The Gazette 1967/71

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