seal (i). The interest and expenses are recoverable from the vendor only as damages upon a special count, charging his neglect or refusal to perform the agreement on his part (k). Ar action upon the case for deceit is the proper remedy, where the contract is complete or executed, and the defendant induced the plaintiff to enter into it by means of fraudulent misrepresertations (1). And that remedy is open to the plaintiff, although sach representations were not introduced into or embodied in the written agreement signed by the parties (m). It seems to have been considered, that where the vendor of an estate is (without fraud on his part) incompetent to make out a title, the purchaser is not entitled to recover damages for the loss of the bargain, beyond the monies he has paid, with interest, and expenses; although it appear that a considerable profit might have been derived by him from the completion of the purchase (n). And where an auctioneer, who had advanced some money on an estate, sold it by auction after the authority from his principal had expired; it was decided in a special action of assumpsit against him by the purchaser, that he was not liable to damages for the loss of the bargain, although the estate was worth nearly double the price which he agreed to pay (o). But in Hopkins v. Graysbrook, (p), where a person who had contracted for the purchase of an estate, but had not obtained a conveyance of it, sold it by auction, with a stipulation to make a good title by a day named, but which he was unable to do, as his vendor refused to convey; it was held, that the purchaser by auction might, beyond his expenses, (i) Greville v. De Costa, Peak Add. C. 113. But where there has been a partial execution of the contract, and a partial benefit derived, the contract cannot, it seems, be rescinded, so as to enable the party to recover upon the common count for money had and received; Hunt v. Silk, 5 East, 449; Beed v. Blandford, 2 Y. & J. 278. See further as to this, Inder-Money had and received - Rescinding contract. (k) Camfield v. Gilbert, 4 Esp. R. 221; Sugd. 8th edit. 223, 224, 225; 1 Chitty Pl. 5th ed. 115; 2 id., 287, and notes. Interest not recoverable on count for money had and received; Bradshaw v. Bennett, 5 C. & P. 48. (1) See Bree v. Holbeck, Dougl. 654; Price v. Neal, 3 Burr. 1354; Jones v. Ryde, 5 Taunt. 488, 493. (m) Dobell v. Stevens, 3 B. & C. 623; 5 D. & R. 490, S. C. See ante, 91. In case against the vendor of a public house for fraudulent misrepresentations as to the extent of the business, evidence of the actual value of the premises is admissible in reduction of damages, but not as a bar to the action; Pearson v. Wheeler, 1 R. & M. 303. (n) Flureau v. Thornhill, 2 Bla. R. 1078; Sugd. 8th ed. 221, 222, 223. (0) Bratt v. Ellis, and Jones v. Dyke, Sugd. 222; id., Appendix, Nos. 7 & 8. (p) Hopkins v. Graysbrook, 6 B. & C. 31; 9 D. & R. 22, S. C. 66 recover damages for the loss which he had sustained by not having the contract carried into effect. Lord Tenderden observed, that upon the present occasion, he could only say, that if it is advanced as a general proposition, that where a vendor cannot make a good title, the purchaser shall recover nothing more than nominal damages, he was by no means prepared to assent to it. If it were necessary to decide the point, he should desire to have time for consideration. But the circumstances of this case showed that it differed very materially from Flureau v. Thornhill (supra). There the vendor was the owner of the estate, and an objection having been made to the title, he offered to convey the estate with such title as he had, or to return the purchase money with interest. Here no such offer was or could be made. The defendant had, unfortunately, put the estate up to auction before he got a conveyance. He should not have taken such a step, without ascertaining that he would be in a situation to offer some title; and having entered into a contract to sell, without the power to confer even the shadow of a title, he must be responsible for the damages sustained by a breach of his contract." Mr. Justice Bayley said, "the case of Flureau v. Thornhill is very different from this; for here the vendor had nothing but an equitable title. Now where a vendor holds out an estate as his own, the purchaser may presume that he has had a satisfactory title; and if he holds out as his own that which is not so, he may very fairly be compelled to pay the loss which the purchaser sustains by not having that for which he contracted." 