Dyas v Rooney

• Jurisdiction: Ireland
• Judgment Date: 05 December 1890
• Date: 05 December 1890
• Docket Number: (1889. No. 11,333.)
• Court: Chancery Division (Ireland)

Appeal.

Before LORD ASHBOURNE, C., and FITZ GIBBON and BARRY, L. JJ.

DYAS

and

ROONEY

Vendor and purchaserConditions of saleNegotiations after expiration of time for completionTime of the essence of the contractDefects in titleDifferent title with different root of title proposed to be given from that originally offered.

4 LAW REPORTS (IRELAND). [L. B.. I. Appeal. Mr. Carton's argument that sect. 97 of the Act of 1872 applies 1s90. only to property " acquired by the assignees," and that the lease In re M. hold here has not been vested in them. It is enough to say that M the only proposal here is one, not to discharge the liability, but to pay 70 a-year as rent, instead of 220. Mr. Overend alleged that if the proposal were accepted, the arranging trader would be liable for the 70, but not for the 220. But I cannot see how his liability to the 70 could have any founÂÂdation which would not equally support the landlord's claim for the full rent of 220. It seems quite plain that Judge Boyd's order was right. BARRY, L.J. :- I think the order is right. But it is startling to me that in an arrangement there is no mode of getting rid of onerous covenants. I express no opinion upon that as law ; but I think that the arranging debtor has made no case here to get rid of the liability. Solicitors for the arranging debtor: Messrs. Scalksa. Solicitor for the landlord : Mr. JPGonigk. Appeal. 1890. Dec. 4, 5. DIAS v. BOONEY(1). Vendor and purchaser-Conditions of sale-Negotiations after expiration of time for completion-Time of the essence of the contract-Defects in title-Different title with different root of title proposed to be given from that originally offered. A vendor offered for sale the lessee's interest in a farm under conditions, one of which provided that if the title were approved possession should be given on or before the 10th May, 1889, and if, through the default of the venÂÂdor, the sale was not closed by the 20th May, the agreement should be void. The lands were pasture lands, and unless possession was given to the purchaser, so that the lands could be stocked by the end of May, they would be valueless to the purchaser for the season, and the vendor was aware that immediate posses (1) Before LORD Aausonzsz, C., and Fm GIBBON and BARRY, L.U. Ver.. XXVII.] ORANCERY DIVISION. sion was required for the purpose. Negotiations were proceeding between the Appeal. parties after the 24th May for the completion of the purchase, when a deed was 1890. discovered by the purchaser on a search in the Registry of Deeds affecting the DYIS title not disclosed on the abstract of title. The vendor explained the omission V. of the deed from the abstract, and proposed to remedy the defects in the title Rooxxr. thereby caused by procuring the execution of the conveyance by a third party, and to obtain administration to certain deceased persons. This necessitated the adoption of a new root of title, further investigation, and proceedings, which would involve protracted delay in completion; and it being then the 29th May, the purchaser notified to the vendor his refusal to complete : Held (affirming the decision of the Vice-Chancellor), that although negoÂÂtiations continued after the time fixed for completion of the contract, that this did not amount to a waiver of the condition ; that, under the circumstances, time was of the essence of the contract, and that the purchaser ought not to be compelled to complete. THE facts of the case and the arguments of counsel are fully stated in the report of the case in the Court below, 25 L. R. Ir. 342. The Right lion. S. Walker, Q.C., and Mr. Miles Kehoe, for the appellant. Mr. Serjeant Jellett, Q.C., Mr. Kenny, Q.C., and Mr. R. E. Meredith, for the respondent. LORD ASHBOURNE, C. :- This is an appeal from an order of the Vice-Chancellor, dis- Dec. 5. missing with costs an action for specific performance of a contract for the sale of a farm. The facts are stated so fully in the November number of the Law Reports, that I may satisfy myself by referring to them very shortly. It was a suit for specific performance of an agreement dated the 30th April, 1889, and the controversy turns on two questions-1, Whether time was of the essence of the contract ? and. 2, Whether there was a waiver ? I am of opinion that time was of the essence of the contract. There are two dates of importance in the case expressly stated in the conditions-the first is the 10th May, and the second is the 20th May ; but, apart from the conditions, the subject-matter and the necessities of things in this case made time of the essence of the contract. The contract deals with a simple state of facts and a short and clear title, and the whole thing proceeded on the 6 LAW REPORTS (IRELAND). (L. R. L Appeal. basis of that simplicity and clearness until the discovery of certain 1890. facts which disclosed a number of blunders on the part