and the deficiency (*if any) occasioned by such second sale, together with all expenses attending the same, shall, immediately after the same sale, be made good to the vendor by the defaulter at this present sale: and in case of the non-payment of the same, the whole thereof shall be recoverable by the vendor, as and for liquidated damages (d), and it shall not be necessary to previously tender a conveyance to the purchaser. Lastly, That if any mistake be made in the description of the premises, or any other error whatever shall appear in the particulars of the estate, such mistake or error shall not annul the sale, but a compensation or equivalent shall be given or taken, as the case may require (e). Such compensation or equivalent to be settled by two referees, or their umpire; each party within ten days after the discovery of the error, and notice thereof given to the other party, to appoint one referee by writing; and in case either party shall neglect or refuse to nominate a referee within the time appointed, the referee of the other party alone may make a final decision. If two referces are appointed, they are to nominate an umpire before they enter upon business, and the decision of such referees or umpire (as the case may be) shall be final. Condition to be inserted where the Title-deeds cannot be delivered up (ƒ) That as the title-deeds which concern this estate relate to other estates of greater value, the vendor shall retain the same in his custody, and enter into the usual covenants (to be prepared by his solicitor, and at his expense) for the production of them to the respective purchasers: but all attested copies which may be required of such deeds shall be had and made at the expense of the person requiring the same. Where an Estate is intended to be sold in Lots, and the Title-deeds are to be delivered up, the following Condition may be inserted: That as the aforesaid lots are holden under the same title, the purchaser of the greater part in value of the said estate shall have the custody of the title-deeds, upon his entering into the usual covenants for the production thereof to the purchaser or purchasers of the remaining or other lots: If the largest portion in value of the estate shall remain unsold, the seller shall be entitled to retain the deeds upon entering into such covenants as aforesaid; all such covenants to be prepared by and at the expense of the person or persons requiring the same; who may have attested copies of such deeds at his, her or their own expense. Or this: That the title-deeds shall be retained by the vendor, until all the estates now offered for sale shall be sold, when they shall be delivered over to the largest purchaser, upon his entering into the usual covenants for the production thereof to the other purchasers; such covenants to be prepared by and at the expense of the person or persons requiring the same. Whilst the deeds remain in the seller's hands, he shall produce them to the several purchasers when required, and every purcha (d) Vide supra, p. 40. (e) Vide supra, p. 29. (f) Vide supra, p. 38. ser may at any time have attested copies of the deeds at his own expense. *Where the Property is considerable, it may be advisable to make a stipulation as to the expense of the attested copies, according to the value of the lots. As, for instance: That all attested copies of the title-deeds shall be made and delivered at the expense of the person requiring the same, unless his or her purchase-money exceeds . . . 7. but does not amount to 7.; in which case the vendor shall furnish the attested copies of all such deeds and writings as shall be deemed necessary, according to professional usage, at the joint expense of him and the purchaser: and if the purchasemoney exceeds.... 7. the vendor shall furnish the same at his own ex pense. No. II. Agreements to be signed by the vendor and purchaser after It seems advisable to have two sets of Conditions, at the end of one of which may be printed an Agreement for the Auctioneer, or Agent of the Vendor, to sign; and at the end of the other may be printed an Agreement for the Purchaser to sign. The Agreement to be signed by the Auctioneer, or Agent of the Vendor, may be thus: I do hereby acknowledge, that purchaser of lot has been this day declared the of the estates mentioned in the above-written particulars, at the sum of....l.; and that he has paid into my hands ... . l. as a deposit, and in part payment of the said purchase-money; and I do hereby agree, that the vendor shall, in all respects, fulfil on his part the above-written conditions of sale. As witness my hand, this day of Purchase-moncy Deposit-money £. The Purchaser may sign the following Agreement: I do hereby acknowledge, that I have this day purchased by public auction, lot of the estates mentioned in the above-written particulars, for the sum of . . . . Z.; and have paid into the hands of the sum of.... 7. as a deposit, and in part payment of the said pur (g) Vide supra, p. 43. chase-money; and I do hereby agree to pay the remaining sum of at on or before the and 7. unto day of in all other respects, on my *part to fulfil the above-written conditions of sale. As witness my hand, this Purchase-money day of Deposit-money Remainder unpaid - . £. Witness, No. III. Agreement for sale of an estate by private Contract (h). day of between A, of, &c. for himself, his heirs, executors, and administrators, of the one part, and B, of, &c. for himself, his heirs, executors, and administrators, of the other part, as follows: viz. The said A doth hereby agree with the said B to sell to him the messuages, &c. (parcels) with their appurtenances, at or for the price or sum of . . . . l.; and that he the said A will within one month from