Nolan v Graves and Hamilton

JurisdictionIreland
Judgment Date01 January 1947
Date01 January 1947
CourtHigh Court
Nolan v. Graves and Hamilton.
ANNIE NOLAN
Plaintiff
and
ALLEN PERCIVAL GRAVES and WILLOUGHBY HAMILTON
Defendants.

Vendor and purchaser - Sale of lands by public auction - Purchase price incorrectly stated in memorandum of contract - Purchaser executing memorandum with knowledge of mistake and with intention at the time of taking advantage of it - Purchaser refusing to complete except at the incorrect figure - Whether vendor entitled to rectification and specific performance.

Witness Action.

The plaintiff, Annie Nolan, purchased on the 20th January, 1944, from the first-named defendant, Allen Percival Graves, the premises Nos. 12, 13, 14, 18, 19 and 20 Henley Park, Churchtown, County Dublin. The sale took place by public auction conducted by the second-named defendant, Willoughby Hamilton.

In pursuance of the advertised conditions of sale a memorandum of the contract was duly executed, the purchase price was stated therein to be the sum of £4,550, and the plaintiff paid as a deposit £1,137 10s., being twenty-five per cent. of that sum; she also paid auctioneer's fees calculated at the rate of five per cent. on the sum of £4,550. Subsequently it was alleged by both defendants, but denied by the plaintiff, that the correct price was £5,550. The vendor would not complete except at the higher figure, to which the plaintiff would not agree, and after some correspondence between the respective solicitors the plaintiff ultimately requested the vendor and auctioneer to return the deposit and auctioneer's fees and, on their refusal to do so, she sued them.

The material allegations in the statement of claim were as follows:—

"4. On or about the 20th January, 1944, the second-named defendant, as agent for the first-named defendant, conducted a sale by public auction of the premises Numbers 12, 13 (otherwise 12a), 14, 18, 19 and 20 Henley Park, Churchtown, Dundrum, in the County of Dublin, the property of the first-named defendant.

5. The plaintiff attended the said auction and was the highest bidder thereat and was declared the purchaser of the said premises at the price of £4,550.

6. The terms and conditions of the purchase of the said premises are contained in a memorandum in writing dated the 20th January, 1944.

7. The plaintiff paid to the second-named defendant, as agent for and on behalf of the first-named defendant, or, alternatively, as stakeholder, the sum of £1,137 10s., being 25 per cent. of the said purchase money of £4,550, by way of deposit and in part payment of the said purchase money, and the sum of £227 10s., being auctioneer's fees, making altogether a sum of £1,365.

8. The plaintiff at all material times was and is now ready and willing to complete the purchase of the said premises and to pay to the first-named defendant the balance of the said purchase money.

9. The first-named defendant has refused and refuses to complete the sale of the said premises to the plaintiff and has repudiated the said agreement, contending that the price bid at the said auction was £5,550, and not £4,550, which the plaintiff denies.

10. The plaintiff has offered to complete the said purchase, or, alternatively, to treat the said agreement as rescinded and to accept a return of the said sum paid for deposit and fees, but the defendants have refused either to complete or to repay the said deposit and fees.

11. By reason of the premises the plaintiff has suffered loss and damage.

12. The plaintiff claims:—

(1) £50 damages for breach of agreement in writing, dated the 20th January, 1944, whereby the first-named defendant agreed with the plaintiff for the sale to her of the premises Numbers 12, 13 (otherwise 12a), 14, 18, 19 and 20 Henley Park, Churchtown, Dundrum, in the County of Dublin at the price of £4,550.

(2) The return of the sum of £1,365, being the amount of the deposit and auctioneer's fees paid by the plaintiff under the said agreement to the second-named defendant as auctioneer in connection with the sale of the said premises.

(3) Alternatively, the return of the said sum of £1,365, being moneys paid by the plaintiff to the defendants under a mistake of fact or for a consideration which failed."

The defence of the first-named defendant so far as material was as follows:—

"2. The defendant admits that the plaintiff attended the public auction referred to in the statement of claim and was the highest bidder at the said auction and was declared the purchaser of the premises referred to in the statement of claim, but denies that the plaintiff was declared the purchaser thereof at the price of £4,550. The plaintiff purchased the said premises for the sum of £5,550 and was declared the purchaser thereof at that price.

3. The memorandum in writing referred to in paragraph 6 of the statement of claim does not contain the terms or conditions of the purchase made by the plaintiff.

4. The defendant admits that the plaintiff paid to the defendant, Willoughby Hamilton, the sum of £1,365 in the statement of claim mentioned, but denies that such payment was referable to the contract alleged by the plaintiff.

5. The defendant, Willoughby Hamilton, had no authority from this defendant to sell the said premises at the price of £4,550.

6. There was no memorandum or note in writing of the contract alleged by the plaintiff as required by the Statute of Frauds.

7. The plaintiff has not suffered the alleged or any loss or damage and in the events which happened the said sum of £1,137 10s. referred to in paragraph 7 of the statement of claim is not recoverable by the plaintiff.

Counterclaim.

