Kerns v Manning

JurisdictionIreland
Judgment Date02 November 1935
Date02 November 1935
Docket Number(1934. No. 202 P.)
CourtSupreme Court (Irish Free State)
Kerns v. Manning.
PATRICK KERNS
Plaintiff
and
FRANK MANNING
Defendant.
(1934. No. 202 P.)

Supreme Court.

Vendor and Purchaser - Sale of lands - Sale to be carried out by way of sub-lease - No date fixed from which the sub-lease was to run - Oral contract - Insufficiency - Written contract - Not signed by vendor = Signed by vendor's solicitor as attesting witness - Whether signature sufficient to satisfy Statute of Frauds - Memorandum in writing - Authority of solicitor to bind vendor - Specific performance.

Plaintiff claimed specific performance of an agreement, dated the 5th March, 1934, for the sale of a shop, house and premises, the said sale to be carried out by way of sub-lease. The plaintiff alleged that, prior to the said agreement, the defendant had verbally agreed to sell the premises— then in course of construction—to him. The agreement of the 5th March, 1934, was signed by the plaintiff in the office of the defendant's solicitor where the negotiations for the proposed sale were carried out, but the agreement was not signed by the defendant. The plaintiff paid a sum of £250 to the defendant's solicitor on signing the agreement. Defendant's solicitor signed his name as a witness to the signature of the plaintiff, and the solicitor's name was written on the back of the agreement and on the draft of the proposed sub-lease.

Johnston J. held on the evidence that the plaintiff had agreed upon all the essential matters with the defendant at the different interviews between them; that when the plaintiff signed the agreement on the 5th March, 1934, he signed it as a purchaser and not as a person making a proposal to purchases; that the £250 was paid by the plaintiff and accepted by the defendant as part of the purchase money; that the signing by the defendant's solicitor as witness to the plaintiff's signature and his other signatures on the documents were sufficient to bind the defendant; that the solicitor had authority so to sign; and that the requirements of the Statute of Frauds were satisfied, and he granted a decree for specific performance of the agreement.

Held by the Supreme Court, that the findings by Johnston J. on the facts would not support a concluded oral agreement, as the date from which the term in the proposed sub-lease was to run was not fixed, and this was essential; and further, that the evidence did not support a concluded oral agreement covering all the material matters necessary to make a binding contract; moreover, the evidence did not establish that the defendant had given his solicitor authority to make a concluded agreement; that, even if the evidence had established that fact, the agreement was not executed by the defendant, or by his solicitor as his agent, with the intention of making a binding contract; that the mere witnessing of a signature could not be regarded as the execution of a written agreement, and therefore there was no sufficient evidence to support the order of Johnston J. decreeing specific performance of the agreement of the 5th March, 1934.

Witness Action.

Patrick Kerns, the plaintiff, a diary proprietor and provision merchant, in his statement of claim alleged that in or about the months of February and March, 1934, there was in course of erection by the defendant, Frank Manning, a building contractor, upon his (the defendant's) building estate situate at or near Cabra Road, in the City of Dublin, a shop, house and premises known, or to be known, as No. 5 on the road off Cabra Road in the City of Dublin. And that the defendant verbally agreed with the plaintiff to sell, and the plaintiff verbally agreed with the defendant to purchase, the said shop, house and premises, upon the terms that the plaintiff would pay to the defendant a sum of £870 therefor, and that the defendant would erect and complete the said shop, house and premises, and would grant to the plaintiff an underlease of the same for the full period for which the same were held by the defendant less a nominal reversion, at the annual rent of £12 12s. clear of all taxes. And that the plaintiff should be at liberty to use the said shop, house and premises as a dairy and provision shop and to carry on therein the said business of a dairy proprietor and provision merchant. And that the plaintiff would give to the defendant a contract, or enter into an agreement with him, to erect and construct a shop front with suitable and proper fittings for the said business, at a cost or price of not less than £150, and that no other contractor would be employed by the plaintiff to erect or construct such shop front and fittings.

