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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.)
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.
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.
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