CH. XI. s. 7. Sale of Land (Action by Purchaser against Vendor). At law, time is of the essence of the contract. Rule in equity. Judicature Rule where no time fixed. Damages recoverable against vendor. (c) Time, how far Essence of Contract. When an abstract was to be delivered, or the conveyance was to be executed, on or before a certain specified day, the time fixed was, at law, considered to be of the essence of the contract; and the vendee might rescind the contract, if the vendor was not ready before or on the exact day (y); but in equity the rule is that time is not of the essence of the contract, unless it is made so by direct stipulation or necessary implication (z). Where time was not originally of the essence of the contract, it may, if either party is guilty of improper delay, be made so by a notice by the other, fixing a reasonable period for completion (a). And now, by Judicature Act, 1873, s. 25, sub-s. 7, stipulations in contracts as to time or otherwise, which would not before the passing of that Act, have been deemed to be, or to have become of the essence of such contracts in a Court of Equity, are to receive in all Courts the same construction and effect as they would theretofore have received in equity. Where no time is fixed for completing the contract, the vendor must be ready to do so within a reasonable time (b). But time may be made of the essence of the contract by special notice subsequent to the conclusion of the contract, and where a contract on the 25th August had stipulated for possession at or soon after Michaelmas, and a notice was given on the 13th October that unless a proper abstract was sent within 14 days the purchaser would treat the contract as at an end, and require a return of the deposit and damages, it was held that the period of 14 days was reasonable, and that no proper abstract having been delivered within it, the purchaser might rescind the contract and recover both the deposit and the expenses of investigating the title (c). (d) Damages Recoverable against Vendor. The vendor is, in general, responsible not only for the deposit, but for interest thereon (d); and for interest on moneys purposely kept in hand, and unproductive, in order to pay the remainder of (y) See per Alderson, B., Hanslip v. (z) See Parkin v. Thorold (1852), 16 On the sale of a public-house, as a (a) Per Romilly, M.R., Pegg v. Wisden (1852), 16 Beav. 239; Green v. Sevin (1879), 13 Ch. D. 589; and see Crawford v. Toogood (1879), id. 153. (b) Sansom v. Rhodes (1840), 8 Scott, 544. (e) Compton v. Bagley, [1892] 1 Ch. 313, per Romer, J. (d) At law he is entitled to interest at 51. per cent.; Hodges v. Earl of Litchfield (1835), 1 Scott, 443, 452; Davis v. Canvey (1888), 40 Ch. D. 601. the purchase-money (e); and also for the expenses incurred by CH. XI. s. 7. the purchaser in investigating the title (f). Sale of Land (Action by Purchaser against Vendor). So it has been held, that the purchaser is entitled to recover interest on money borrowed by him, and kept idle to answer the purchase (g). But if such money were borrowed, before Interest on the purchaser had ascertained whether the seller could or borrowed could not complete his contract, the former could not recover money. either the expenses of raising the same, or the loss of interest thereon (h). not, in general, entitled to damages for loss of bargain. So, it is now well decided, that where the vendor of an estate Purchaser is, without fraud on his part, unable to make out a title, the purchaser cannot, in an action for breach of the contract, recover damages for the loss of his bargain; but only the money he has paid, with interest, and expenses (i). And this rule must now be taken to be without exception: Bain v. Fothergill having overruled Hopkins v. Grazebrook (k), and other cases decided on the authority of that case (1), in so far as they engraft exceptions on such rule (m). But the rule of Bain v. Fothergill is based upon the uncertainty Bain v. of making out a good title, and does not apply to the case of a Fothergill. vendor who can make out a good title but will not, or will not do what he can and ought to do in order to obtain one. Therefore, if a vendor of leasehold, assignable subject to the consent of his lessor (as is usual), does not endeavour to obtain that consent, the purchaser will be entitled to damages, although he would not have been so