McGillycuddy v Joy and Another

• Jurisdiction: Ireland
• Judgment Date: 04 March 1959
• Date: 04 March 1959
• Docket Number: (1958. No. 55 P.)
• Court: High Court

(1958. No. 55 P.)

McGillycuddy v. Joy and Another.

THE McGILLYCUDDY OF THE REEKS

Plaintiff

and

DAVID JOY and WILLIAM JOY

Defendants.

Statute of Frauds - Enforceability of contract - Purchase of lands - Purchaser alleged to be trustee for third party - Agreement between purchaser and third party enforceable notwithstanding absence of sufficient memorandum - Whether uncertainty as to terms of contract - Statute of Frauds (7 Wm. 3,c. 12, (Ir.)), ss. 2 and 4.

Witness Action.

The facts, which have been summarised in the headnote, are fully set out in the judgment of Budd J., post.

The plaintiff instituted these proceedings for the purpose of obtaining a declaration that under and by virtue of an agreement made between him and the defendants, the defendant, David Joy, having entered into a contract for the purchase of the farm, known as "Breen's farm,"situate at Gortnackorry, in the County of Kerry, held the benefit of the contract as to that portion of the said lands known as "The Inches" with the fishing rights attaching thereto in trust for the plaintiff, and for a further declaration that the plaintiff would be entitled to receive from the defendant a lease of the fishing rights attaching to the remainder of the said farm, or to a sale thereof on terms to be agreed or in default of agreement to be ascertained by an arbitrator.

The defendants in their defence, inter alia, denied the alleged agreement, and claimed that if any such agreement were made it was not intended to create a concluded or binding contract, and was without consideration. They further denied that there was a written agreement or any note or memorandum of the alleged verbal agreement or contract sufficient to satisfy the requirements of the Statute of Frauds; and the defendant, David Joy, claimed to be entitled to retain the benefit of the contract of sale for himself.

The plaintiff in his reply pleaded that the claim by David Joy to retain the benefit of the contract for himself amounted to a fraud on his part, and that he was not entitled to rely upon the provisions of the Statute of Frauds as a defence.

In or about the month of April, 1957, the plaintiff and the defendants verbally agreed that they would join in the purchase of a farm of lands known as "Breen's Farm." It was agreed that the purchase price would be paid as to one-third by the plaintiff, and as to two-thirds by the defendants, and that the plaintiff should be entitled to have for himself that portion of "Breen's farm" known as "The Inches," together with the fishing rights in the River Laune attaching thereto, and that the defendants should be entitled to have for themselves the balance of the lands comprised in "Breen's farm," with the fishing rights thereto belonging. It was further agreed that the defendants would dispose of the fishing rights attached to their division of the said lands to the plaintiff either by way of lease or by selling the same to him on terms to be ascertained between themselves and, in default of agreement, on such terms as might be fixed by an arbitrator. This agreement was contained in a letter, signed by the plaintiff and the defendant, David Joy, and transmitted by William Joy (by hand) to the solicitor acting for the plaintiff and the defendants.

It was further agreed that the defendant, David Joy, and a solicitor nominated by both parties, would negotiate the sale, and that the contract for purchase would be signed by David Joy alone, the plaintiff agreeing not to enter into the negotiations for the purchase of the property or to make any bid or offer for the same on his own behalf. David Joy purchased"Breen's farm" for a sum of £5,000 and signed a contract for the purchase thereof on the 6th May, 1957. The plaintiff paid his one-third part of the purchase price and auctioneer's fees to the solicitor for the plaintiff and the defendants. On the 7th December, 1957, the defendant, David Joy, repudiated the contract made between the plaintiff and the defendants, and claimed to be entitled to the benefit of the contract to the exclusion of the plaintiff. The plaintiff instituted proceedings in which he claimed a declaration that the defendant, David Joy, held the benefit of the contract for the purchase of "Breen's farm" (as regards the portion thereof known as "The Inches") with the fishing rights attached thereto in trust for the plaintiff, and further that the plaintiff was entitled to receive a lease of the fishing rights attached to the remainder of "Breen's farm" or, alternatively, to purchase the same in accordance with the said agreement.

Held 1, that the parties being fully aware of the area and portion of"Breen's farm" intended to be referred to under the expression, "The Inches," there was no uncertainty as to the areas of the said farm intended to become the property of the plaintiff and the defendant respectively; and the boundaries between "The Inches" and the remainder of "Breen's farm" being ascertainable by the Court, there was no uncertainty in the contract in that regard.

