The Gazette 1979

JULY-AUGUST

1979

GAZETTE

banking Manager of Intercontinental learned in April 1976 that the Plaintiff was claiming that he had a contract to buy Park House and lands from the owners at £110,000 but that nothing was being done to complete the sale. Intercontinental were concerned about their security and the banking manager decided to find out if the Plaintiff was still ready to pay £110,000 and if he was he decided to sell the lands to him under the powers in their mortgage and power of attorney. Subsequent correspondence showed conclusively that the Manager of the Northern Bank was authorised by Intercontinental to offer the lands to the Plaintiff at £110,000 and when the Plaintiff called to the Northern Bank on the 18 May 1976 and told the Manager that he, the Plaintiff, still wanted to buy the lands at this price the the Manager of the Northern Bank dictated a letter addressed to the Manager of Inter- continental which read: "I hereby accept the offer to purchase the property known as Park House and lands at Mallow, Co. Cork con- taining 120 acres, 1 rood, 30.7 perches for a consideration of £110,000," and the Plaintiff then signed this letter and his signature was witnessed by the Manager of the Northern Bank who subsequently telephoned the banking Manager of Intercontinental and read him this letter of the 18 May. The banking Manager of Intercontinental ex pressed his approval of what the Manager of the Northern Bank nad done and of this letter. Inter- continental then instructed their own solicitors to prepare a contract for sale of the property and on 8 June 1976 those solicitors wrote to the Plaintiff's solicitor and the first two paragraphs of their letter read as follows: "We are instructed by our clients (Intercontinental) that they have accepted an offer of £110,000 from your client, Patrick Casey Our clients are selling as mortgagees pu r s uant to the powers on that behalf contained in an Indenture of Mortgage dated 14 November 1975 and a power of attorney dated 11 February 1975." While Intercontinental's solicitors were treating the Plaintiff's letter of 18 May 1976 as an offer and not as an acceptance of an offer (as it was) it established the existence of a con- tractual relationship between the

to £ 11,000 and the Plaintiff accepted this offer whereupon the Plaintiff drew a cheque for £11,000 payable to the auctioneer» and gave it to them and the auctioneers had the words: "Deposit on Park House, Mallow, subject to contract and title", typed on the back of it and the Plaintiff and Mr. O'Sullivan of the auctioneers signed their names underneath. The solicitors acting for the Northern Bank and Intercontinental never sent the contract to the Plaintiff's solicitor and when another prospective purchaser offered £190,000 for the property those defendants refused to complete. The High Court (per Costello J.) had held that a valid contract existed between the Plaintiff and the owners and had ordered specific performance of it. The Defendants appealed to the Supreme Court. Held (per Kenny J.) that: (1) the trial Judge was correct in his conclusion that the con- versations on Friday, 30 January 1976, and on Saturday, 31 January 1976, constituted a contract by the Plaintiff to buy and by the owners to sell the property to the Plaintiff for £110,000. The words "subject to contract and title" were not introduced into the transaction until 2 February 1976 when an oral contract for the sale had al- ready been made. The Court referred to the case of Law v. Robert Roberts A Co. i 19641 I K. 292, on this point. (2) In principle, when the party to be charged has written or dictated a document on or on to paper which has his name printed on it he should be regarded as having adopted a printed name as his signature and so should be regarded as having signed the document. The Court referred to a passage in Wylie's Irish Conveyancing Law (1978 Ed.), at page 354, and to the English case of Tourret v. Cripps (1879) 48 L J . Ch. 567, and the Irish case of Dyas v. Stqfford(1%%2) 9 L.R. Ir. 520. The Court held that the document of 2 February 1976 was a sufficient note or memorandum signed by the party to be charged which complied with the Irish Statute of Frauds (7 William HI, C. 12, S. 2). With reference to the Northern Bank and Intercontinental and their confirmation of the contract between the Plaintiff and the owners, the

Plaintiff and Intercontinental. The contract was subsequently signed by the Plaintiff but was not completed by Intercontinental after they were informed of the subsequent offer of £190,000. Intercontinental felt that they were bound to sell at the best price available and that £110,000 had ceased to be that. Held further (per Kenny J.) that: (3) Intercontinental were in error in thinking this as on 18 May 1976 it was the best price and on that date they made an offer to the Plaintiff to sell at that price and he accepted it. A mortgagee who enters into a con- tract for a sale at a price which all the circumstances and valuations show, is, at the date of the contract, the best price available is not discharged if a higher price is offered after the contract is made. (4) That the High Court Judge was correct in holding that a valid oral contract for the sale of lands at £110,000 was made in May 1976 between the Plaintiff and Intercontinental. The Order of the High Court which decreed specific performance of the contract between the Plaintiff and the owners and, while finding that a valid contract was made between the Plaintiff and Intercontinental, did not make an order for specific performance of it "at present", was the correct order to make, as there cannot be two orders for specific performance against two defendants. Patrick Casey v. Irish Inter- continental Bank Limited, The No r t he rn Bank Limited, Paul O'Connell and Conleth Dunne, Supreme Court (per Kenny J., with Henchy and Parke JJ.) - 13 February 1979 — unreported.

Summaries of judgments prepared by John F. Buckley, Mary Finlay, Colum Gavan Duffy, Peter Quinlan and edited by Michael V. O'Mahony.