The Gazette 1973

UNREPORTED IRISH CASES

stopped using it after December 1968, and the truck has lain on the side of the road unused for 3 years. Up to then, the 17 hire-purchase instalments had been paid, but, after that, the payments ceased. The de- fendants accordingly counter-claimed for the remaining 19 instalments for.£1,125 odd. The defendants con- tended that, in December 1968, the truck had travelled more than 50,000 miles. An engineer for the plaintiff examined the truck in May 1969, and stated that it would have been worth £1,200, but was only now worth £500 owing to the bad state of repair. There was evidence that the truck, which was supposed to carry 7 tons, was continually overloaded to the extent of 10 or 11 tons, and this was essentially the cause of the brake and axle trouble. It was continually over- loaded in Whiddy Island for 3 months from May 1968, and was not properly kept in good order and repair. The crack was probably due to the manner in which the body was fitted rather than to any defect in the chassis. Accordingly, at the time of delivery, the cab and chassis were of merchantable quality, and reason- ably fit for the purpose required. Therefore the action must be dismissed as there was no breach of any of the implied warranties. The defendants are entitled to judgment for £1,125 on the counterclaim. [Maybury v. Mercantile Credit (Hire-Purchase) Ltd.; Pringle J.; unreported; 20 December 1971.] Custody of Young Children awarded to Mother. The defendant husband and the plaintiff wife were married in July 1966, and had 3 children—two daugh- ters and a son—born between 1967 and 1969. The couple lived unhappily in Cobh, and the marriage finally broke up in April 1970, when the husband left the wife, and gave the three children to his married sister to look after. The wife agreed that the husband should have custody of the three children, the married sister kept them until September 1971, when they were transferred to the custody of the husband's parents until April 1972. Meantime the husband lived with another woman and took the children into his own custody. The wife had meanwhile been awarded £6 per week for maintenance. She took a university degree in Cork and can shortly become a teacher; she proposes to live with her parents in Cobh. The other woman is deemed suitable by the Court to have custody, despite the birth of a natural child in 1971. The wife is deemed emotional and hysterical. The intellectual welfare of the children is on the side of the husband, as Dublin schools would tend to be better; the same applies to the physical welfare of the children, for the children now have their roots in the husband's household. However the moral factor is entirely in favour of the wife, and following the Supreme Court decision in Walsh v. Walsh it would not be suitable for these children to be living with a woman, who was not the husband's lawful wife. This moral factor outweighs the other advantages, and accordingly the custody of all the children was granted to the wife residing in Cobh. Additioned Maintenance of £3 per week net is awarded to each child, the husband can have access to the children once a week. This order is subject to any change in circumstances that may occur. 234

Application for Summary Judgment granted. The plaintiffs applied for summary judgment for their £40,000 odd, this is in respect of a cheque for £37,000 issued by defendants on 28 February 1972 plus interest. The defendants seek to avoid judgment, because the Receiver, appointed on 17 November 1972, had caused a search to be made in defendant's books, which are all in his possession, and can find no mention of a meeting held on 28 February 1972, nor of any resolution passed by the directors authorising the borrowing of £37,500 from the bank. In January 1972, a customer of the plaintiff Bank, Mr. Nolan, requested a loan of £37,500 from the Bank for the purpose of acquiring Ardmore Film Studios, Bray. The Bank's agent agreed to issue a cheque for £37,500 to defen- dant's solicitors, on the understanding that the plaintiff company would open its account at plaintiff's Bank and take over the overdraft. On 28 February 1972 a certified copy of a resolution sanctioning an overdraft at the Bank's discretion was presented to the Bank Manager, as well as copies of the memorandum and articles of association of the new defendant company, which had been formed. The bank manager then issued the cheque for £37,500 to defendant company. Broadly the particulars were true save that John Houston had been added as a director. The defendants contended that the principle of law applicable is that a firm dealing bona fide with a limited liability company is not required to inquire into irregularities in the internal management of the company. Finlay J. is satisfied that on 28 February 1972, the two directors were entitled to hold a valid meeting, and that the resolution passed at that meeting was valid. On the strength of Duck v. Tower Galvanising Co. (1901) 2 K.B. 314, the plain- tiffs are entitled to summary judgment. Allied Irish Banks Ltd. v. Ardmore Studios Inter- national (1972) Ltd.; Finlay J .; unreported; 30 May 1973.] No breach of warranties under Hire-Purchase Acts— Plaintiff responsible for overloading truck. The plaintiff, a haulage contractor in Co. Cork, claims damages against the defendants for breach of conditions contained in S. 9 (1) (d) and 9 (2) of the Hire Purchase Act 1946. The hire-purchase agreement was signed on 4 August 1967 for the hire-purchase of a new Bedford 7 Ton cab and chassis for £2,390, allow- ing £560 for a "Trade-in" of an Austin Fiat and chassis. The plaintiff claims that the Bedford Cab was not of Merchantable quality, and not fitt for the pur- pose required, i.e., road haulage. There is no doubt that the purpose for which this cab was required was made known to the owners of the garage where it was purchased. The plaintiff intended himself to have a body fitted on to the chassis, and the old body on the Austin chassis was in fact fitted in. The plaintiff alleges he had plenty of brake trouble from January to March 1968. In April the truck broke down in Tivoli with a bearing gone in the back axle which involved subs- tantial work by a garage. Various other repairs in connection with the brakes and axle were carried out in June and July, and in September a new gear box was fitted; in November more repairs were carried out, but the plaintiff was so dissatisfied with the truck that he