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UNREPORTED IRISH CASES
Application for Summary Judgment granted.
The plaintiffs applied for summary judgment for
their £40,000 odd, this is in respect of a cheque for
£37,000 issued by defendants on 28 February 1972
plus interest. The defendants seek to avoid judgment,
because the Receiver, appointed on 17 November 1972,
had caused a search to be made in defendant's books,
which are all in his possession, and can find no mention
of a meeting held on 28 February 1972, nor of any
resolution passed by the directors authorising the
borrowing of £37,500 from the bank. In January 1972,
a customer of the plaintiff Bank, Mr. Nolan, requested
a loan of £37,500 from the Bank for the purpose of
acquiring Ardmore Film Studios, Bray. The Bank's
agent agreed to issue a cheque for £37,500 to defen-
dant's solicitors, on the understanding that the plaintiff
company would open its account at plaintiff's Bank
and take over the overdraft. On 28 February 1972 a
certified copy of a resolution sanctioning an overdraft
at the Bank's discretion was presented to the Bank
Manager, as well as copies of the memorandum and
articles of association of the new defendant company,
which had been formed. The bank manager then issued
the cheque for £37,500 to defendant company. Broadly
the particulars were true save that John Houston had
been added as a director. The defendants contended
that the principle of law applicable is that a firm
dealing
bona fide
with a limited liability company is
not required to inquire into irregularities in the internal
management of the company. Finlay J. is satisfied that
on 28 February 1972, the two directors were entitled to
hold a valid meeting, and that the resolution passed at
that meeting was valid. On the strength of
Duck v.
Tower Galvanising Co.
(1901) 2 K.B. 314, the plain-
tiffs are entitled to summary judgment.
Allied Irish Banks Ltd. v. Ardmore Studios Inter-
national (1972) Ltd.; Finlay J .; unreported; 30 May
1973.]
No breach of warranties under Hire-Purchase Acts—
Plaintiff responsible for overloading truck.
The plaintiff, a haulage contractor in Co. Cork,
claims damages against the defendants for breach of
conditions contained in S. 9 (1) (d) and 9 (2) of the
Hire Purchase Act 1946. The hire-purchase agreement
was signed on 4 August 1967 for the hire-purchase of a
new Bedford 7 Ton cab and chassis for £2,390, allow-
ing £560 for a "Trade-in" of an Austin Fiat and
chassis. The plaintiff claims that the Bedford Cab was
not of Merchantable quality, and not fitt for the pur-
pose required, i.e., road haulage. There is no doubt
that the purpose for which this cab was required was
made known to the owners of the garage where it was
purchased. The plaintiff intended himself to have a
body fitted on to the chassis, and the old body on the
Austin chassis was in fact fitted in. The plaintiff alleges
he had plenty of brake trouble from January to March
1968. In April the truck broke down in Tivoli with
a bearing gone in the back axle which involved subs-
tantial work by a garage. Various other repairs in
connection with the brakes and axle were carried out in
June and July, and in September a new gear box was
fitted; in November more repairs were carried out, but
the plaintiff was so dissatisfied with the truck that he
stopped using it after December 1968, and the truck
has lain on the side of the road unused for 3 years.
Up to then, the 17 hire-purchase instalments had been
paid, but, after that, the payments ceased. The de-
fendants accordingly counter-claimed for the remaining
19 instalments for.£1,125 odd. The defendants con-
tended that, in December 1968, the truck had travelled
more than 50,000 miles. An engineer for the plaintiff
examined the truck in May 1969, and stated that it
would have been worth £1,200, but was only now
worth £500 owing to the bad state of repair. There
was evidence that the truck, which was supposed to
carry 7 tons, was continually overloaded to the extent
of 10 or 11 tons, and this was essentially the cause of
the brake and axle trouble. It was continually over-
loaded in Whiddy Island for 3 months from May 1968,
and was not properly kept in good order and repair.
The crack was probably due to the manner in which the
body was fitted rather than to any defect in the
chassis. Accordingly, at the time of delivery, the cab
and chassis were of merchantable quality, and reason-
ably fit for the purpose required. Therefore the action
must be dismissed as there was no breach of any of the
implied warranties. The defendants are entitled to
judgment for £1,125 on the counterclaim.
[Maybury v. Mercantile Credit (Hire-Purchase)
Ltd.; Pringle J.; unreported; 20 December 1971.]
Custody of Young Children awarded to Mother.
The defendant husband and the plaintiff wife were
married in July 1966, and had 3 children—two daugh-
ters and a son—born between 1967 and 1969. The
couple lived unhappily in Cobh, and the marriage
finally broke up in April 1970, when the husband left
the wife, and gave the three children to his married
sister to look after. The wife agreed that the husband
should have custody of the three children, the married
sister kept them until September 1971, when they
were transferred to the custody of the husband's
parents until April 1972. Meantime the husband lived
with another woman and took the children into his
own custody. The wife had meanwhile been awarded
£6 per week for maintenance. She took a university
degree in Cork and can shortly become a teacher;
she proposes to live with her parents in Cobh. The
other woman is deemed suitable by the Court to
have custody, despite the birth of a natural child in
1971. The wife is deemed emotional and hysterical.
The intellectual welfare of the children is on the side
of the husband, as Dublin schools would tend to be
better; the same applies to the physical welfare of the
children, for the children now have their roots in the
husband's household.
However the moral factor is entirely in favour of the
wife, and following the Supreme Court decision in
Walsh v. Walsh
it would not be suitable for these
children to be living with a woman, who was not the
husband's lawful wife. This moral factor outweighs the
other advantages, and accordingly the custody of all
the children was granted to the wife residing in Cobh.
Additioned Maintenance of £3 per week net is awarded
to each child, the husband can have access to the
children once a week. This order is subject to any
change in circumstances that may occur.
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