entitled if the vendor had asked for the consent and been refused (n). tioneer liable for interest Although the auctioneer is, in general, liable only for the When aucamount of the deposit, without interest (o); still, if he sell an estate without sufficient authority, this rule does not apply; and and expenses. in such a case he is liable, as principal, to pay to the purchaser his deposit, interest and expenses (p). (e) Flureau v. Thornhill (1766), 2 W. Bl. 1078. (f) See very fully, Hodges v. Earl of Litchfield (1835), 1 Scott, 443; per Cur., Harington v. Hoggart (1830), 1 B. & Ad. 577, at p. 588. (g) Sherry v. Oke (1835), 3 Dowl. 349. (h) Hanslip v. Padwick (1850), 5 Exch. 615. (i) Flureau v. Thornhill (1766), 2 W. Bl. 1078; Bain v. Fothergill (1874), L. R., 7 H. L. 158; and see Royal Bristol Building Society v. Bomash (1887), 35 Ch. D. 390, where vendor having delayed, purchaser was held entitled to damages for loss of a tenant and deterioration of the property. C.C. (k) Hopkins v. Grazebrook (1826), 6 B. & C. 31. (1) See Godwin v. Francis (1870), L. R., 5 C. P. 295. (m) Bain v. Fothergill (1874), L. R., 7 H. L. 158; and see Gaslight and Coke Co. v. Towse (1887), 35 Ch. D. 519; Rowe v. School Board of London (1887), 36 Ch. D. 619. (n) Day v. Singleton, [1899] 2 Ch. 320, C. A. (0) Ante, p. 301 (r). (p) Bratt v. Ellis (1805), and Jones v. Dyke, reported Sugd., V. & P., 14th ed., App. 5, 6; and see Godwin v. Francis (1870), L. R., 5 C. P. 295. 20 CH. XI. s. 7. Sale of Land (Specific Performance -Assign[ment). Action for specific performance. Action to recover deposit, &c. Action for deceit. (e) Action for Specific Performance. [See Fry on Specific Performance, and post, Ch. XXIV.] If the purchaser wishes to obtain from the vendor specific performance of his contract, he must proceed by action for that purpose in the Chancery Division of the High Court of Justice (g); or if the purchase-money do not exceed 500l. he has an option of suing in the County Court (r). The deposit may be recovered in an action for money had and received (s), or by a summons under the Vendor and Purchaser Act, 1874 (t). Where the contract has been executed, and the purchaser was induced by the seller to enter into it by means of fraudulent representations, the purchaser may either bring an action for deceit, or take proceedings in the Chancery Division of the High Court, for relief (u), although the representations complained of were not embodied in the written memorandum of the bargain, or in the assignment executed by the parties (x). And in an action for deceit, the purchaser can recover damages against the seller, which he could not recover against him in an action for breach of the contract of sale (y). Voidable Fleming v. SECT. 8.-Assignment of Contract. The law of assignment of contracts is generally dealt with in Ch. XXVI., post, but reference may be made here to Fleming v. Loe (z). In that case a contract for sale of mining leases and claims was induced by and voidable for misrepresentations by the vendor, who assigned the contract, and the assignee received payments under it by the purchaser, who afterwards avoided it. It was held by Cozens-Hardy, J., in an action by the assignee against both vendor and purchaser which was dismissed, that the purchaser could recover the payments from the assignee by counterclaim (a); but this judgment was reversed on the facts by the Court of Appeal and the House of Lords (a). (2) "Supreme Court of Judicature Act, 1873" (36 & 37 Vict. c. 66), s. 34, sub-s. 3. (r) County Courts Act, 1888 (51 & 52 Vict. c. 43), s. 67. (s) See ante, p. 50. (t) In re Hargreaves v. Thompson (1886), 32 Ch. D. 454, C. A. (u) See Bree v. Holbech (1781), Dougl. 654 a; 36 & 37 Vict. c. 66, s. 34, sub-s. 3. (x) Dobell v. Stevens (1825), 3 B. & C. 623; and as to action of deceit, see Wilson v. Fuller (1843), 3 Q. B. 68, Ex. Ch. (y) See per Lord Chelmsford, Bain v. Fothergill (1874), L. R., 7 H. L. 158, 207, and see n. (i), supra. (2) Fleming v. Loe, [1901] 2 Ch. 594, per Cozens-Hardy, J., explaining Aberaman Ironworks Co. v. Wickens (1868), L. R., 4 Ch. 401, on the ground that the Court had not then jurisdiction to deal with a legal claim for money had and received. (a) Fleming v. Loc, [1902] 2 Ch. 359; Mackusick v. Fleming (1904), 90 L. T. 101, C. A. CHAPTER XII. CONTRACTS BETWEEN LANDLORD AND TENANT. [See Fawcett on Landlord and Tenant, 