Commercial appeal concerning whether an agreement of purchase and sale was subject to an oral condition precedent requiring a release from an earlier deal.
The court held the memorandum and viva voce evidence relied on by the trial judge were incapable of supporting a finding that both parties agreed to the alleged condition.
The respondent’s alternative mutual mistake argument also failed for want of evidence.
The appeal was allowed, the dismissal of the action was set aside, and judgment was granted to the appellant with a new trial limited to damages.