of the DYAO vendors. I put aside all idea of suspicion or intention in the ROONEY. matter. Then the 10th May came, the first date mentioned, and the contract was not carried out. The plaintiff offered possession ; but Rooney was advised not to take possession, and in that, I think, he was quite right. Then the 20th May came and the title was not completed then, and then it would have been admittedly open to the defendant to have refused to go further. He however showed no desire to be sharp as to days, and the matter did not disclose itself sufficiently for final action for a few days. Then the deed of the 21st May, 1884, was suddenly brought to light, and it was obvious that quite a new feature had entered into the case. The moment Mr. Sterne saw and read that deed of the 21st May, 1884, he made all the points possible with regard to it by the letter of the 29th May, a date which is vital in the whole case. That letter dealt with that deed, and then proceeded :-" My client regrets to say it is now quite too late in the season to stock the lands ; it was absolutely essential that he should have been able safely to take possession at the stipulated time. This he could not do, owing to the vendor's default, and therefore he declined to proceed further with the purchase." That deed of the 21st May, 1884, made a serious change. At the commencement of the contract the lease was stated to be vested in two persons. This deed showed that that lease was a graft on an older lease, and a number of equities had consequently arisen. The proposal now practically was to take the 29th May, 1889, as a new starting-point, and go on from that-a proceeding which must lose the purchaser the season. It is no answer to say that if Rooney had accepted that proposal the plaintiff could have made out a good title. But the defendant did not do so. He said:-" I will not go on." He never elected to go on, and it is no answer that the title would have turned out to be good. The plaintiff could not make title on the 10th May or on the 20th May, and the defendant can say :-" I take my stand on the contract, and time is of the essence of the contract. This was a grazing farm, and unless possession could be obtained by a certain date for the purpose of having it properly stocked, the season would be lost." vor.. xxvn.] CHANCERY DIVISION. 7 For these reasons, I am of opinion that the decision of the Vice- Appeal. Chancellor was right, and that the appeal must be dismissed with 1890. amts. D YAS FITZ GIBBON, L. J. :- I concur. I do not quarrel with the principle stated by Mr. Walker, that where a contract has a fixed date for its completion, and that fixed date is of the essence of the original contract, if the parties pass beyond that date in negotiation, the fixed limit is gone, a reasonable time must be allowed for completion, and neither party can suddenly turn round and say :-" The day is passed, and I will have no more to do with the bargain." But that principle does not apply to the facts of this case. From the first it was plain that the purchaser wanted to get the farm in time to stock it for the season, and he stipulated that if he did not get it by the 20th May he was not to be bound to take it at all. On the 20th May the solicitors were still engaged over the searches, and the purchaser went past the fixed day without insisting on the limit. I agree that, after passing the 20th May, the vendor was entitled to a reasonable time to finish the then pending investigaÂÂtion, and I do not hold that the 20th May was any longer of the essence of the contract. But on the 29th May a new element was introduced by the disclosure of the deed of 21st May, 1884. The necessary consequence was that title had to be deduced from the lease of 1842, and not merely from the lease of 1874. The searches and investigations, for which up to the 29th May the purchaser was bound to give a reasonable time, were extended and enlarged; and it became obvious that a much longer time was required to clear the newly disclosed title than was contemplated when the 20th was allowed to pass. The purchaser was thereupon entitled to say :ÂÂ" I will not enter on any further investigation, for the season I bargained for is lost." Mr. Sterne's letter of the 29th May stated this clearly :-" My client regrets to say it is now quite too late in the season to stock the lands ; it was absolutely essential that he should have been able safely to take possession at the stipulated time. This he could not do owing to the vendor's default, and therefore he declined to proceed further with the purchase." I think the delay, or rather the prospect of an indefinite extension of the 8 LAW REPORTS (IRELAND). [L. R.I. Appeal. investigation of title, arose through the vendor's default. She had a most important deed in her possession ; she had forgotten it, and DrAs her solicitor did not know of it. That is not the way to do busiÂÂv. ROONEY. ness. Granting that a few days might have been claimed to complete the title originally shown, the purchaser was not bound for a...