2nd ed., A. D. 1900; Smith's Lectures, 3rd ed., A.D. 1882; Smith and Soden on Landlord and Tenant, 2nd ed., A. D. 1878; Redman and Lyon on Landlord and Tenant, 5th ed., A.D. 1901; Fou's Law of Landlord and Tenant, 3rd ed., A.D. 1901; and Woodfall's Law of Landlord and Tenant, 17th ed., A.D. 1902.] When an instrument amounts to demise. In order to ascertain whether an instrument amounts to a present demise, or operates merely as an agreement for a future letting of the premises, the intention of the parties, to be collected an immediate from the whole of the words used by them in such instrument, is to be considered (a). And it is said, that if the words of the instrument be ambiguous, the acts done under it may be called in aid as a clue to the intention of the parties (b). The words “A. agrees to let, and B. agrees to take" (which words are frequently used in contracts obviously intended to operate as present demises), may of themselves operate as words of present demise, and so may any instrument by which it appears that one party is to give possession and the other to take it (c). lease must be written. Although, as we shall see presently, a lease for less than three Contract for years may be oral, a contract for a lease for however short a time must, by virtue of the 4th section of the Statute of Frauds (ante, p. 76), be in writing signed by the party to be charged Strafford, (a) Curling v. Mills (1843), 6 M. & G. 173; Gore v. Lloyd (1844), 12 M. & W. 463, 478. (b) Chapman v. Bluck (1838), 5 Scott, 515; per Tindal, C.J., Doe d. Pearson v (c) See Curling v. Mills (1843), 6 Edge v. Landlord and CH. XII. s. 1. thereby; and this rule applies to an executory contract to take lodgings (d) or a furnished flat (e), but not to a contract for board and lodging (f). Tenant (Contract for Lease). Lodgings. Furnished flat. Implied contract for title. "Usual covenants." Lessee taking Rule under V. and P. Notice to under-lessee Where a person contracts to grant a lease, there is an implied agreement that he has a good title or right to grant such lease (g). Thus, where A. agreed to grant a lease to B., in consideration of a sum of money, part of which was paid by B. at the time of making the agreement; and it afterwards appeared that A. had not power to grant the lease in question; it was held that B. might rescind the contract, and recover back the money so paid (h). A contract for "usual covenants" appears to carry covenants for rent, taxes, and repair (but not against alienation) on the part of the lessee, and the qualified covenant for quiet enjoyment (see p. 311, infra) on the part of the lessor (i). Nor does the fact of the intended lessee taking possession of the premises, with the knowledge and consent of the lessor, operate per se as a waiver by the former, of an objection to the lessor's title, although it is primâ facie evidence of his acceptance thereof (k). But the intended lessee is not entitled, unless there be a stipulation in the contract to that effect, to call for the title to the freehold (), or if the intended lessor be himself a leaseholder, to the leasehold reversion (m). And upon an agreement to grant an underlease, the intended lessee, if he has had a fair opportunity of ascertaining the prooriginal lease. visions of the original lease, is held to have constructive notice of of terms of Stamp. those provisions (n). The stamp is the same as on a lease at the same rent (ante, p. 118). When lease must be by deed under Real Property Act, 1845. SECT. 2.-The Lease. The first section of the Statute of Frauds provides that all leases of any messuages, manors, lands, tenements, or hereditaments, not put in writing, and signed by the parties so making (d) Edgev. Strafford (1831), 1 C. & J. 391. (e) Thursby v. Eccles (1900), 70 L. J., Q. B. 913, per Bigham, J., holding also that part payment of rent, without taking possession, was not such payment of rent as to take the case out of the statute. (f) Wright v. Stavert (1860), 29 L. J., Q. B. 161. (g) Stranks v. St. John (1867), L. R., 2 C. P. 376. (h) Roper v. Coombes (1827), 6 B. & C. 534. (i) Hampshire v. Wickens (1878), 7 Ch. D., at p. 761, and p. 323, infra, per Jessel, M.R. (k) Hyde v. Warden (1877), 3 Ex. D. 72, C. A. (1) V. and P. Act, 1874, 37 & 38 Vict. c. 78, s. 2, sub-s. 1. (m) Conv. Act, 1881, 44 & 45 Vict. c. 41, s. 13. (n) Hyde v. Warden (1877), 3 Ex. D. 72, C. A. |