2ndly. Of Contracts between Landlord and Tenant. 1. TO TAKE, ASSIGN, AND SURRENDER PREMISES. 1. When an Instrument amounts to an immediate demise, or only to an agreement to let in futuro.-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 from the whole of the words used by them in such instrument, is to be considered (q). (q) See R. B. Comyn's, Bingham's, Chamber's, and Woodfall's Treatises on the Law of Landlord and Tenant. See Morgan v. Bissell, 3 Taunt. 63; Doe v. Ashburner, 5 T. R. 163; Per ring v. Brooke, 7 Car. & P. 360; 1 And if the words of the instrument be ambiguous, the acts of the parties, as the taking possession of the premises, &c., may be called in aid to ascertain their intention (r). It is clear that no precise or technical form or language need be observed to create an immediate letting or demise. Nor is it necessary that the demise should be contained in one single instrument, but it may be constituted by a series of letters (s). It may be laid down as a rule that whatever words are sufficient to explain the intent of the parties, that the one should divest himself of the possession, and the other assume it for any determinate time; such words, whether they run in the form of a license, or a covenant, or agreement, are of themselves sufficient, and will, in the construction of the law, amount to a demise (t). Thus a license to A. to enjoy a house (u), or a covenant that "he shall reside therein (x)"; or other terms of similar import, operate as a present demise, there being nothing in the instrument evincing an intention to the contrary. An agreement under seal and on a lease stamp, "to let premises from Michaelmas next to A. upon condition that he should paint, repair, &c.," is an actual demise (y). So is an instrument between A. and B., whereby A. agrees to pay a certain sum per annum, quarterly, for a house, &c., for the term of seven, fourteen, or twenty-one years, at his option, the rent to commence from a named day (~). The words "A. agrees to let, and B. agrees to take," are of themselves words of present demise (a). It is now clearly settled, (though the court in Alderman v. contracts in general. See Adams, Ej. 3rd ed. 113; Woodf. by Harrison, 145, 176. (r) Per Tindal, C. J. Chapman v. Bluck, 5 Scott, 530; 4 Bing. N. C., 187, S. C; ante, 106, note (b); Doe d. Pearson v. Ries, 8 Bing. 181; 1 Moo. & S. 264, S. C.; per Tindal, C. J.; Doe v. Ashburner, 5 T. R. 163, per Ashurst, J. And if a party afterwards distrain for rent, he is estopped from denying that a tenancy existed, although the instrument amount only to an agreement for a future demise; Hancock v. Caffyn, 8 Bing. 358, 365, 366, S68; Chapman v. Bluck, ubi supra. So words which have been erased may be looked at to ascertain the real intention of the parties in so erasing them; Strickland v. Maxwell, 2 C. & M. 539; 4 Tyr. 346, S. C. (s) Chapman v. Bluck, 5 Scott, 531. (t) See Co. Litt. 45 b; Bac. Ab. tit. Leases (K); 2 Bla. C. 318; and per Parke, B. Bicknell v. Hood, 5 M. & W. 108; see also Cattle v. Gamble, 2 Jurist, 922. (u) Y. B. 5 H. 7; Colebourn and Mixstone's Case, 1 Leon. 129; 15 Vin. Ab. 94, pl. 2. See Woodf. by Harrison, 76. (x) Right d. Green v. Proctor, 4 Burr. 2208. (y) Doe d. Colcombe v. Fidler, Peak Addl. Cases, 33. (≈) Wright v. Trevezant, 3 C. & P. 441; Moo. & M. 231, S. C. (a) Doe d. Pearson v. Ries, 8 Bing. 182; 1 Moo. & S. 264, S. C., per Tindal, C. J. Neate (b) expressed an opinion that too wide a construction had been given to instruments of this nature), that an instrument containing words of present demise will operate as a lease or letting, if such appear to have been the paramount intention of the parties; although it contain a stipulation for the execution of a formal lease in futuro (c), or a clause that such future lease shall contain all "usual covenants"(d); such future formal instrument being alluded to rather for the purpose of affording a further or better assurance, security, or protection, than in contemplation of the demise being created thereby (e); though such stipulations in the absence of express