148 / 294
the contract was not completed until the end of Septem-
ber 1969. The defendants have completely failed to sub-
stantiate any damages for delay. The only damages to
which defendants are entitled on their counterclaim is
the sum of £213 for alleged defects in workmanship
and materials.
[Hugh O'Neill & Co. v Roche; Pringle J.; unre-
ported; 19th January 1972.]
Contract: Claim for fundamental breach of contract
rejected.
The plaintiff, a bank official who retired in 1965, wished
to go into business in 1967, and establish a dry cleaning
business in Loughrea. Before doing so, one of the
managers of the defendants came to see the plaintiff at
his request, and discussed payments : he mentioned a
dry cleaning machine called a Monarch Princess. The
plaintiff, who had no previous experience of this busi-
ness, went to Dublin to inspect the machines. He finally
signed an order form in May 1967 which related to
four Frigidaise washers, two dryers and dry cleaning
with one roller and one pump, therein called "the
equipment". The price of the equipment was £4,213,
and he paid a deposit of £857.60. The plaintiff signed
the order subject to the company's general conditions,
including one as to a guarantee by the company. In the
guarantee, the company undertook during the period of
90 days from handing over the keys to the customer to
repair or replace free of charge, provided three days
notice of defects was given, and no repairs were made
without the consent of the company. Consequently the
company was not to be liable to the customer for any
consequential loss or damage resulting from faulty
equipment. The machines were duly delivered in Lough-
rea on 8th September 1967. Their installation was
supervised by company officials, and business com-
menced on September 15th. The plaintiff signed a hire
purchase agreement with a hire purchase company, by
which a sum of £3,870 was to be repayable in 36
monthly instalments of £107.50. The dry cleaning
machine developed an electrical fault on September
25th which was duly repaired by the company. On
September 28th a fault developed in the valve qf the
machine which was duly repaired; this defect was again
remedied on October 16th and 30th. By this time the
plaintiff was convinced the machine was unsatisfactory.
The plaintiff's solicitor wrote to the company on
November 1st pointing out that the machine was defec-
tive, and asking him to remove the machine, refund
him the entire purchase price, and reimburse him for
losses.
Undoubtedly the clothes put through the dry clean-
ing machine had a very strong smell which made them
unwearable, but this is not mentioned in the solicitor's
letter.
In January 1968 a mechanical engineer examined
the machine, and found various defects. He thought
that the corrosion would be progressive, but did not
mention the smell which apparently became noticeable
in mid-November, and was only communicated to the
company in January; this undoubtedly damaged the
plaintiff's business reputation. In endeavouring to
secure maximum profit he did not use sufficient washing
niaterials. The smell was thus not caused by any funda-
mental defect in the machine.
On 12th March 1968 the company decided that
plaintiff's dry cleaning machine was unsatisfactory, and
they delivered a new machine to him on April 25th.
Nevertheless the plaintiff sued for damages for breach
of contract for failure to repair on foot of the guarantee.
The Judge would not consider the point that a funda-
mental breach of contract had been committed becuase
it was not pleaded. As the door of the dry cleaning
machine leaked for a while, damages were assessed at
£25.
[Counihan v Automations International (U.K.) Ltd.;
Kenny J.; unreported; 5th December 1970.]
Guardianship
of
two boys awarded to Father.
The husband, a member of the Plymouth Brethren,
went to Canada in 1957 and worked in television with
the Canadian Broadcasting Corporation. He married
the wife in 1958, and they continued to live in Canada,
mostly in Toronto, until 1971.
Although the first son was born in 1960, and the
second son in 1963, the marriage was not a happy one.
There were constant arguments about money, as he was
easy-going and she was very competent. The wife gradu-
ally felt lonely and neglected, and her affection gradu-
ally turned into irritation and contempt. In a word—he
was inconsiderate and she was impatient. The wife
finally left him in 1971 and went to stay in separate
lodgings. All attempts at reconciliation failed, and the
boys stayed with the father. In July 1971 the husband
and the boys returned to Dublin, and since then the
husband has been working as a freelance editor of films
for television, earning £200 per month. The husband
is now forty years and the wife forty-six years of age.
The husband tried to induce his wife in vain to join
him in Ireland which she had visited several times. The
husband had now bought a home in Ballinteer, and is
repaying a mortgage with money advanced by his rich
parents, who live near him; he also has a resident
housekeeper, and the boys are attending St. Andrew's
College in Dublin. The wife meanwhile had brought
divorce proceedings in the Supreme Court of Ontario,
and was awarded interim alimony of $175 per month.
The wife, in applying to this Court for custody of
the children alleges her husband is not a suitable per-
son to have them. The wife hopes to return to England
and train as a teacher; she had previously been a
telephone operator. A Canadian psychiatrist, Dr. David-
son, was consulted by the wife, and came to Dublin at
his expense to give evidence. Although Dr. Davidson
had never had an interview with the husband, he
alleged in Court that, from the particulars supplied to
him by the wife, he considered the husband to be a
psychopath and to have paranoid tendencies. The hus-
band consulted a well-known Dublin psychiatrist who
could find no evidence of personality disorder.
Furthermore the Judge thought that, in tendering
evidence, the husband gave no indication of abnormal
outlook or behaviour.
It was alleged that the letters written by the hus-
band's parents to him in Canada proved that he was
an unsuitable person. The Judge found, however, that
these letters were based entirely on what the wife had
written to them, and did not prove any such thing.
In considering the matter of welfare, the Judge
thought that the intellectual, physical and social wel-
fare of the two boys of 12 and 9 would be best served
if they were to remain with their father in Ireland. The
wife's application for custody of the children was con-
sequently rejected.
[Waters v Waters; Kenny J.; unreported; 27th April
1972.]