Plaintiff further alleged in his statement of claim that on the 5th March, 1934, pursuant to the said verbal agreement, a contract in writing was duly made and entered into by and between the plaintiff and defendant or his agent, Richard A. Burke, whereby the defendant agreed to sell and the plaintiff agreed to purchase for the said sum of £870 the said house, shop and premises (No. 5 on a plan as then initialled) recently erected by the defendant on the said road off Cabra Road upon the aforesaid terms and conditions, viz., that the plaintiff would immediately after the premises were completed contract with the defendant to erect a shop front and fittings at the cost of £150 at least and would not employ any other contractor, that the sale would be carried out by the defendant making a sub-lease of the said premises to the plaintiff for a term of two hundred and forty years from the 25th day of March, 1934, at the yearly rent of £12 12s. over all taxes—the same to be in the form of a draft annexed to the said contract and that the same should contain a clause prohibiting the plaintiff from using the premises otherwise than as such dairy and provision shop for a period of two years, and upon the making and entering into of the said contract the plaintiff paid to the defendant or his said agent, and the defendant or his said agent accepted, the sum of £250 as a deposit and in part payment of the said purchase money of £870.

The plaintiff further stated that he had always been ready and willing, and thereby agreed, to carry out the said agreement and the said contract, but that the defendant had refused and neglected to carry out same upon the alleged but wrongful grounds that the said agreement and contract were not binding upon him.

Plaintiff claimed (a) specific performance of the agreement duly made and entered into between the plaintiff and defendant upon the 5th day of March, 1934, whereby the plaintiff agreed to purchase and the defendant agreed to sell to the plaintiff the premises known as No. 5 on the road off Cabra Road in the City of Dublin for the price and upon the terms in the said agreement contained, the said sale and purchase to be carried out by way of sub-demise; (b) alternatively, damages for breach by the defendant of the said agreement; (c) in the further alternative, damages for breach of agreement, warranty and undertaking by the defendant in and relative to the sale of the said premises.

The defendant in his defence traversed the facts set out in the statement of claim and relied inter alia, upon the Statute of Frauds (7 Wm. 3, c. 12 (Ir.)) and stated that on or about the 26th February, 1934, the plaintiff called upon the defendant alleging that he, the plaintiff, was desirous of purchasing the premises mentioned in the statement of claim, whereupon the defendant referred the plaintiff to his (the defendant's) solicitor, the said Richard A. Burke, for information as to the title and the terms upon which the sale might be effected. The plaintiff on the 27th February, 1934, interviewed the said Richard A. Burke at his offices at 22 Eustace Street, Dublin, who furnished plaintiff with the required information. Defendant further alleged that at said interview, the said Richard A. Burke expressly informed the plaintiff that the defendant had already sold to one, Bridget Ward, certain premises adjoining the premises mentioned in the statement of claim for the purpose of using same as a dairy shop and that he was of opinion that defendant would not sell the said premises to plaintiff for the purpose of using same as a dairy shop. That on the 2nd March, 1934, the plaintiff called to the offices of the said Richard A. Burke and requested him to prepare a draft agreement setting out the terms upon which he, the plaintiff, proposed to purchase said premises, including the use thereof as a dairy and provision shop, and requested...

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7 cases
  • White v Spendlove
    • Ireland
    • Supreme Court
    • 26 Febrero 1942
    ...thereof by E. W. and that the claim of the said T. S. for specific performance was thereupon dismissed, following Kerns v. ManningIR, [1935] I. R. 869, on the ground that the said memorandum was not in law an agreement, an essential term having been omitted. E. W. did not proceed with her c......
  • Mulhall v Haren
    • Ireland
    • High Court
    • 1 Enero 1981
    ...this view of the law is consistent with the leading Irish authorities, i.e. Lord Cloncurry Laffan (1924) 1 1.R. 78; Kearns .v. Manning (1935) I.R. 869; Godley .v. Power ( 95 I.L.T.R. 135); and Black .v. Kavanagh ( 108 I.L.T.R.91). All of these cases emphasise that it is no part of a solicit......
  • Mateer (plaintiff) v Dublin City Council
    • Ireland
    • Circuit Court
    • 23 Enero 2006
    ... ... Brady also referred to the decisions in McQuaid v. Lynam [1965] I.R. at page 564 and Kearns v. Manning [1935] I.R. at p. 869. I have considered both of these cases. In Kearns v. Manning , it was held by the Supreme Court, inter alia, that the ... ...
  • McQuaid v Lynam and Another
    • Ireland
    • High Court
    • 4 Octubre 1965
    ...of the variation would not be necessary; but the variation was from a freehold to a leasehold sale, and, applying Kerns v. ManningIR, [1935] I.R. 869, since the duration of the lease and the rent had not been agreed there was never a valid contract for sale. Semble, that on the authority of......
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