words of present demise, tend to show that the instrument was not meant to operate as such (f). Nor will an instrument the less operate as a demise though it be dependent on a condition, if such condition is afterwards performed (g). Thus a memorandum expressing that "A. thereby agreed to let, and B. agreed to take land for sixty-one years, at a certain rent for building, and the latter agreed to lay out 4000l. within four years in building; and when the buildings were finished the landlord agreed to grant a lease; but it was provided that "the agreement should be considered binding till one fully prepared could be produced," amounts to an immediate demise (h). So an instrument by which A. agreed to grant a lease for a certain term upon covenants specified, some of which were inconsistent with a tenancy from year to year, and B. agreed to take a lease upon such terms, "and in (b) Alderman v. Neate, 4 Mee. & W. 720. (c) Warman v. Faithful, 5 B. & Ad. 1042; 3 Nev. & Man. 137, S. C.; Poole v. Bentley, 12 East, 168; Doe d. Pearson v. Ries, 8 Bing. 182; 1 M. & Sc. 264, S. C. As to what amounts to an actual assignment of a lease, or only an agreement to assign, Hartshorne v. Watson, 5 Bing. N. C. 477. (e) Per Lord Abinger, C. B. in Alderman v. Neate, 4 Mee. & W. 721; Harrington v. Wise, Cro. El. 486; Tisdale v. Essex, Hob. 34; Drake v. Munday, Cro. Car. 207; Baxter d. Abrahall v. Brown, 2 Bl. R. 933, and other cases, cited, Woodf. by Harrison, 146, 147. (f) Goodtitle v. Way, 1 T. R. 735; Doe d. Bromfield v. Smith, 6 East, 530; 2 Smith, 570, S. C.; Poole v. Bentley, 12 East, 170; Tempest v. Rawling, 13 East, 18; Doe d. Pearson v. Ries, 8 Bing. 178; 1 Moo. & S. 264, 5 C.; Warman v. Faithful, 5 B. & Ad. 1042; 3 Nev. & Man. 137, S. C. (g) Chapman v. Bluck, 5 Scott, 531. (h) Poole v. Bentley, 12 East, 168. the meantime, and until the lease should be made, to pay the rent, and hold subject to the covenants, and to repair forthwith, with power of re-entry before lease executed, on breach of the stipulations," constitutes a letting upon the terms stated (i). And where by a written instrument K. agreed to let and P. agreed to take a house in its unfinished state for the term of sixty years, being the whole term that K. had the same leased to him, at the rent of 5251. payable quarterly, the first payment to be made for the half quarter at Christmas next, P. to insure and to have the benefit of an insurance lately made, a lease and counterpart to be prepared at P.'s expense, and to contain all the clauses, covenants, and agreements, K. entered into in the lease granted to him; it was held that this was an actual demise, and not a mere agreement for a lease, particularly as P. was put into immediate possession (k). And in Chapman v. Bluck (1), where the plaintiff by letter offered to take a farm of defendant at a certain specified term and rent, the crops to be valued, and a lease to be prepared at the plaintiff's expense, the whole to be subject to a certificate of plaintiff's solvency, and defendant having received the certificate by letter, accepted of plaintiff as tenant on the terms proposed; the valuation was deferred from time to time, but plaintiff on paying 100l. towards the amount was let into possession; it was held that the letters of the plaintiff and defendant (at all events as explained by the above circumstances and some admissions made by plaintiff after a distress), constituted an actual demise, on which defendant was authorised to distrain for rent in arrear, and not to a mere agreement for a lease. And an agreement by which A. agrees to "let" premises to B. "on lease," for a certain term at a certain rent, "subject to the stipulations and covenants in the original lease under which he holds," and "to keep these stipulations in every respect until the lease shall be granted, which lease, when required by B., is to be prepared by A.'s solicitor at B.'s expense," is a lease, and not an agreement for one (m). So a memorandum by which A. agrees to let to B. certain lands mentioned in an annexed abandoned lease from A. to C., (i) Pinero v. Judson, 3 M. & P. 497; 6 Bing. 206, S. C. (k) Doe d. Pearson v. Ries, 8 Bing. 178; 1 Moo. & S. 264, S. C. (1) Chapman v. Bluck, 4 Bing. N. C. 187; 5 Scott, 515; 2 Jurist, 206, (m) Wilson v. Chisholm, 4 C. & P. 474. |