White v Spendlove

• Jurisdiction: Ireland
• Judgment Date: 26 February 1942
• Date: 26 February 1942
• Court: Supreme Court

(S.C.),

White

and

Spendlove

Claim for recovery of purchase money on ground of total failure of consideration - Plea of no concluded agreement -Claim in former action for rescission of alleged contract and return of purchase money - Whether same cause of action - Dismissal of claim "same not having been proceeded with" - Effect of order in those terms - Estoppel - Evidence -Note in Registrar's Book admitted to explain ground of order - Rules of the Supreme Court (Ir.), 1905, Or. XXVI, r. 1.

1. T. S., the defendant in the present action, brought an action in the High Court in 1936 against E. W., the present plaintiff, claiming specific performance of an alleged agreement in writing, dated 9th February, 1935, which provided for the purchase by the said E. W. of certain premises for the sum of £1,050 by way of sub-lease for a term of 150 years to commence on 1st July, 1935. In her defence to that action, E. W. denied that she had signed the said agreement, and pleaded that she had entered into a different contract, partly oral and partly in writing, and dated 12th February, 1935, for the purchase of the said premises for the same price and term, but subject to certain conditions which she alleged to be conditions precedent to the said agreement. She pleaded that these conditions had not been fulfilled by the said T. S. and counter-claimed, inter alia, for rescission of the said agreement and repayment to her of the sum of £702 which she alleged had been paid by her on foot of the said agreement by way of deposit and in part payment of the purchase money. According to a note in the Registrar's Book, which was admitted in evidence in the present action, it transpired in the course of the plaintiff's case in the above action that the date for the commencement of the said sub-lease, namely, 1st July, 1935, had been inserted in the memorandum of agreement relied upon by T. S. subsequent to the alleged execution thereof by E. W. and that the claim of the said T. S. for specific performance was thereupon dismissed, following Kerns v. ManningIR, [1935] I. R. 869, on the ground that the said memorandum was not in law an agreement, an essential term having been omitted. E. W. did not proceed with her counterclaim in that action, which was thereupon dismissed by the trial Judge in the following terms: "It is ordered and...