 460.

Coxv. CoventonENR 31 Beav. 378.

Spunner v. WalshIR 10 Ir. Eq. 386, 400.

Martin v. Cotter 3 J. & L. 506.

Flight v. BoothENR 1 Bing. N. C. 370.

Wilbraham v. LiveseyENR 18 Beav. 206.

Hall v. Smith 14 Ves. 426.

Darlington v. HamiltonENR Kay, 550.

Bland v. CrowleyENR 6 Ex. 522.

Kelner v. BaxterELR L. R. 2 C. P. 174.

Noble v. WardELRELR L. R. 1 Ex. 117; 2 L. R. 2 Ex. 135.

Dykes v. BlakeENR 4 Bing. N. C. 463, 477.

Governors of St. Thomas's Hospital v. Charing Cross Railway Company 30 L. J. Ch. 395.

Jeakes v. WhiteENR 6 Ex. 873.

Simmons v. HazeltineENR 5 C. B. N. S. 554.

Stevens v. Austen 3 Ell. & Ell. 685.

Boyman v. GutchENR 7 Bing. 379.

Attorney-General v. WarrenENR 2 Sw. 202.

Re Ashton CharityENR 22 Beav. 288.

In re the North Shields Old Meeting House 7 W. R. 541.

Fletcher v. TayleurENR 17 C. B. 21, 29.

Pordage v. ColeENR 1 Wms. Saund. 319, l.

Boon v. Eyre 1 H. B. 273, n.

Campbell v. Jones 6 Term R. 570.

Mattock v. Kinglake 10 A. & E. 50, 55.

Howden v. Simpson 10 A. & E. 793.

Sibthorp v. BrunelENR 3 Ex. 826.

Dicker v. JacksonENR 6 C. B. 103.

Laird v. PimENR 7 M. & W. 474.

Mattock v. Kinglake 10 A. & E. 50.

Laird v. PimENR 7 M. & W. 474.

Laird v. PimENR 7 M. & W. 474.

M'Donald v. LongbottomUNK 28 L. J. Q. B. 293.

UNK 28 L. J. Q. B. 296.

Liability of Promoters of Railway Company on Contracts expressed to be entered into on behalf of the Railway Company before its Incorporation — Measure of Damages on Breach of a Contract to pay for a Property a Sum to be ascertained by Award — Objection to Title of LEasehold on the ground of Clause of Forfeiture in Lease — Construction of Contract — Admission of Extrinsic Evidence — Jurisdiction of the Court of Chancery, under Sir S. Romilly's Act, to validate Sale of Charity Property — Construction of Order.

