656 / 736
seller not later than 21 days before the commencement
of the shipment period" in clause 3 of a contract in
Form No. 34A of the Seed, Oil, Cake and General
Produce Association,
it was enough
if
the port of
destination was declared on the twenty-first day before
the commencement of the period.
[Garapanayon & Go. Ltd. v Comptoir Commercial
Andre & Git. S.A.—Queen's Bench Division—
The Times
—
4 February 1971.]
Salesman's Commission
Plaintiff salesman employed by defendant company
in Dublin on commission basis from 1937 to 1951. In
February 1951,
the defendants purported to dispense
with his services but he was reinstated from August 1951
as town traveller—On account of persistent illness he
resigned in July 1952. Contract purported to state that
Commission was only payable
in
respect of orders
arising from calls on customer, and not directly on
orders in the warehouse. Plaintiff contended that pay
ment of commission on orders at the warehouse over a
long period constituted
an
agreement by
conduct,
and
that
the consideration was his service with the
company. Davitt J. rejected
the plaintiff's plea
that
the terms of his original employment had been altered
so as to make it an area or territorial agency. But the
Supreme Court
(Maguire C.
J., Lavery, Kingsmill-
Moore, O'Daly and Martin Maguire
J.J)
allowed
plaintiff's appeal, and held that this commission was
payable throughout.
[Healy v Frank Hugh O'Donnell Ltd.—-Supreme
Court—unreported—28th February 1957.]
Plaintiff entitled to specific performance,
and defences of misrepresentation, lack of
title and unfairness rejected
Plaintiff seeks Specific Performance of a Contract of
Land on Folio 50172 Co. Galway whereby he agreed
to sell and the defendant agreed to buy said lands for
£8,000. The defences are :—
(1) That the defendant was induced to enter into this
contract as a result of the plaintiff's misrepresentation
and
that he
is
consequently enitled
to
rescind
the
contract.
(2) The plaintiff had not made good title to the land.
(3) That the Court should decline to grant Specific
Performance, as the Contract is unfair to defendant.
Sale was made subject to the right of residence cluring
their lives of another man man and his wife; this man
to sign an agreement as to the rights of grazing con
ferred upon him; subject to
this, the Vendor agreed
to discharge equities. The rights of residence and of
grazing in favour of the two third parties were registered
as a burden on the folio; the purchaser had however
agreed to acknowledge the grazing rights of the husband
only and it was consequently necessary for the Vendor
to obtain a release from the wife of her grazing rights;
however it transpired that, as a result of a marriage
settlement,
the husband
and wife were
tenants
in
common in equal shares of the land. Thus the transfer
from
the husband
to the plaintiff vendor was onlv
effective to transfer to him his half share in the land,
and that the registration of the burden as to residence
and grazing only operated on the husband's half share.
Consequently the wife remained the owner of the other
half share free of any burdens. The wife duly by deed
transferred her interest in the lands to the plaintiff free
of equities for £150. The alleged misrespresentations
consisted in :—
(1) That the plaintiff had
inaccurately stated
the
position in regard to
the good grazing land involved
which in fact was subject to flooding.
(2) That the plaintiff had alleged that the husband
and wife who were to reside on the land were "in their
seventies" whereas the husband was 64 years of age,
and the wife 57. The evidence establishees in any event
that the defendant was not disposed in July to proceed
with the sale, as he had not the relevant cash—yet in
August his
solicitors wrote
that
their client would
complete the matter as soon as the terms of the contract
were complied with. It was not until November that
the question of Misrepresentation was first raised.
Pringle J. held :--
(1) That
there was
no misrepresentation which
entitle_d
the defendant
to rescind
the contract. The
plaintiff, in speaking of the land, was merely puffing,
and the defendant, who is an auctioneer, undoubtedly
relied on his insoection of the land; the defendant's
main interest in
the land was in their road frontage
for building purposes.
(2) It is well known that the discharge of equities
from a folio takes a long time. Once the defendant had
purported to purchase the contract in November, the
plaintiff was entitled to bring specific performance pro
ceedings, even
though he was not at the
time
in a
position
to convey the lands in accordance with the
contract.
(3) The alleged failure by the plaintiff to disclose
the existence of the wife's half share interest was not
unfair conduct. The plaintiff's dutv under the contract
was to discharge equities, and this he has done.
According Pringle J- made an order for specific per
formance without costs.
[Heffernan v Kavanagh—Pringle
J.—unreported—
14 November 1969.]
Costs
Where a plaintiff is granted the costs of interlocutory
proceedings in an action and subsequently the action is
dimissed for want of prosecution because of undue delay
he does not forfeit the earlier costs.
FTeheran Europe Co Ltd. v ST. Belton (Tractors)
Ltd.
(No.
2)—Court
of
Appeal—
Tlie
Times—
6
February 1971.]
Crime
When the Queen's Bench Divisional Court dismissed
an application for an order of habeas corpus bv Gerald
Fernandez, who had been committed to prison penrlinp
extradition, their Lordships rejected a submission
that
affidavit evidence adduced bv the Singapore Govern
ment in support of two charges of corruption while he
196