Somers v Erskine (No. 2)

Judgment Date01 January 1945
Date01 January 1945
CourtSupreme Court
Somers v. Erskine (No. 2).
JOSEPH G. ERSKINE,Defendant. And, by order to proceed, Same Plaintiff v. AMELIA ERSKINE, Executrix of JOSEPH C. ERSKINE, Deceased, Defendant. (No. 2)

Supreme Court.

Solicitor - Negligence - Solicitor retained to negotiate building lease on behalf of intended lessee - Lessor's title defective - Solicitor having notice of possible defects - Failure to investigate title or advise client - Liability in damages - Evidence - Notes made by deceased solicitor of client's instructions - Admissibility in evidence - Claim against estate of deceased person - Whether corroboration necessary - Limitation of actions - Action commenced on sixth anniversary after cause of action accrued - Whether claim statute-barred - Common Law Procedure Amendment Act. (Ir.), 1853 (16 & 17 Vict., c 113), s. 20.

The plaintiff retained E. as his solicitor to act for him in taking a building lease for the term of 500 years of certain lands. The proposed lessor, L., was a receiver, appointed by the owner at the instance of an equitable mortgagee. Prior to these negotiations the owner had died and, doubts having arisen as to L.'s powers of leasing, the equitable tenant for life under the late owner's will executed a deed purporting to confirm the appointment of L. and to authorise him to make leases of the property. These facts were put before E. by L.'s solicitor, who expressed the view that L. had power to demise the property for a term of not more than 150 years. Without investigating L.'s title or inquiring into the legal position, E. permitted the plaintiff to execute and accept a lease from L. for the term of 500 years with a restricted covenant for quiet enjoyment. In subsequent proceedings, between L. and the present plaintiff, this lease was held wholly invalid by the Supreme Court, reversing Hanna J., who had held that it was a valid lease for the full term of 500 years.

The plaintiff sued E. for damages for negligence in the discharge of his professional duty. Pending the hearing E. died and the action was continued against his legal personal representative.

Held by the Supreme Court, affirming Martin Maguire J., that E. had been negligent in the discharge of his duty as the plaintiff's solicitor and was liable in damages.

During the trial the defendant sought to put in evidence certain notes in E.'s handwriting on the margins of some of the correspondence, such notes having been made immediately after interviews between E. and the plaintiff.

Held by the Supreme Court, reversing Martin Maguire J. on this point, that these notes were admissible in evidence as being a solicitor's record of his client's instructions and accordingly made in pursuance of his professional duty.

Relying on In re Harnett, 17 L. R. Ir. 543, the defendant contended that a claim against the assets of a deceased person could not be allowed upon the uncorroborated evidence of the claimant, but the Supreme Court heldthat the trial Judge was, in law, entitled to accept the uncorroborated evidence of the plaintiff in support of his claim.

The lease in question was executed by the plaintiff on the 30th January, 1934, and by the lessor on the 27th February, 1934. This action was instituted on the 30th January, 1940, and the defendant pleaded that the action was barred by s. 20 of the Common Law Procedure Amendment Act (Ir.), 1853.

Held by the Supreme Court, affirming Martin Maguire J, that the action was not statute-barred; Maguire J. taking the view that E.'s duty to the plaintiff continued up to the date of the completion of the lease by the lessor; the Supreme Court so deciding as, taking the date most favourable to the defence upon which the cause of action arose, viz., the 30th January 1934, when the plaintiff executed the lease, there was no evidence as to the particular time, on that day, at which the signature was appended, and accordingly the Court was not satisfied that an action could have been instituted on that day.

Trial of Action.

The principal facts have been summarised in the headnote and are set out more fully in the judgment of Martin Maguire J.

Michael Norton, referred to in the said judgment, was the owner in fee of certain lands in County Dublin; being indebted to the Royal Bank of Ireland, Limited, he joined with the said Bank in executing a deed appointing one, Hugh G. Levingston, receiver over these lands with power of leasing. Michael Norton died on the 9th April, 1932, having, by his will, devised his property to trustees upon trust to pay the income thereof to his wife for life; and she, on the 6th October, 1933, executed a deed purporting to confirm the appointment of the receiver. Subsequently a building lease of these lands for the term of 500 years was made by the receiver to the present plaintiff. In the case of Levingston v. Somers(1), in which action was brought for rent accrued due under this lease, the Supreme Court (reversing Hanna J., the Judge of first instance) held that this lease was invalid, for the reasons appearing in the judgments given in that case. The present action for damages was brought by the plaintiff against the solicitor who acted for him in taking this lease, for negligence and breach of professional duty in permitting him to take an invalid lease.

