Rooney v Byrne

• Jurisdiction: Ireland
• Judgment Date: 01 January 1933
• Date: 01 January 1933
• Court: High Court (Irish Free State)

[H. C., I.F.S.],

Rooney

and

Byrne

Construction - Contract made subject to purchaser getting an advance on the property - Failure of purchaser to obtain advance from one source -Advance obtainable from other sources - Refusal by purchaser to complete - Sum of money paid by purchaser to vendor's agents on signing contract as "part of the purchase money" - Claim by purchaser for return of the money so paid -Letter from vendor's agents to purchaser stating vendor's intention to forfeit the money paid -Whether a rescission of the contract - Delay in completion - Waiver of term in contract fixing date for completion.

By a proposal in writing the plaintiff agreed to purchase a house and premises from the defendant for the sum of £400, and this proposal the defendant accepted in writing. The proposal stated that the plaintiff lodged (at the time the proposal was signed) the sum of £50 with the defendant's agents as "portion of such purchase money."The proposal also stated that the sale was to be completed within two months of the date of the signing of the agreement (the 24t April, 1931) and that the proposal was subject to the plaintiff getting an advance on the property. The plaintiff subsequently applied to an Insurance Company for an advance on the property, but the Insurance Company refused to make it, stating that the property was not a suitable security. The plaintiff then wrote to the defendant's agents asking for the return of the £50 paid by him and stating that, in view of the information given him by he Insurance Company, that the property was not a suitable security, he did not intend to proceed with the purchase. No further effort was made by the purchaser to secure an advance from anyone, though it appeared in evidence that an advance could have been obtained elsewhere. Following some further correspondence between the parties, in which the defendant insisted upon the completion of the sale, the defendant's agents, on the 12th August, 1931, wrote to the solicitor for the plaintiff that they had been cautioned by the defendant's solicitors against parting with the £50 "which the vendor [the defendant] intends to forfeit" as "your client has failed to complete the purchase." On the 4th November, 1931, the plaintiff issued a Civil Bill claiming a return of the £50. The Circuit Court Judge gave a decree for the amount claimed, holding that, as the agreement stated that the £50 was deposited as...