Ker v Crowne
| Jurisdiction | England & Wales |
| Judgment Date | 01 May 1873 |
| Date | 01 May 1873 |
| Court | Exchequer |
Exchquer.
Before FITZGERALD and DOWSE, BB.
The Vestry of St. leonards, Shoreditch, v. HughesENR 17 C. B. N. S. 137.
Greaves v. WilsonENR 25 Beav. 290.
Sansom v. Rhodes 6 Bing. N. S. 261.
Gordon v. LeeENR 3 H. & C. 651.
Turner v. SmithENR 10 Sim. 410.
M'Culloch v. GregoryENR 1 K. & J. 286.
Morley v. CookUNK 2 Ha. 108.
Firth v. ThrushENR 8 B. & C. 387.
Carter v. FlowerENR 16 M. & W. 743.
Gladwell v. TurnerELR L. R. 5 Ex. 59.
Vendor and purchaser — Sale of land — Condition to annul sale on unwillingness to remove objection to title — Notice — Reasonable time — Pleading — Variance.
VOL. VII.] COMMON LAW SERIES. 181 of no negligence in the management of the engine ; but if they Com. Pleas. have omitted to take every precaution in their power to prevent 1873. injury, they are liable, as appears from Vaughan v. The Taff BouauTox Vale Railway Company (1). In the present case it occurs to me, MID. GT. W. that when the Company became aware of the injury being done RAIL. Co. to the Plaintiff's premises, it was their duty to inquire into its cause, and, if possible, to remedy it; and that there was negligence in allowing the water to flow for so long a time after they were made acquainted with the damage caused by it, without taking any steps to prevent the continuance of that damage. On the whole, although Ido not dissent from the judgment of my brethren, I do not adoptit without hesitation, as it seems to me that there was a question of negligence on the part of the Defendants to go to the jury. Conditional order discharged. Attorney for the Plaintiff : J. Matthews. Attorney for the Defendant : W. P. Kirwan. KER v. CROWE (2). Vendor and purchaser-Sale of land-Condition to annul sale on unwillingness to remove objection to title-Notice-Reasonable time-Pleading-Variance. To a count, in an action by purchaser against vendor, for the breach of an agreement for the sale of land, the Defendant pleaded-1st, a traverse ; and, 2ndly, that the agreement was made subject to a condition that, if the purchaser should insist on any objection or requisition which the vendor should be unable or unwilling to remove, the vendor should be at liberty, notwithstanding any negociation or litigation in respect of such objection, or attempt to comply thereÂwith, by notice in writing to annul the sale, and that, in such case, the purÂchaser should be entitled to the return of his deposit without interest, and to no further damages ; averring that the Defendant, being unable to remove certain objections, duly annulled the sale, according to the condition, and repaid the deposit. The agreement for sale proved by the Plaintiff was subject to such condition. Held, 1st. That there was no variance between the contract as declared on and as proved : (1) 511. & N. 679 Ex. Ch. (2) Before FITZGERALD and DOWSE, BB. 182 THE IRISH REPORTS. [I. R. 2ndly. That, under the condition, a notice to annul the sale should be served within a reasonable time : 3rdly. That, upon an issue whether the plea relying upon the condition was true in substance and in fact, the question whether the notice to annul the sale was served within a reasonable time was properly submitted to the jury, and that, in order to raise such a question, a replication was unnecessary. AcrioN by vendee of land against the vendor, to recover auctioneer's fees paid under the contract of sale, and the expenses of investigating title, on the ground that the vendor had. failed to make a good title. The summons and plaint stated that by agreement dated the 25th July, 1871, it was agreed between the Plaintiff and the Defendant that the Plaintiff should purchase from the Defendant a messuage and land at the price of £2100, upon the terms and conditions folÂlowing; that is to say, that the Plaintiff should pay to William Swan, the agent of the Defendant for the said purpose, sale fees or commission upon the sale, amounting to £52 108., and should pay the Defendant a deposit of £210, in part payment of the purchase money, both sums to be paid on. the signing of the said agreement, and the remainder of the purchase money on the 1st November, 1871, in case the Defendant should deduce and make a good title to the premises on or before that day. Averment of perforÂmance of all conditions precedent, and the lapse of all necessary times. Breach, that the Defendant did not deduce or make a good title to the premises on the 1st day of November, 1871, or at all, whereby the Plaintiff lost the said sum of £52 10s. fees or commission paid by him, and the expenses of investigating title, and in otherwise endeavouring on his part to perform the agreement, to the Plaintiff's damage of £200. Pleas-1st. A...
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