The Gazette 1972

the contract was not completed until the end of Septem- ber 1969. The defendants have completely failed to sub- stantiate any damages for delay. The only damages to which defendants are entitled on their counterclaim is the sum of £213 for alleged defects in workmanship and materials. [Hugh O'Neill & Co. v Roche; Pringle J.; unre- ported; 19th January 1972.] Contract: Claim for fundamental breach of contract rejected. The plaintiff, a bank official who retired in 1965, wished to go into business in 1967, and establish a dry cleaning business in Loughrea. Before doing so, one of the managers of the defendants came to see the plaintiff at his request, and discussed payments : he mentioned a dry cleaning machine called a Monarch Princess. The plaintiff, who had no previous experience of this busi- ness, went to Dublin to inspect the machines. He finally signed an order form in May 1967 which related to four Frigidaise washers, two dryers and dry cleaning with one roller and one pump, therein called "the equipment". The price of the equipment was £4,213, and he paid a deposit of £857.60. The plaintiff signed the order subject to the company's general conditions, including one as to a guarantee by the company. In the guarantee, the company undertook during the period of 90 days from handing over the keys to the customer to repair or replace free of charge, provided three days notice of defects was given, and no repairs were made without the consent of the company. Consequently the company was not to be liable to the customer for any consequential loss or damage resulting from faulty equipment. The machines were duly delivered in Lough- rea on 8th September 1967. Their installation was supervised by company officials, and business com- menced on September 15th. The plaintiff signed a hire purchase agreement with a hire purchase company, by which a sum of £3,870 was to be repayable in 36 monthly instalments of £107.50. The dry cleaning machine developed an electrical fault on September 25th which was duly repaired by the company. On September 28th a fault developed in the valve qf the machine which was duly repaired; this defect was again remedied on October 16th and 30th. By this time the plaintiff was convinced the machine was unsatisfactory. The plaintiff's solicitor wrote to the company on November 1st pointing out that the machine was defec- tive, and asking him to remove the machine, refund him the entire purchase price, and reimburse him for losses. Undoubtedly the clothes put through the dry clean- ing machine had a very strong smell which made them unwearable, but this is not mentioned in the solicitor's letter. In January 1968 a mechanical engineer examined the machine, and found various defects. He thought that the corrosion would be progressive, but did not mention the smell which apparently became noticeable in mid-November, and was only communicated to the company in January; this undoubtedly damaged the plaintiff's business reputation. In endeavouring to secure maximum profit he did not use sufficient washing niaterials. The smell was thus not caused by any funda- mental defect in the machine. On 12th March 1968 the company decided that plaintiff's dry cleaning machine was unsatisfactory, and they delivered a new machine to him on April 25th.

Nevertheless the plaintiff sued for damages for breach of contract for failure to repair on foot of the guarantee. The Judge would not consider the point that a funda- mental breach of contract had been committed becuase it was not pleaded. As the door of the dry cleaning machine leaked for a while, damages were assessed at £25. [Counihan v Automations International (U.K.) Ltd.; Kenny J.; unreported; 5th December 1970.] Guardianship of two boys awarded to Father. The husband, a member of the Plymouth Brethren, went to Canada in 1957 and worked in television with the Canadian Broadcasting Corporation. He married the wife in 1958, and they continued to live in Canada, mostly in Toronto, until 1971. Although the first son was born in 1960, and the second son in 1963, the marriage was not a happy one. There were constant arguments about money, as he was easy-going and she was very competent. The wife gradu- ally felt lonely and neglected, and her affection gradu- ally turned into irritation and contempt. In a word—he was inconsiderate and she was impatient. The wife finally left him in 1971 and went to stay in separate lodgings. All attempts at reconciliation failed, and the boys stayed with the father. In July 1971 the husband and the boys returned to Dublin, and since then the husband has been working as a freelance editor of films for television, earning £200 per month. The husband is now forty years and the wife forty-six years of age. The husband tried to induce his wife in vain to join him in Ireland which she had visited several times. The husband had now bought a home in Ballinteer, and is repaying a mortgage with money advanced by his rich parents, who live near him; he also has a resident housekeeper, and the boys are attending St. Andrew's College in Dublin. The wife meanwhile had brought divorce proceedings in the Supreme Court of Ontario, and was awarded interim alimony of $175 per month. The wife, in applying to this Court for custody of the children alleges her husband is not a suitable per- son to have them. The wife hopes to return to England and train as a teacher; she had previously been a telephone operator. A Canadian psychiatrist, Dr. David- son, was consulted by the wife, and came to Dublin at his expense to give evidence. Although Dr. Davidson had never had an interview with the husband, he alleged in Court that, from the particulars supplied to him by the wife, he considered the husband to be a psychopath and to have paranoid tendencies. The hus- band consulted a well-known Dublin psychiatrist who could find no evidence of personality disorder. Furthermore the Judge thought that, in tendering evidence, the husband gave no indication of abnormal outlook or behaviour. It was alleged that the letters written by the hus- band's parents to him in Canada proved that he was an unsuitable person. The Judge found, however, that these letters were based entirely on what the wife had written to them, and did not prove any such thing. In considering the matter of welfare, the Judge thought that the intellectual, physical and social wel- fare of the two boys of 12 and 9 would be best served if they were to remain with their father in Ireland. The wife's application for custody of the children was con- sequently rejected. [Waters v Waters; Kenny J.; unreported; 27th April 1972.]