2, That the agreement was not uncertain in regard to the letting or sale of the fishing rights attaching to the portion of "Breen's farm" other than"The Inches."

3, That the plaintiff's agreement to refrain from making an offer or bid or to negotiate for the purchase of "Breen's farm" on his own behalf constituted consideration for the said agreement.

4, That in entering into the said agreement the parties had intended to create legal relations between themselves.

5, That William Joy was a party to the said agreement.

6, That the defendants were bound by the contract notwithstanding that the alleged contract contained no provision as to what was to occur if the consent of the Irish Land Commission to the sub-division of "Breen's farm" was refused. Leitch v. Simpson I. R. 5 Eq. 613 and O'Regan v. White[1919] 2 I. R. 339 applied.

7, That although the letter, dated the 28th April, 1957, might not be a memorandum of the said agreement sufficient to satisfy the requirements of the Statute of Frauds, nevertheless David Joy, having purchased part of the lands as trustee for the plaintiff, his repudiation of the agreement constituted a fraud against which the Court would grant relief. Rochefoucauldv. Boustead[1897] 1 Ch. 196; Chattock v. Muller8 Ch. D. 177;and Devine v. Fields54 I. L. T. R. 101 considered and applied.

Budd J. :—

This action is concerned with the purchase of a farm known as "Breen's farm" at Gortnackorry, near Killorglin, County Kerry. On the 6th May, 1957, a contract to purchase the farm for the sum of £5,000 and auctioneer's fees was entered into by one of the defendants, David Joy. The plaintiff alleges that David Joy signed the contract in such circumstances that he purchased the farm in trust for himself, his brother and the plaintiff in certain proportions.

"Breen's farm" adjoins the plaintiff's farm lands at The Reeks, Beaufort. The River Laune runs beside the plaintiff's property, and to the north of it and then, flowing on its course, passes the land known as "Breen's farm."The boundary of "Breen's farm" would, as far as the river is concerned, be in mid-river, since the farm, itself, adjoins the river. The portion of "Breen's farm" nearest to the plaintiff's farm, up to a narrow waist in the configuration of the land, is known as "The Inches" and, together with two adjacent fields, constitutes about a third of "Breen's farm"; the rest of the property therefore comprises about two-thirds of the farm. The boundaries are set out on the map produced by the plaintiff, and, also, on a map produced by Mr. O'Sullivan for the defendants. The plaintiff's lands are edged in blue on the plaintiff's map and "Breen's farm" is edged in red. The two fields, to which I have referred, are away from the river-bank; that is to say, the fields known as "The Inches" lie between them and the river-bank; they abut into the plaintiff's farm. The defendants live nearby. Their farm does not actually touch "Breen's farm" at any point but is not far from it. It is edged in green on the map before me and lies in the townland of Ardragh. The defendants' home is Ardragh House, situated on their land.

For some years—in fact, probably, at least as far back as 1922—the plaintiff, or his predecessor in title, had the fishing rights appurtenant to "Breen's farm" under lease. The River Laune is a well-known salmon and trout river with two good pools, where the salmon lie, on the stretch of the river beside "Breen's farm." The first is the"Wood Pool," which is opposite to "The Inches" and the second pool is known as "Breen's stream," or the "Rock Pool," and it is opposite the northern part of "Breen's farm," which lies above the narrow waist on the farm I have already referred to.

On the 6th April, 1957, there appeared an advertisement in The Kerryman offering "Breen's farm" for sale and announcing that an auction would take place. Although the plaintiff was in England at the time, he saw the advertisement. He and his predecessors in title, as I have said, had been interested in the fishing. He, not a fisherman himself, was interested in the fishing from the point of view, I suppose, of his guests, and he was interested in the portion of "Breen's farm" which was nearest to his, because, as he put it himself, it would round off his own property, lying, as it did, between his property and the river.

Having read the advertisement, the plaintiff decided he would very much like to procure the area of "Breen's farm" known as "The Inches," plus the two fields and together with the entire fishing. With this in mind, he wrote to his solicitor, Mr. Downing, as a result of which Mr. Downing wrote to Mr. Breen's solicitor and the auctioneer, asking whether Mr. Breen would consider selling portion of the farm; that is to say, the one-third nearest to the plaintiff and the entire of the fishing. Mr. Downing received a reply to the effect that Mr. Breen was not...