188 / 328
references were not satisfactory, and thereupon the
vendors rescinded the contract under the power
reserved to them by the National Conditions of Sale.
The purchaser then asked for the return of her
deposit of
fyo.
The agents refused to return the
deposit and
the purchaser started proceedings
against both the vendors and the agents for its
return. The vendors also started proceedings for the
return of the deposit. The County Court judge gave
judgment for the purchaser against the vendors and
for the vendors against the agents.
The Court of Appeal dismissed the agents' appeal
from the decision of the County Court Judge. The
case turned upon the meaning of the words " willing
and able " and particularly upon the latter word.
The appellants relied upon conditions
(b)
and
(d)
it being their contention that they had introduced
" a person willing and able to purchase " the business
within clause
(c),
or, alternatively, the case fell
within (</), since they had been paid a deposit which
had not been withdrawn within a period of thirty
days. The court rejected the contention that the
word " able " meant merely financially able. Denning
W. R. said that a purchaser must be able in the case
of the leasehold to satisfy the lessor that he is a
suitable tenant so that the lessor is willing to accept
him as a tenant and to give his consent to the assign
ment. Otherwise he is not an " able " purchaser ;
for he is not able to complete the purchase. " Able "
means able not only to sign a contract but to go on
and complete the purchase.
The Court was also of the opinion that in the
ordinary way of business when an estate agent is
going to supply a purchaser the understanding of
most people is that commission is payable out of
.the purchase price when the matter is concluded.
The Court accordingly held that if the agent seeks
to depart from the ordinary well understood term
he must make it perfectly plain in his contract and
if he produced a document which is capable of two
constructions, one reasonable and the other un
reasonable, the Court will strive to give the document
the reasonable interpretation.
In the particular
contract it was provided that the agents were
instructed " to do their utmost to introduce to us
a person willing and able to purchase the business ".
The Court said that this could not mean that the
agents earned their commission by doing " their
utmost " if their utmost did not produce any result.
What was meant therefore was that the agents were
entitled to their commission when they introduced
a willing and able purchaser and an able purchaser
meant one who was in a position to go through with
the sale.
(Dellafiora
v.
Lester 1962-3
All England
Reports,
page 393,
The Law Times,
October 26th,
1962, page 595.)
THE REGISTRY
Register B.
CONVEYANCING AND PROBATE CLERK with two years' experience
with present employers in London requires similar position
in Ireland, preferably in Dublin. Full particulars supplied on
request. Box 8269.
Register C.
Will any person knowing anything of the whereabouts of
a Will of Joseph Denis Doyle, formerly of Dublin and recently
living in London, aged about 80 years, who died in December
1962, please communicate with Messrs. George D. Fottrell
& Sons, Solicitors, 30 Lower Baggot Street, Dublin.
REGISTRATION OF TITLE ACTS, 1891
AND 1942
ISSUE OF NEW LAND CERTIFICATES
Applications have been received from the regis
tered owners mentioned in the Schedule annexed
hereto, for the issue of Certificates of Title in
substitution for the original Certificates issued in
respect of the lands specified in the said Schedule,
which original Certificates, it is alleged, have been
lost or inadvertently destroyed.
A new Certificate will be issued in each case,
except a case in respect of which notification is
received in this Registry within 28 days from the
publication of this notice, that the Certificate of
Title is still in existence, and in the custody of some
person other than the registered owner. Any such
notification should state the grounds on which such
Certificate is being held.
Dated the 2nd day of February, 1963.
D. L. McALLisxER,
Central Office,
Registrar of Titles.
Land Registry,
Chancery Street, Dublin.
SCHEDULE
1. Registered Owner Daniel O'Mahony.
Folio
number 715 R.
County Cork.
Lands of Boola-
durragha North in the Barony of Kinatalloon
containing 248a. or. 2op.
2. Registered Owner R. Naylor & Sons Limited.
Folio number 21. County Louth. Lands of Bellurgan
in
the Barony of Dundalk, Lower containing
133. 3r. op.
3. Registered Owner James Lennon.
Folio
number 6153. County Longford. Lands of Glen
in the Barony of Ardagh containing 323. or. 5p.
4. Registered Owner Bridget Anne Tracey. Folio
number 11109.
County Tipperary.
Lands of
Ballycraggan in the Barony of Ormond Lower
containing 143. or. 3yp.
5. Registered Owner Philip Reilly. Folio number
16738. County Cavan. Lands of Mountprospect in
the Barony of Castlerahan containing i9a. 2r. op.
Printed by Cahill & Co., Ltd., Parkgate Printing
Works, Dublin.