Re Todd and M' Fadden's Contract

• Jurisdiction: Ireland
• Judge: Kenny, J.,M.R.
• Judgment Date: 07 February 1908
• Court: King's Bench Division (Ireland)
• Docket Number: (1908. No. 46.)
• Date: 07 February 1908

In re Todd and M'Fadden's Contract.

Kenny, J.(forM.R.)

(1908. No. 46.)

CASES

DETERMINED BY

THE CHANCERY DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND BY

THE IRISH LAND COMMISSION,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL.

1908.

Vendor and purchaser — Conditions of sale — Time for delivery of abstract and requisitions — “Immediately” — Meaning of.

Held, that the abstract was not delivered “immediately,” and consequently not within the time specified in the conditions, and that therefore the purchaser was not bound by the condition requiring the requisitions to be furnished within four days from the delivery of the abstract.

Upperton v. Nickolson (L. R. 6 Ch. 436) followed.

Originating Summons.

This was an application entitled in the matter of the contract dated the 30th December, 1907, for the sale of the house, mills and farm, and premises known as New Mills, situate in Glasslough, in the county of Monaghan, and made between Emily Elizabeth Todd as vendor, and Bridget M'Fadden as purchaser, on behalf of the purchaser, for a declaration that in the events which happened the requisitions delivered on behalf of the purchaser on January 13th, 1908, were delivered within a reasonable time, and that the purchaser was not, in the events which happened, precluded from having the said requisitions answered by condition 10, relied on by the vendor, and for the costs of the application.

The facts of the case were as follows:— The premises in question were held under a judicial tenancy at the rent of £60, fixed by an originating agreement dated May 23rd, 1899, made between Samuel Cargill deceased, as tenant, and Sir John Leslie as landlord. The rent was subsequently reduced to £58 7s. 6d. by reason of portion of the land having been taken for the purpose of building a labourer's cottage by the Monaghan District Council. The vendor was the personal representative of Samuel Cargill, who died on June 19th, 1902, and was selling as such.

The material conditions of sale were as follows:—

5. The vendor shall, immediately after the sale, furnish to the purchaser or his solicitor an abstract of title to the said premises.

6. The title to the premises shall commence with an originating agreement dated May 23rd, 1899, made between Samuel Cargill as tenant, and Sir John Leslie as landlord.

10. The purchaser shall make his objections and requisitions, if any, in respect of the title and all matters appearing in the particulars and conditions, and send the same to the office of the vendor's solicitor within four days from the date of the delivery of the said abstract, and in this respect time shall be of the essence of the contract.

The conditions were in a printed form. Condition 5 ran thus: “The vendor shall, within days after the sale.” The words “within days” were struck out, and the word “immediately” written in.

The sale took place on December 30th, 1907, when Bridget M'Fadden signed an agreement acknowledging herself to be the purchaser for the sum of £535, and binding herself to complete the purchase agreeably to the particulars and conditions of sale. The vendor resided at Bangor, in the county of Down, and the purchaser at Glasslough, in the county of Monaghan. The solicitors for both parties carried on business in the town of Monaghan.

On January 1st, 1908, Mr. James H. Ross, the purchaser's solicitor, wrote to Mr. William Martin, the vendor's solicitor, asking for the abstract of title, copy conditions of sale, searches and various other documents specified in the conditions, and for a copy of the will and probate of Wilson Cargill, deceased. On January 2nd, 1908, Mr. Martin replied, enclosing the copy will and probate asked for, and stating that he would send the other papers without delay.

On January 3rd Mr. Ross wrote returning the copy will, to have it more carefully compared; and on the same day Mr. Martin replied, stating that the copy had been carefully compared with the probate. On January 4th Mr. Martin wrote to Mr. Ross, enclosing copy conditions of sale, abstract of title, and documents to vouch; and this letter was received at Mr. Ross's office on the same day. On January 8th Mr. Ross wrote to Mr. Martin, returning the copy of the will of Wilson Cargill, and informing him that he had that day received a notice from Mr. Dunwoody, solicitor for Mr. Richard Cargill, of his intention to take proceedings for the recovery of the “Miller's field,” which he was informed was comprised in the farm contracted to be sold to his client.

On January 10th Mr. Martin replied that his client repudiated entirely Mr. Richard Cargill's claim, and was prepared to indemnify the purchaser against it. On January 13th Mr. Ross wrote to Mr. Martin, enclosing requisitions on title, and requesting him to attend to them at once. On the same day Mr. Martin wrote to Mr...