The Gazette 1972

Guard suspecting felony does not violate inviolability of dwelling in accused's absence Accused found guilty of breaking and entering with intent to commit a felony at Cork Circuit Court, and sentenced to four years penal servitude. The only evid- ence against him had been that an electric torch, found outside the premises, had been in the caravan in which accused resided. Guard Murphy who was making inquiries into other offences in which accused was allegedly involved, entered the caravan when empty and made marks on the torch which enabled him to say that it was the one found outside the premises. Despite objections. Judge Neylon ruled that the guard's statement was admissible; the detailed effect of the statement is set out in the judgment. It was submitted that the marking of the torch should not have been admitted, because it allegedly involved a breach of the accused's right of inviolability of his dwellings under Article 40, Section 5. of the Constitution. It was held that the dwelling of every citizen under the Consti- tution is inviolable except to the extent that entry be permitted by law which may permit forcible entry— Guard Murphy had authority to arrest the accused with- out warrant if he had reasonable grounds for suspecting that the accused had committed a felony, namely breaking and entering, and would have arrested him if he had been there. The entry was therefore authorised. Held that in his discretion Judge Neylon had rightly admitted the evidence about the torch. The conclusion to be drawn from the finding of the torch was a matter of inference for the jury. In view of the accused's eight previous convictions, and his record as a professional criminal, the sentcncc, though severe, was not cxccssive. Appeal dismissed. Leave given to appeal to the Supreme Court on the question whether Guard Murphy's evid- ence as to the marking of the torch was prope. I; admissible. People v. Michael Hogan —Court of Criminal Appeal (McLoughlin. Kenny and Griffin J. J. per Kenny J.— 30th June. 1972. Sale of premises includes right of way to back of premises Proceedings relate to a right of way in premises in Ranelagh, Dublin. The terraced house belonged to the Ward Estate and were sold for £3,300. The plaintiff is the executor of Ward. The defendant, a doctor interested in property development, alleges that the only means of access to the premises for the pur- poses of conversion, is through a laneway at the back. There is a large double gateway in the lane which was locked and bolted before the purchase. Proceedings started in June 1966, when plaintiff sought specific performance of the purchase agreement executed in January 1966; plaintiff also sought damages for brcach of contract, or the forfeit of the deposit. The original closing date was 28th February. 1966. A right of way over the back laneway to the public road in common with the corners of the adjoining house was conveyed to the respective grantees in the conveyance. The plaintiff contended that there was no mention of the right of way in the description of the premises in the contract of sale, and sought specifice performance in respect of the premises only. The defendant con- tended that it was an express or implied term of the contract that the right of way was included: in the alternative he claimed rescission, repayment of the deposit and damages. Defendant also claimcd that he was induced to enter into the contract by misrepre- sentations as to the right of way contained in a press 201

only submit an offer of £18,000 to the vendor on the basis that vendor would tcceivc £18,000 clear of commission. If the auctioneer, having absolved the vendor from leability, wished to have his agreement with Smit secured by the insertion of a term in the contract for' sale, he should have obtained the agreement of the vendor to it, and this he did not do. Later on, after the auctioneer had acccpted the offer of £18,000 there seems to have been an offer to pay £450 to the auctioneer by way of gratuity, but as this arose after the event upon which the commission was to be paid, this claim fails on the ground that past consideration is no consideration. Although the original agreement was altered, the partisc did not have the same understanding of the intent and effect of the alteration. It was contended by the defendant that there was a further obligation to include in the contract for. sale a clause which would secure for the plaintiff the amount of his commission. The evidence does not support this conclusion. There was no conversation with either the plaintiff or his solicitor before the signing of the contract, therefore there could have been no agreement as to what could be in the contract as far as the auctioneer was concerned. There was nothing to indicate that it was cither an express or an implied term of the contract that the contract of sale would take that form. Accordingly Davitt P. had wrongly found that the original agreement had never been altered but the the arrangement arrived at between the auctioneer and the purchaser was that the purchaser would pay a sum equal to the commission in addition to the purchase price to the vendor, who had allegedly remained at all times liable to the auctioneer for the full amount of the commission payable. There was in fact no such clause in the contract, and accordingly Mr. Smit had only paid a total sum of £18.000. The auctioneer's claim for commission fails, and the appeal is allowed. (Daly v. Carson (Full Supreme Court p Wals and Fitzgerald J. J.—unreported—20th February, 1967.) The plaintiffs claimed specific performance and damages for breach of contract arising out ot the sale of premises, Upper Rathmines Road. Dublin, in December 1963 for £5,050. The purchaser duly paid auctioneer's fees and 25% of the purchase money; eventually they refused to complete on the ground of breach of contract, and sold it to a third party for £7,000. Kenny J. found that the defendants, Ardmayle Estates, had been in brcach of contract in refusing to complete, and awarded £1,950 to the plaintiff Holohan, as this was the difference between the purchase price and the subsequent sale price. The payment of £1,262.50 by way of deposit was not pleaded, as there was a misunderstanding about this, and was thus not allowed. The claim of the second plaintiff was dismissed with costs. Undoubtedly the Judge erred in principle in the award of damages. If the facts of the case were such that the trial Judge is of opinion that he could make an order for specific performance, but in his discretion awards damages in lieu thereof, he must take into account the plaintiffs loss of bargain and out of pocket expenses. It was not necessary to expressly claim it in the pleadings before it could be included. As regard the second plaintiff, however unmcritorious his con- duct may have been in the course of the negotiations, his claim cannot be dismissed, once Kenny J. had heard that the defend- ants were in breach of contract. The order should have given judgments to the plaintiffs, but directel that no order as to damages be made in respcct of the second plaintiff. The judge was correct in assessing the damages in part on the basis of the difference between trie purcase price and the new sale price. a The defendans tried unsuccessfully to contend that the plain- tiffs were not willing at all material times to perform their side of the contract, as the delays were waived by the defendants. The defendants by letter of January 1964 tried to make time the esscnce of the contract, but the Judge had rightly held that they had no power to do so, as they themselves were not in a position at the time to show a title free from incumbrances. The appeal is accordingly allowed, and Kenny J's order is varied by increasing he damages by £1,262.50 to a total of £3,212.50 to be awarded to the first plaintiff. Judgment should also be entered without damages in favour of the second plaintiff. (Holohan and O'Rourke v. Ardmayle Estates—Supreme Court (Walsh Buld and Fitzgerald J. J.) per Walsh J.— unreported—Ist May, 1967. First plaintiff awarded damages, being the difference between the purchase price—and the subsequent sale price, as well as return of deposit, in respect of abortive sale.