The Gazette 1972

he wished to invest. The first defendant was a solicitor practising in Dublin, who took up residence in New Zealand before the appeal and failed to lodge security for costs. The second defendant is a costs drawer who has taken this appeal against a judgment of May 1953 of Davitt P. awarding the plaintiff £2,603 for damages for conspiracy and fraud. In May 1951 the solicitor told the plaintiff about a building site of ten acres at Dundrum and the plaintiff agreed that the solicitor would act for him in the pur- chase; he was subsequently shown these lands by the solicitor and he agreed to purchase for £8,000. The costs drawer was closely associated with the solicitor in the development of the land, he had an option to purchase these lands for £5,500, the option to be exer- cised before 31st August 1951. The solicitor concerned wrote on behalf of the costs drawer that he was pre- pared to exercise his option, and sent provisional cheques for £1,380. The solicitor got a cheque for £1,380 from the plaintiff on September 10th. The plaintiff had meanwhile given him definite instructions purchase. The solicitor finally closed in the costs accountant office on 21st December 1951, by the plain- tiff delivering to the solicitor a cheque for £6,689; out of this sum, the solicitor paid on behalf of the costs drawers a cheque for £3,835 to the owner of the lands. The following day, the solicitor handed the costs drawer a cheque for £2,540 which the drawer lodged to his personal account. It was only on 31st December 1951, when the plaintiff got the deeds from the solicitor that he learnt of the costs drawers position in reference to the option, and of the £2,500 paid to the drawer. The plaintiff's immediate reaction was that he had been deceived and kept in ignorance of the facts. The plain- tiff then brought an action for fraud and fraudulent conversion and after a patient hearing, Davitt P. assessed damages against the two defendants combined —the solicitor and the costs drawer in the sum of £2,500 for the loss sustained on the purchase of the lands, and a further £105 in respect of architect's fees incurred by the plaintiff for development plans. At the trial there was direct and irreconcilable controversy between the evidence of the plaintiff and that of the defendants. The President had the benefit of seeing and observing the parties and witnesses, as well as their demeanour and reaction, and accepted fully the evid- ence of the plaintiff. The inferences the President drew from the evidence were unavoidable and inescapable. I t is not for an appellate court to rehear the evidence. Throughout the costs drawer was fully aware of the relationship of the solicitor and of the plaintiff and took full advantage of it, and cannot now attempt to allege that the solicitor was inexperienced and conse- quently negligent. The Supreme Court (Conor Maguire,

C.J., Lavery, Kingsmill-Moore, O Dalaigh and Martin Maguire J.J.) consequently dismissed the appeal. [Oakes v Lynch and White; Supreme Court; unre- ported; 21st December 1954.]

Claim for contribution by one defendant against another rejected.

Plaintiff was p. plasterer in employment of first defen- dant. The second defendants are general contractors, who were engaged to carry out extensive renovations in a house near Carrickmacross. The second defendants subcontracted the plastering work to the first defendant and agreed they would provide the necessary scaffold- ing required by the plasterers of first defendants in connection with their work. The plaintiff was injured from an insecurely supported scaffold, and he sued the first defendants, his employer, and the second defen- dants. The employers were acquitted by the jury of all negligence, but the second defendants were found liable to the extent of one-third, and the plaintiff was found liable to the extent of two-thirds of the damage. The net result was a verdict for the plaintiff for £2,546. The second defendants duly paid this amount and costs to the plaintiff, and are now seeking a contribution from the plaintiff's employers, the first defendants. As the plaintiff was paid, he took no part in the appeal. The scaffolding equipment which the second defen- dants provided was good and sound. The plaintiff, of his own accord, nailed a batten to a door jamb with a single nail and supported one end of the scaffolding planking on this batten. Later the batten and the scaffolding came away. The main grounds of appeal was that Henchy J. had misdirected himself in law in directing the jury that the first-named defendants could be absolved from their primary inability to provide a safe system for their employee. The ground is rejected on the ground that there was ample evidence on which the jury were justified in answering all the answers, it did in respect of the first defendants. The appeal of the second defen- dants is consequently dismissed by the full Supreme Court. Per Walsh J. : There was no substantial case against the first-named defendants and by their election not to join the plaintiff as a party to this appeal the second- named defendants have put it out of their power to have the judgment against them set aside. . . . There are certainly no grounds upon which the judgment which was given against one defendant can be trans- ferred either in whole or in part on to the shoulders of the other defendants. [Thomas O'ReiHv v Creedon Ltd., and Messrs Clif- ton and Cooper Ltd.; Supreme Court; unreported; 4th February 1970.]

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