Macklin v Graecen & Company

• Jurisdiction: Ireland
• Court: Supreme Court
• Judgment Date: 01 January 1983
• Docket Number: [S.C. No. 156 of 1980]
• Date: 01 January 1983

Macklin v. Graecen & Co.

Francis Macklin and Peter McDonald

Plaintiffs

and

Graecen and Company Limited and Others

Defendants

[S.C. No. 156 of 1980]

Supreme Court

Licensing Acts - Licence - Alienation - Publican's seven-day licence - Whether alienable apart from licensed premises - Written contract - Expressed intention of parties - Sale of licence - Extrinsic evidence inadmissible to alter terms of contract.

By a contract in writing made between the defendants and the plaintiffs, the defendants agreed "to sell the seven-day licence attached to" a certain public house to the plaintiffs for the sum of £7000. The public house had been demolished prior to the date of the said contract. The plaintiffs alleged that the defendants had failed to perform their part of the agreement and the plaintiffs claimed in the High Court the specific performance of the agreement by the defendants. At the trial of the action, the trial judge treated the contract as being, in effect, an agreement by the defendants to consent to the extinguishment of the licence but the judge held that the plaintiffs were not entitled to the relief claimed by them because the obligations of the parties to the contract were too uncertain and because the plaintiffs had not been able and willing to perform their part of the agreement at all material times. On appeal by the plaintiffs it was

Held by the Supreme Court (O'Higgins C.J., Henchy and Griffin JJ.), in disallowing the appeal, 1, that the purported sale was inoperative as the licence was inalienable apart from the structure of the premises to which it had been attached.

Brennan v. Dorney (1887) 21 L.R.Ir. 353 considered.

2. That the contract was expressed to be one of sale and that extrinsic evidence was not admissible to vary its terms.

Cases mentioned in this report:—

¹ James J. Murphy & Co. Ltd. v. Crean [1915] 1 I.R. 111.

² Whipp v. Mackey [1927] I.R. 372.

³ Application of Gorman [1971] I.R. 1.

⁴ Application of Guiney (1941) 75 I.L.T.R. 110.

⁵ Brennan v. Dorney (1887) 21 L.R.Ir. 353.

Appeal from the High Court.

On the 11th May, 1976, the plaintiffs issued a plenary summons in the High Court claiming the specific performance of an agreement in writing made on the 29th August, 1975, between the first plaintiff (in trust for the second plaintiff) and the first two defendants for the sale by those defendants to the first plaintiff of the seven-day publican's licence attached to the Royal Bar, Church Square, Monaghan. The second defendant, Robert Graecen Patton, was the licence holder and he was a director and shareholder of the defendant company. The licensed premises were demolished by a bomb explosion on the 17th May, 1974, and were then owned by the defendant company. The plaintiffs also claimed an injunction restraining the third defendant, Patrick McElvaney, from representing that he had procured the consent of the occupier of the site of the demolished premises to the extinguishment of the licence. The first two defendants had agreed to sell the licence to the third defendant, and he had applied to the Circuit Court pursuant to s. 14 of the Intoxicating Liquor Act, 1960, for a licence in respect of new premises in the immediate vicinity of the site of the demolished licensed premises.

In James J. Murphy & Co. Ltd. v. Crean¹ [1915] 1 I.R. 111. a contract purporting to treat a publican's licence as property capable of being transferred apart from the licensed premises to which it was attached was held to be unlawful, and the plaintiff company failed to persuade the Court of Appeal to treat the transaction as being an...