Pending the hearing of this action the original defendant died and an issue was directed as to whether or not the action survived and could be maintained against his legal personal representative. This issue was tried by Maguire P., who held that the right of action had survived (2): accordingly proceedings were directed to be continued against Mrs. Amelia Erskine, the widow and executrix: of the will of the original defendant. The plaintiff's statement of claim is set out in full in the report (2) of the trial of the said issue.

During the hearing of the action in the High Court, counsel for the defendant sought to put in evidence certain notes, proved to be in the handwriting of the original defendant and made shortly after interviews with his client, the plaintiff, which notes appeared on the margins of some of the correspondence. The notes on three letters in particular were in question.

The first was a letter, dated the 26th July, 1933, from Mr. Purefoy (the receiver's solicitor) to Mr. Erskine in the following terms:—"I send herewith draft lease to Mr. Somers. At the moment Mr. Levingston is not in a position legally to grant this lease, but I hope to have his right to make leases

confirmed in the near future. I understand that your client is anxious that the draft lease should be approved of at once. I would refer you to my letter of the 13th June last in which I sent you the draft map for approval." On the margin of this letter Mr. Erskine had written: "Handed dft. to S. He will peruse it. Satisfied with covt. for quiet enjoymt. Bk. a good mark."

The second letter was dated the 17th November, 1933, also from Mr. Purefoy to Mr. Erskine: after dealing with questions arising in connection with the building covenants in the lease this letter continued: "As to the term, Mr. Levingston is not satisfied that he has power to execute leases for a term longer than 150 years. This is now the regular term on the estate, and I submit that it is ample for any building lessee. Mr. Levingston is willing to execute a lease to your client for 500 years, but whether it would be good for a term greater than 150 years I personally would not like to say." On this letter Mr. Erskine had written:"S. wants permission to get in water. Agrees to rest. Hold until sewers question settled with Corpn."

The third letter was dated the 15th February, 1934, also from Mr. Purefoy to Mr. Erskine: it contained a proposal to omit the measurements from the schedule to the lease, the demised premises being clearly indicated on an indorsed map. Mr. Erskine had written on this letter:—"Mr S. agrees. Rounding of road at each end."

Martin Maguire J. held that these marginal notes were inadmissible in evidence.

From this decision the defendant appealed to the Supreme Court (2).

The following were among the grounds of appeal:—"The findings of the trial Judge were unsupported by the

evidence and against the evidence and the weight of evidence. The findings of the trial Judge as to the alleged negligence of the late Joseph C. Erskine were not open upon the pleadings in this action. The trial Judge was wrong in law in holding that the plaintiff's claim was not barred by s. 20 of the Common Law Procedure Amendment Act (Ir.), 1853. There was no corroboration of the plaintiff's evidence on matters essential to proving his claim, and the nature of his claim was such as to require corroboration. The trial Judge was wrong in law in allowing the plaintiff, as part of his damages to be recovered from the defendant, certain costs of the plaintiff's appeal to the Supreme Court in the action of Levingston v. Somers (1937, Record No. 820) (1).

There was no evidence before the Court that the damages awarded resulted from, or were the natural consequences of, any negligence or default of the said Joseph C. Erskine. There was undisputed evidence before the Court that any damage suffered by the plaintiff was occasioned by his own acts and defaults. The trial Judge refused to allow certain entries and memoranda in the handwriting of the said Joseph C. Erskine to be received in evidence. The trial Judge was wrong in law and exceeded his jurisdiction in finding that the plaintiff was entitled to be released from payment of a sum (namely, the sum of £21, the lessee's costs of a certain lease) admitted by the plaintiff to be included in a mortgage debt found due by the plaintiff to the defendant by the Examiner's Certificate in a suit entitledÉire éire. High Court of Justice. Record No. 1935, No. 1510.Erskine v. Somers."

Other grounds of appeal were concerned with the sum of £121 10s. 3d., awarded as costs incurred by the plaintiff in...

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    ...and he has, moreover, cited to us the observations of O'Byrne J. (delivering the judgment of the Supreme Court in Somers v. Erskine (1944) I.R. 368 at 385 in the course of which he appeared to accept that it is only a rule of prudence to require corroboration; and the further observations o......

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