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MR. SEAN O'hUADHAiGH, Solicitor, died on the 2ist
January, 1959, at a Dublin hospital.
Mr. O'hUadhaigh served his apprenticeship with
the late Mr. James Moran, z Inns Quay, Dublin, was
admitted in Trinity Sittings, 1915 and practised at
51 Dawson Street, Dublin as senior partner in the
firm of Messrs. Scan O'hUadhaigh & Son.
He was a member of the Council of the Society
from 1933 until the date of his death, was Vice-
President for the year 1936-37 and President for the
year 1947-48.
DECISIONS OF PROFESSIONAL
INTEREST
In an action for forfeiture of a lease on the ground that
there was a breach of covenant that the premises were not
to be used for lodging or dwelling., it was held that the
defendant was in breach of covenant in using the premises
for residential purposes.
In 1941
the defendant became
the tenant of
certain premises comprising a ground floor shop
and basement described as a lock-up shop, for a
term of three years during which he was allowed
by the landlords (the plaintiffs) to sleep in an office
behind the shop. By a lease dated 5th April, 1944,
the plaintiffs let the premises to the defendant for
a term of three years from Lady Day, 1944, the
defendant covenanting not to use the premises
except as a shop for his business of an antique dealer.
The defendant continued to carry on business there
and to sleep behind the shop and during this period
he fitted up the basement rooms for residential
purposes. The plaintiffs knew that the defendant
slept on the premises from time to time but did not
know that the property was his residence.
In
January 1947, the defendant asked for a new lease
and in May the plaintiffs' solicitors sent a draft,
clause 2
(9) of which contained a covenant by the
lessee :
" To use the demised premises as and for
showrooms, workrooms and offices only and not
to use exercise or carry on (certain specified trades
and businesses) .
.
. and not to permit or suffer the
demised premises or any part thereof to be used as
a place for lodging dwelling, or sleeping." On
zyth October,
1947,
the defendant's
solicitors
returned the draft, having struck out the last part
of clause 2 (9), and enclosed a letter saying that the
defendant had been sleeping on the premises for
some time. There followed correspondence between
the solicitors. Meanwhile the plaintiffs' agent told
the defendant orally that if he signed the lease the
plaintiffs would make no objection to his continuing
to reside there; as a result of that the defendant
was willing to complete. On loth February, 1948,
the lease and counterpart were exchanged, the lease
omitting the words which had been struck out from
clause 2 (9) of the draft by the defendant's solicitors.
After the execution of the lease the defendant con
tinued to reside and carry on business on the
premises. In May, 1956, the defendant asked for a
new lease and the plaintiffs' managing director
having visited the premises and learned that the
defendant was living there wrote giving the defend
ant notice to quit.
In an action for forfeiture of the lease on the
ground of breach of covenant, the defendant denied
that he was in breach, and alleged, alternatively, that
the plaintiffs had waived the covenant or, alter
natively, were stopped from relying on it. He also
counterclaimed for rectification of the lease and
relief against forfeiture :—
Held by Harman J., (i) that on the question of
construction of the covenant it was not permissible
for the court to look into the past history of the
matter or to rely on the fact that the defendant had
been living on the premises to the plaintiffs' know
ledge ; nor could the fact be called in aid that-express
words of prohibition as to residence had appeared
in the draft but were not in the lease as executed,
none of these matters being surrounding circum
stances which could be called in aid to construe the
language used.
(2) That the nature of the property, however, was
a matter to be taken into consideration, and the fact
that these particular premises were not suitable for
a dwelling-house, taken with the fact of a covenant
to use them for showrooms, workrooms and offices
only, clearly showed that the defendant was in
breach of covenant in using
the premises for
residential purposes.
(3) That the fact that the plaintiffs knew that the
defendant was using the premises to sleep in and
were prepared to allow that did not amount to a
release by them of the covenant contained in the
lease.
(4) That, the defendant having signed the lease
because of the promise of the plaintiffs' agent, was
entitled to rely on that promise so long as he was in
occupation of the shop and the action would be
dismissed.
(City and Westminster Properties (1934) Ltd.
v.
Mudd. (1958) 3 W.L.R. 312).
(a)
Rankers should advise on all financial matters and
they must advise with reasonable care and skill, or they
will be liable for negligence.
(b)
Solicitors should not merely disclose all relevant
documents which a client has in his possession in an
affidavit of documents ; but they should also carefully go
through the documents to make sure that no relevant
documents have been omitted.
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