Gun v M'Carthy

• Jurisdiction: Ireland
• Judgment Date: 21 January 1884
• Date: 21 January 1884
• Court: Chancery Division (Ireland)

CHANCERY DIVISION.

Flanagan, J.

GUN

and

M'CARTHY

The Attorney-General v. SitwellENR 1 Y. & C. (Ex.) 559.

Davies v. Fitton 2 Dr. & War. 225.

Harris v. PepperellELR L. R. 5 Eq. 1.

Tamplin v. JamesELR 15 Ch. D. 215.

Webster v. CecilENR 30 Beav. 62.

Archbold v. Lord Howth I. R. I C. L. 608, 609.

Garrard v. Frankel Ibid. 445.

Harris v. PepperellELR L. R. 5 Eq. 1.

young v. HalahanELR L. R. 9 Eq. 70, 80.

Torrance v. BoltonELR L. R. 14 Eq. 124.

Harris v. PepperellELR L. R. 5 Eq. 1.

Mortimer v. Shortall 2 Dr. & W. 363.

Fowler v. Fowler 4 De G.& J. 250.

Lease — Rescission — Mistake by one party as to material term — Written agreement — Parol evidence.

304 LAW REPORTS (IRELAND). {L. R. I. After negotiations for a lease of certain premises had been for some time pending, It., who was acting in the matter on behalf of G., the intended lessor, wrote a letter to M., the intended lessee, offering a lease at a rent of £33 108. yearly, which was immediately accepted in writing by M., and a lease at that rent was afterwards prepared and executed by G. and M. G. afterwards brought an action in the County Court to have the agreement and lease rectiÂfied by inserting £53 lOs. as the yearly rent ; or, in the alternative, that the agreement and lease might be cancelled. The County Court Judge having made a decree for rectification, and the Defendant having appealed, FLANAGAN, J., was of opinion, upon the evidence, that a mutual mistake was not shown to have existed, but that the sum of £33 lOs. had been inserted by mistake in R.'s offer, and in the subsequently prepared lease, and that the offer had been accepted and the lease taken by M. with knowledge of the mistake ; and thereÂfore the Court, while holding that it was not a case for reformation of the conÂtract, directed the lease and agreement to be delivered up to be cancelled. Where it is sought to cancel a lease or executed conveyance upon equitable grounds, parol evidence is admissible, even where there has been an antecedent agreement in writing for the lease or conveyance. APPEAL by the Defendant from a decree of the County Court Judge of the County of Kerry, directing that an agreement conÂtained in a letter signed by Thomas F. dated 30th SepÂtember, 1881, and the Defendant's letter dated 1st October, 1881, be rectified by inserting therein the sum of £53 10s. as the rent to be paid for the premises, in lieu of £33 lOs. therein stated, and that the lease of the 23rd December, 1881, should be also rectified by inserting therein the same sum of £53 108.; and that the DeÂfendant should pay the costs of the suit. The evidence was extremely voluminous, and in parts most conflicting, but the facts, so far as they were practically undisputed, were as follows :-A. tenant of the Plaintiff named Mason, and afterwards his son, held certain premises in the town of Tralee, which were used as a post-office. In 1880 an arrangement was made between Mason, the son of the original tenant, a Mr. Slattery VOL. XIII.] CHANCERY DIVISION. 305 who was in occupation of adjoining premises, also as tenant to the Flanagan, J. Plaintiff, and the Plaintiff, the result of which was that in con- 1883. sideration of Mason giving up to Slattery certain portion of the Gus premises which he held, Mr. Gun executed to Mason a new lease, u P AVR.TH Y. dated the 9th September, 1880, at a rent of £46 a-year-for a term of 41 years from the 25th March, 1880. The original rent which Mason paid for the premises in that lease and those given up to Slattery was £50, so that an abatement of £4 a-year was made to him in consideration of his giving up that portion of the premises. The premises given up consisted of a kitchen and yard. On the 30th December, 1880, a lease of the adjoining premises was made to Slattery, including part of the premises already menÂtioned as being formerly in the possession of Mason. On both the new leases to Mason and to Slattery there were maps of the preÂmises as then respectively demised to them. Mason then entered into negotiations with several persons with a view to sell the interest in his lease, and amongst others with the Defendant M'Carthy ; but difficulties occurred in consequence of a non-alienation clause in the lease. At this time, 1881, Mr. Gun resided in England, a Mr. Browne being his agent in Ireland. M'Carthy was anxious to get the premises, and numerous letters were written on the subject by the Defendant and gentlemen interested on his behalf, and Mr. Browne and a person named Rahilly, who represented the landlord. Some of these were exÂtremely indistinct in their...