Corn. Pleas. CULLEN v. O'MEARA AND ANOTHER. 1867. Liability of Promoters of Railway Company on Contracts expressed to be enÂtered into on behalf of the Railway Company before its Incorporation-Measure of Damages on Breach of a Contract to pay for a Property a Sum to be ascertained by Award-Objection to Title of Leasehold on the ground of Clause of Forfeiture in Lease-Construction of Contract-Admission of ExÂtrinsic Evidence-Jurisdiction of the Court of Chancery, under Sir S. RoÂmilly's Act, to validate Sale of Charity Property-Construction of Order. • The Defendants, the promoters of the Dublin Trunk Connecting Railway ComÂpany, were passing their Bill through Parliament. The Plaintiffs, the trustees of the Catholic University, and, in that capacity, lessees of premises, part of which were required for the contemplated railway, presented a petition in opposition to the Bill, in which they described themselves as entitled to a lease of the preÂmises in question for 1000 years. An agreement was subsequently entered into between the trustees and the promoters, by which, reciting that the trustees were owners of a lease of premises which they had obtained for the purpose of building an university, and. the presentation of the petition, it was agreed that the Railway Company should purchase the interest of the lessees in the said lease, and that the value of that interest should be estimated by B, who was appointed arbitrator ; and the promoters, "on behalf of said Railway Company," agreed with the trustees to pay such sum, and in such manner or at such times as B should award, the trustees showing good title thereto ; that the Railway Company should, within six months, affix their common seal to the agreement, and that, in consideration of this agreement, the trustees agreed to withdraw their opposition. The Bill was passed, and B made his award for £4366 13s. 7d., with interest, payment to be suspended until title made out. The DefenÂdants made two objections to title : one on a covenant in the lease, of which they had no notice, to lay out £3000 in buildings within five years from May, 1862, the lease containing a clause of forfeiture on breach of the covenant thereÂin ; the other, that the Plaintiffs, being trustees for a charity, could not make good title in equity. The trustees presented a petition, under Sir S. Romilly's Act, 52 Geo. 3, c. 101, praying that they might be authorized to sell to the proÂmoters or the Railway Company. The Master of the Rolls made an order that they " might be at liberty, if they should be so advised, to sell their estate or interest." The order was expressly made without prejudice to the landlord insisting on his rights under the covenant to build, or the Railway Company refusing to perform the agreement on the ground that good title had not been made out. The Defendants not having paid the amount of the award, the Plaintiffs brought an action on the agreement against the Defendants (the promoters), alleging as breach, that the Defendants had not paid the £4366 13s. Id., with interest. COMMON LAW SERIES. 641 Held, that the promoters were personally liable, and that the affixing of Corn. Pleas. their common seal by the Railway Company did not discharge them from lia- 1867. bility. That, if the Plaintiffs were entitled to recover in the action, the measure of CULLEN ,,. damages was the full amount of the award, with interest. O'MEA.RA. Per MORRIS and ICEoGn, JJ. That the Court were at liberty to look at the petition to the House of Lords, in. which the lease was described as one for 1000 years ; and that, as the interest was defeasible under the building coveÂnant, the Plaintiffs had not made out good title. Per MONSHAN, C. J., and MEGAN, J. That the statements in the petition could not be referred to, and that the clause in the lease formed no objection to the title. Held by the whole Court, that the Court of Chancery had jurisdiction on petition, under Sir S. Romilly's Act, to sanction the sale to the Railway ComÂpany. Held by MORRIS and KEOGH, JJ., that the order of the Master of the Rolls in the present instance did not do so. Held by MONAICAN, C. J., and O'HAGAN, J that the order of the Master of the Rolls had the effect of authorizing the sale. Tills action was tried before the Lord Chief Justice of the ComÂmon Pleas, at the sittings after Michaelmas Term, 1866. It was brought by the surviving trustees of the Catholic University against the promoters of the Dublin Trunk Connecting Railway Company, on an agreement for the purchase of the interest of the Plaintiffs in certain lands in the County of Dublin, part of which lands the Company was authorized to acquire for the purposes of the Act. The first count of the Summons and Plaint averred, that by agreement between the Plaintiffs and the Most Rev. Joseph Dixon (since deceased) of the one part, and the Defendants of the other part, the said Defendants agreed with the Plaintiffs and the said Joseph Dixon, in the event of the said bill becoming law, to pay to the said Plaintiffs and said Joseph Dixon, &c., such sum, and in such manner, and at such times, as should C. Brassington award to be the value of the interest of the Plaintiffs and said. Joseph Dixon in said lands, upon the said Plaintiffs and said Joseph Dixon showing good title thereto, and that the said RailÂway Company should, within six months after such bill should. beÂcome law, affix the common seal of the said Company to the said agreement. Averment, that the said bill passed and became law that the said C. Brassington, on the 16th of January, 1865, awarded. that the said Defendants, or the said Company, should pay to the said Plaintiffs and said Joseph Dixon £4366 13s. 7d., with interest from the date of the award; but that the actual payment of the said sum and interest should be postponed until the expiration of twelve calendar months from the date of said award; and the Company alleging before him that title had not been yet made out, and the Plaintiffs and said Joseph Dixon alleging that it had been made out, he declared that the payment of said sum of £4366 13s. 7d., and the accruing of interest thereon should be suspended until the title should be made out; that since the making of the said award the said Joseph Dixon had died, and that all his right had survived to Plaintiffs ; that the twelve calendar months had elapsed, and that they had made out good title, and all things happened, &c. ; yet the Defendants did not pay the said sum of £4366 13s. 7d. FurÂther breach, that the Railway Company did not affix the common seal. There were also a count upon the award, and the common money counts. The first...