Condition

for reference to

The condition as to compensation frequently provides that any dispute which may arise under the contract shall arbitration. be referred to arbitration. A breach of such a stipulation is a good cause of action (k).

Conditions

and war

ranty of goods.

Contracts for the sale of goods are often made upon conas to return dition that in case of breach of warranty the buyer may rescind the contract, return the goods and recover the price paid (1). If the condition limits the time for returning the goods, the buyer is not bound to abstain from taking them away, or to return them immediately, after receiving notice of a defect in them; and if, without his default, an accident happens to them within the limited time, the loss will not fall upon him (m). A condition limiting the duration of a warranty covers defects unknown to the vendor which are only discovered by the purchaser after the expiration of the time for which the warranty was given (n).

Usual condition;

6. Conditions relating to forfeiture of the deposit and a resale of the property.

The conditions generally conclude with a provision for the deposit being forfeited, and the property being resold, in case of the purchaser failing to comply with the conditions, and for the costs of the resale, and any deficiency in price consequent upon it, being borne by the purchaser (0).

(k) Livingston v. Ralli, 5 E. & B. 132; 3 C. L. R. 1096; 24 L. J. Q. B. 269; 1 Jur. N. S. 594.

(1) Leake, 672.

(m) Head v. Tattersall, L. R. 7 Ex. 7; 41 L. J. Ex. 4.

(n) Smart v. Hyde, 8 M. & W. 723; 1 Dowl. N. S. 60; Chapman v. Gwyther, L. R. 1 Q. B. 463; 35 L. J. Q. B. 142.

(0) See Essex v. Daniell, L. R. 10 C. P. 538; 32 L. T. N. S. 476; Thomas v. Brown, 1 Q. B. D. 715; 45 L. J. Q. B. 811; Cooper v. L. B. & S. C. Ry. Co. 4 Ex. D. 88; 48 L. J. Q. B. 434; Want v. Stallibrass, L. R. 8 Ex. 175; 42 L. J. Q. B. 108; Best v. Hamand, 12 Ch. D. 1; 48 L. J. Ch. 503.

Under such a condition, if the purchaser makes default, and its effect; the vendor resells the property, the vendor can only recover, in addition to the deposit, so much of the difference between the two prices and of the expenses of the resale as is not satisfied by the deposit (p). If upon resale the estate produces more than the original purchase-money, the defaulting purchaser cannot call for an account of the surplus (q).

If a purchaser becomes bankrupt, his trustee may, in where the certain cases, elect whether to complete or abandon the purchaser pur- becomes chase; but he is bound by the condition as to resale as much bankrupt. as was the purchaser himself (r).

tion.

Even in the absence of express stipulation, if the pur- Where no chaser fails to complete, he will forfeit his deposit; and the such condivendor, having a lien on the estate for the purchase-money, will be entitled to have it resold, and will be able to recover the deficiency, if any, from the purchaser, or to prove for it as a debt upon his estate, if he has become bankrupt (s).

interest

If the purchase goes off on account of a defect in the Purchaser's title, the purchaser can recover his deposit with interest from right to the time of payment, and his costs of investigating the and costs. title (f); but his right to interest and costs is generally barred by a special condition.

(p) Ockenden v. Henly, E. B. & E. 485; 27 L. J. Q. B. 361; 4 Jur. N. S. 999. As to goods, see post, p. 200.

(q) Ex parte Hunter, 6 Ves. 94, 97; but see Ex parte Gyde, 1 G. & J. 323.

(r) See post, p. 189, note (z), and the cases cited below; also Moeser v. Wisker, L. R. 6 C. P. 120; cf. Ex parte Barrell, L. R. 10 Ch. 512; 44 L. J. B. 138.

(8) Depree v. Bedborough, 4 Giff. 479; 33 L. J. Ch. 134; Bowles v. Rogers, 6 Ves. 95, note (a); Ex parte Lord Seaforth, 19 Ves. 235; Ex parte Gyde, 1 G. & J. 323; Hope v. Booth, 1 B. & Ad. 498. The vendor cannot exercise his lien against a sub-purchaser for value without

notice; Kettlewell v. Watson, W. N. 1882, 11. As to goods see supra, p. 105; post, pp. 199, 200.

(t) Sykes v. Weld, 7 Jur. N. S. 1280; cf. Pcunsett v. Fuller, 17 C. B. 660;

As to stipu

lated

damages

Sometimes the last condition provides for stipulated damages being paid by either party making default; but for default. the construction of such a clause appears to be attended with some doubt (u); it seems to raise a presumption that a forfeiture of the deposit was not intended (v).

