McQuaid v Lynam and Another

• Jurisdiction: Ireland
• Judgment Date: 04 October 1965
• Date: 04 October 1965
• Docket Number: (1964. No. 161 P.)
• Court: High Court

(1964. No. 161 P.)

McQuaid v. Lynam.

MICHAEL McQUAID

Plaintiff

and

EDWARD PATRICK LYNAM and JAMES JOSEPH LYNAM

Defendants.

Vendor and purchaser - Contract - Vendor unable to sell by reason of undertaking to local authority - Action for damages - Whether contract illegal - Memorandum in writing - Connecting documents - Variation in contract - Absence of memorandum of variation - Statute of Frauds (7 Wm. 3 (Ir.), c. 12), s. 2 -Housing (Amendment) Act, 1948 (No. 1 of 1948), s. 19 - Housing (Amendment) Act, 1952 (No. 16 of 1952), s. 16.

Witness Action.

The following statement of facts is taken from the judgment of Kenny J.:—

"In 1951 the defendants, Edward Patrick Lynam and James Joseph Lynam, who are building contractors, purchased the freehold interest in lands at Cabra. They developed part of the lands as a building estate and in 1953 they built the house now know as 1, Kinvara Road, Navan Road, Dublin: in November, 1954, they applied to the Dublin Corporation for a letting grant for it under s. 19 of the Housing (Amendment) Act, 1948. This application was granted and on the 30th September, 1957, they signed an undertaking to the Dublin Corporation that they would observe the conditions in that Act and in the regulations made under it in relation to the house.

The plaintiff, who lived at 10, Kinvara Park, was looking for a house in 1963 and went to see the first-named defendant in the early part of that year. Mr. Lynam told the plaintiff that there would be a house for sale in that year, that the price would be £2,800 and that the deposit would be £800. Some time after this, the plaintiff telephoned Mr. Lynam who arranged that the plaintiff would get a key of the house, no. 1, Kinvara Road, so that he could inspect it. The plaintiff then inspected the house and telephoned the defendants' office and spoke to one of the defendants. He was told that the price of the house he had inspected was £2,800. He then went to the defendants' office on the 4th September, 1963, where he met both of them, told them that he liked the house and paid a deposit of £800 on it. He was given a receipt in these terms—"Received from Mr. Michael McQuaid the sum of £800 being deposit on no. 1 Kinvara Road." The name, "E. & J. Lynam," was put on the receipt with a rubber stamp and, underneath this, the signature of the second-named defendant appears. A discussion then took place about the borrowing of the balance of the purchase money and the first-named defendant recommended the Educational Building Society to the plaintiff. The second-named defendant, who had a loan application form which had been issued by that building society, then began to fill it in as an application for a loan by the plaintiff who answered the questions which were put to him by the second-named defendant. On this occasion about one-half of the application form was filled in and, on a later date, the form, which had been retained by the second-named defendant, was completed in the same way: the plaintiff then signed the application form which is dated the 27th September, 1963. It contained a description of the property, a statement that it was freehold, that it was vacant, and that it was being purchased for £2,800 and gave E. & J. Lynam as the name of the builder. It was subsequently lodged by the plaintiff with the Building Society.

In November, 1963, the plaintiff thought that he would have a better chance of getting a loan from the Building Society if his application was for a smaller amount and on the 4th November, 1963, he went to the office of the defendants, paid them an additional £500, and got a receipt which read:—"Received from Mr. Michael McQuaid the sum of £500 re no. 1 Kinvara Road," which was signed by the second-named defendant. Before the plaintiff paid this sum he was told by one of the defendants that the property would not be sold to him as freehold but would be leased to him and that the price would be reduced by £100: the plaintiff agreed to this. In evidence the plaintiff explained that he accepted the change from freehold to leasehold because "I had no contract." He said that he could not prevent the defendants from changing the method of sale from a conveyance of the freehold to a sale by lease. On the 5th November the first-named defendant told the plaintiff that the sale of no. 1 Kinvara Road could not go on. The defendants had forgotten that the undertaking which they had given to the Corporation included no. 1 Kinvara Road and, when they were reminded of this by their solicitor on the 5th November, they realised that they could not sell the house to the plaintiff. The plaintiff subsequently purchased a bigger house for £4,100 and has now brought these proceedings. He does not now ask for an order for the specific performance of the agreement but claims damages."

The defendants, who were builders, built a house and applied to Dublin Corporation for a letting grant in respect thereof under s. 19 of the Housing (Amendment) Act, 1948, as amended by s. 16 of the Housing (Amendment) Act, 1952. By virtue of the provisions of that section they were obliged to enter into an undertaking with the local authority, the Dublin Corporation not to sell the house for fifteen years and to let the house subject to certain conditions. They gave such an undertaking to the Dublin Corporation in 1957. In September, 1963, the defendants told the plaintiff that the house was for sale for £2,800. On the 4th September, 1963, he paid a deposit of £800 and received a receipt therefor. At the same time a form of application to a building society for a loan was partly filled in and the defendants' names inserted as builders. The form was completed and the plaintiff signed it on the 27th September, 1963. On the 4th November, 1963, he paid the defendants an additional £500 by way of deposit and received a receipt therefor. Before he paid this latter sum, he was told by one of the defendants that the house would not be sold as freehold but would be leased at a price reduced by £100, and he agreed to this. On the 5th November, 1963, the defendants informed him that because of the undertaking given to the Corporation the sale of the house could not go on.

In an action by the plaintiff for damages it was

Held by Kenny J. 1, that, although the defendants could not have given good title to the house by reason of the undertaking given to the Corporation, the contract was not illegal;

2, That the application to the building society did not constitute a note or memorandum sufficient to satisfy the Statute of Frauds as it was signed by the plaintiff only;

3, That the receipt of the 4th September, 1963, and the application to the building society could be read together and, when thus read, constituted a sufficient note or memorandum;

4, That the agreement between the parties was varied by consent on the 4th November, 1963. Being a variation of an oral contract evidenced by...