9. The said premises were duly put up for sale at the said auction upon terms and conditions in writing whereof the plaintiff was at all material times fully aware, including (amongst others) conditions providing that the highest bidder should be the purchaser, and that the purchaser should, immediately after the sale, pay to Messrs. Hamilton and Hamilton (meaning the defendant, Willoughby Hamilton) a deposit of 25 per cent. upon the amount of the purchase money together with 5 per cent. auctioneer's commission and should sign an agreement in the form subjoined thereto to complete the purchase according to the said conditions, and that if the purchaser should neglect or fail to comply with any of the said conditions his deposit money should be forfeited to the vendor and the commission to the auctioneer.

10. The plaintiff at the said auction was the highest bidder for, and was declared the purchaser of, the said premises at the price or sum of £5,550, and immediately after the said sale signed a memorandum in the form subjoined to the said conditions, which is the memorandum referred to in paragraph 6 of the statement of claim. In the said memorandum, as signed by the plaintiff, the sum of £4,550 was by mutual mistake, or, alternatively, to the knowledge of the plaintiff when she signed the said memorandum, erroneously inserted therein instead of the sum of £5,550. Shortly after having signed the said memorandum, this defendant by his agent called upon the plaintiff to rectify the said memorandum and to sign an agreement in accordance with the said purchase, but the plaintiff refused and has since refused to sign such agreement, and has refused to carry out the said purchase in accordance with the said contract at the price of £5,550.

11. The plaintiff was at all material times fully aware that she contracted to purchase the said premises at the price or sum of £5,550, and she signed the alleged memorandum well knowing the purchase price to be erroneously recorded therein, or, alternatively, having signed the alleged memorandum of the said sale, she wrongfully and deliberately seeks to take advantage of the errors therein by alleging a sale to her by this defendant at the price of £4,550, thereby endeavouring to deprive this defendant of the benefits of the said contract alleged in paragraph 10 hereof, whereby this defendant has suffered and continues to suffer damage and loss. This defendant counterclaims against the plaintiff:—

(1) A declaration that the plaintiff entered into a contract with this defendant to purchase the said premises at the price of £5,550 subject to the said conditions of sale.

(2) An order directing that the alleged memorandum of the said contract, dated the 20th January, 1944, and signed by the plaintiff, be rectified by the insertion therein of the figure of £5,550 in lieu of the figure of £4,550 wherever the latter figure occurs therein, by the insertion therein of the figure £5,777 10s. in lieu of the figure of £4,777 10s. and of the figure of £4,412 10s. in lieu of the figure of £3,412 10s.

(3) An order that the defendant do specifically perform the said contract at the price of £5,550 as set out in the said memorandum as rectified.

(4) An order that the said sum of £1,137 10s. is payable by the defendant, Willoughby Hamilton, to this defendant.

(7) In the alternative, an order declaring that the said deposit of £1,137 10s. is forfeited and that the same is payable by the defendant Willoughby Hamilton to this defendant."

The defence of the second-named defendant proceeded on similar lines.

In her reply the plaintiff joined issue, and also pleaded that there was no memorandum or note in writing of the contract alleged by the defendants as required by the Statute of Frauds.

At the trial of the action parol evidence, objected to on behalf of the plaintiff and admitted by the trial Judgede bene esse, was tendered by the defendants and other witnesses to show that the price at which the premises were knocked down to the plaintiff was £5,550. The plaintiff, in anticipation of such evidence being tendered on behalf of the defendants, gave a detailed account of the bidding which, she said, ended with a last bid by her of £4,550. She also gave the following evidence which was not disputed:—

Shortly after the conclusion of the auction she went to the table from which the auction...

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3 cases
  • Irish Life Assurance Company Ltd v Dublin Land Securities Ltd
    • Ireland
    • High Court
    • May 2, 1986
    ...JOSCELYNE V NISSEN 1970 2 QB 86, 1970 2 WLR 509, 1970 1 AER 1213 MONAGHAN CO COUNCIL V VAUGHAN 1948 IR 306 NOLAN V GRAVES & HAMILTON 1946 IR 376, 81 ILTR 9 RIVERLATE PROPERTIES LTD V PAUL 1975 1CH 133, 1974 3 WLR 564, 1974 2 AER 68 ROONEY & MCPARLAND LTD V CARLIN 1981 NI 138 SHIPLEY ......
  • Leopardstown Club Ltd v Templeville Developments Ltd
    • Ireland
    • High Court
    • January 29, 2010
    ...Ltd v Central Remedial Clinic [2005] IEHC 87 [2006] 2 IR 126 applied - Monaghan County Council v Vaughan [1948] IR 306, Nolan v Graves [1946] IR 376, United States of America v Motor Trucks Ltd [1924] AC 196, George Cohen Sons & Co Ltd v Docks and Inland Waterways Executive (1950) 84 Lloyds......
  • Black v Grealy
    • Ireland
    • High Court
    • November 10, 1977
    ...of the oral agreement (see: United States of America and another v. Motor Trucks Ltd., 1924 A.C. 196 and Nolan v. Graves and another, 1946 I.R. 376) arises. This is a case in which the parties (through their agents) entered into an oral agreement for the sale of land and as part of the agre......

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