Flureau v. Thornhill, 2 W. Bl. 1078; Kirtland v. Pounsett, 2 Taunt. 145; Clare v. Maynard, 6 A. & E. 519; 1 N. & P. 701; Hopkins v. Grazebrook, 6 B. & C. 31; Walker v. Moore, 10 B. & C. 416.

(u) Randall v. Everest, 2 C. & P. 577; Moo. & M. 41; Crisdee v. Bolton, 3 C. & P. 240; Hinton v. Sparkes, L. R. 3 C. P. 161; 37 L. J. C. P. 81; 17 L. T. N. S. 600.

(v) Palmer v. Temple, 9 A. & E. 508; 1 P. & D. 379.

CHAPTER VI.

THE SALE.

ASSUMING that the auctioneer is properly provided with a licence, is duly authorized to sell, and has satisfactorily arranged the preliminaries, we now come to consider what are his rights, duties and functions with regard to the actual sale.

sale may be

As has been seen (a), an auctioneer is not restricted to on what carrying on business on his own premises, but may conduct premises sales on any premises he chooses. But care should be taken conducted. that the consent of the lessor is obtained, where it is intended to hold the sale in a house the lease of which, as is frequently the case with town houses, contains a covenant that the lessee will not permit a sale by auction upon the premises without the consent of the lessor; for the lessor would probably be able to obtain an injunction against a breach of such covenant, and thereby to prevent the sale from being held (b). Whether, in the absence of such a

(a) Ante, p. 14.

(b) French v. Macale, 2 Dr. & War. 269, 275; cf. Lumley v. Wagner, 1 De G. M. & G. 604; 21 L. J. Ch. 898; Joyce on Injunctions, 63 et seq. Such a covenant was held to be broken, and the lease forfeited, where the lessee gave a bill of sale on his goods, with a power, which the grantee exercised, to sell by auction in default of payment; although, when the auction was actually held, the lessee had mortgaged the house by a sublease and executed a general assignment for the benefit of his creditors; Toleman v. Portbury, L. R. 7 Q. B. 344; 41 L. J. Q. B. 98; 26 L. T. N. S. 292; 20 W. R. 441.

Parol licence to

enter premises.

Goods on

premises of

for sale,

covenant, a landlord who has let a dwelling-house as a dwelling-house can obtain an injunction to restrain the use of the house for the purpose of holding auctions, does not appear to have been decided; but, under a lease of a shop, back shop and cellar, there is not necessarily (i.e. apart from special agreement) inherent in the subject a prohibition against the use of it for the sale of goods occasionally by public auction (c). A parol licence to enter premises for the purpose of selling goods there is revocable; and if a person who has engaged an auctioneer by parol merely to sell goods upon his premises revokes his consent to the auctioneer being there, the latter has no right to continue on the premises, although he has incurred expenses in allotting and selling the goods, and only wishes to remain for the purpose of delivering the goods to the purchasers (d).

If the sale is held on the premises of the auctioneer, auctioneer, goods sent there for the purpose of being sold by auction cannot, while there, be distrained for rent (e), even if the premises consist of a room only hired temporarily for the purpose of the sale and from a person who had no authority to let it (f). This privilege does not, however, extend to goods on premises not in the occupation of the auctioneer;

privileged from dis

tress.

(c) Keith v. Reid, L. R. 2 H. L. Sc. 39. In Moses v. Taylor, 11 W. R. 81, Kindersley, V.-C., is reported to have doubted whether holding a mock auction would be a breach of a covenant not to carry on "any offensive trade." A private house where a sale by auction takes place is " a place of public resort" within the Vagrant Act, 5 Geo. IV. c. 83, s. 4; Sewell v. Taylor, 7 C. B. N. S. 160; 29 L. J. M. C. 50.

(d) Taplin v. Florence, 10 C. B. 744; 20 L. J. C. P. 137; 15 Jur. 402. (e) Adams v. Grane, 1 C. & M. 380; 2 L. J. Ex. 105. As to distress generally see post, Ch. XIV., s. 3.

(f) Brown v. Arundell, 10 C. B. 54; 20 L. J. C. P. 30; Williams v. Holmes, 8 Ex. 861; 22 L. J. Ex. 283; cf. Lyons v. Elliott, 1 Q. B. D. 210, 215; 45 L. J. Q. B. 159. Unless, perhaps, in the latter case, the rightful owner had objected; Brown v. Arundell, ubi supra.