Gaveau et Cie v McCullough

CourtSupreme Court (Irish Free State)
Judgment Date01 January 1927
Date01 January 1927
Docket Number(1926. No. 2862—26.)

Supreme Court.

(1926. No. 2862—26.)
Gaveau et Cie v. M'Cullough
D. M'CULLOUGH, Defendant (1)

Practice - Transfer of action - Action commenced in High Court - Transfer to Circuit Court - Order for security of costs obtained by defendant.

Appeal from an order of Sullivan P., dated the 2nd July, 1926, refusing the plaintiffs' application to amend their statement of claim by claiming further interest up to the date of payment or judgment, and granting the defendant's application to transfer the action for trial before the Circuit Court of the Dublin Circuit.

The plaintiffs, pianoforte manufacturers, carrying on business at 45 & 47 Rue La Boetie, Paris, issued a writ claiming £288 19s. 7d., whereof £260 was for the price of goods sold and delivered by the plaintiffs to the defendant, or, in the alternative, for money had and received by the defendant to the use of the plaintiffs, and whereof £6 12s. 7d. was for money had and for money received by the defendant to the use of the plaintiffs, and the balance thereof, £22 7s., was for interest. The defendant, a musical instrument manufacturer, carried on business at 56 Dawson Street, Dublin. The writ was issued on the 12th March, 1926, and served on the 16th March. An appearance was entered on the 26th March, "without prejudice to a motion to transfer to the Circuit Court of Dublin." On the 30th March the defendant served notice requiring the plaintiffs to give security for costs, and on the 31st March he served notice of motion for an order for such security. In an affidavit in support of the application, he stated that some of

the goods sued for consisted of two "Upright" pianos and one"Grand" piano, of the plaintiffs' manufacture, which were originally in the stock room of the Gresham Hotel, Dublin. In January or February, 1922, the plaintiffs' agent, a Mr. Gerald Murphy, of Dublin, requested him to purchase these pianos, but as he (the defendant) considered the prices asked were unreasonably high, he declined to have anything to do with them, except on a "sale or return" basis. He ultimately sold the "Grand" piano, and paid the plaintiffs the agreed price for same, which was about £180. He then ordered another similar piano from the plaintiffs, which was duly delivered to him at his business premises in Dawson Street, Dublin. In the month of December, 1922, a land mine was exploded under the said premises, and all the contents of the premises were destroyed, including the two "Upright" pianos, which were on "sale or return,"also the new "Grand" piano delivered shortly before the explosion. He subsequently made a claim under the Damage to Property (Compensation) Act, 1923, and included therein all the stock destroyed, but he only obtained, by the decree made by the Recorder of Dublin, about three-fourths of the amount claimed. Subsequently, he paid the plaintiffs for the "Grand" piano. The agent of the plaintiffs was well aware of the destruction of the said premises and stock, and he (defendant) believed that the said agent reported the destruction to the plaintiffs. He (the...

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