the date hereof, at his own expense, make and deliver unto the said B, or his solicitor, an abstract of the title of him the said A to the said messuages and premises; and will also, at his own expense, deduce a clear title thereto. And also that the said A, or his heirs, and all other necessary parties, shall and will, on or before the day of next, on receiving of and from the said B, his executors or administrators, the said sum of . . . . l. at the cost and charges of him the said B, his heirs, executors, administrators or assigns, execute a proper conveyance, for conveying and assuring the fee-simple and inheritance of and in all the said messuages and premises, with their appurtenances, unto the said B, his heirs or assigns, free from all incumbrances. And the said B hereby agrees with the said A, that he the said B, his heirs, executors, administrators or assigns, shall and will, on the execution of such conveyance as aforesaid, pay the sum of . . . . 7. unto the said A, his executors or administrators. And it is hereby further agreed by and between the said A and B, as follows: viz. That the conveyance shall be prepared by and at the expense of the said B, and that the same shall be settled and approved of on the parts of the said A and B by their respective counsel; and that each of them, the said A and B, shall pay the fees of his own counsel. And that all rates, taxes and outgoings, payable for or in respect of the premises to the day of shall be paid and discharged by the said A, his executors or administrators. (h) Vide supra, p. 52. And lastly, that if the said A shall not deliver an abstract of his title to the said B, or his solicitor, before the expiration of one calendar month from the date hereof, or shall not deduce a good and marketable title to the *said messuages and premises, before the said day of then and in either of the said cases, immediately after the expiration of the said one calendar month, or the said day of (as the case may be), this present agreement shall be utterly void to all intents and purposes whatsoever, and the jurisdiction of equity wholly barred: it being the true intent and meaning of the parties hereto, that in the event aforesaid execution of this agreement shall not be enforced by any court of equity, notwithstanding any rule (if such there be) that time cannot be made the essence of a contract, or any other rule or maxim whatsoever (i). In witness, &c. A provision may also be inserted in agreements, making time the essence of the contract, in case the purchase-money is not paid at the day appointed; but clauses making agreements void if a title is not made, or the purchase-money paid by a stated time, should never be inserted unless it be the express intention of the parties. Where time is not deemed material, clauses to the following effect should be inserted: That the said B and his heirs shall have, receive nad take the rents and profits of the said messuages and premises, from the next, for his and their proper use. day of day of And that if the said conveyance shall not be executed by the necessary parties, and the said purchase-money paid on or before the said then and in such case the said B, his heirs, executors, or administrators, shall from the same pay interest for the said purchase-money unto the said A, his executors or administrators, after the rate of day of per cent. per ann. No. IV. Bratt v. Ellis (k), C. B. Mich. and Hil. Terms, 45 Geo. III. John Goodwin being indebted to Ellis, the defendant, an auctioneer, deposited the title-deeds of some houses with him, as a security; and gave him a written authority to sell them by auction, at any time before Midsummer 1803. They were accordingly put up at Garraway's; and not fetching the sum expected, they were bought in by Goodwin. Ellis not being paid, put up the houses again in September 1804, under the usual conditions. The plaintiff was declared the highest bidder at 3157.; paid a deposit of 757. and signed an agreement to complete the contract. The defendant delivered possession to the plaintiff, who expended about 107. in repairs; and the defendant sent the deeds to the plaintiff's attorney, who approved of the title, and prepared a conveyance; and the defendant undertook to procure Goodwin to attend and execute the deed. Goodwin, however, upon being applied to, refused to complete the contract, which was made without his authority. The plaintiff brought the present action to recover the deposit-money and (k) Vide supra, p. 45. (i) Vide supra, p. 302. interest, and the expense of perusing the abstract, preparing the conveyance, &c.; and the damages the plaintiff had sustained by losing such a good bargain. The plaintiff gave 3157. for the houses, and a surveyor, examined on his behalf, proved that they were worth 7511. The defendant *suffered judgment to go by default. Upon the execution of the writ of inquiry of damages, the defendant's counsel admitted, that he was liable to repay the deposit, with interest, and fair expenses incurred in investigating the title, &c. But as it appeared by the declaration that the defendant was only an auctioneer, and Goodwin was the owner, he insisted that the defendant was not answerable for the difference of value. The sheriff, in his charge to the jury (which was specially summoned), said, it was admitted on all hands, that the deposit and interest, and expenses, must be paid to the plaintiff. With respect to the demand for the loss of the bargain, he thought that the demand was recoverable; for the defendant had admitted that he had sold the property without authority; but the amount of the damages was in their discretion. They would consider whether it would have sold for 7517. If they believe the surveyor, it would be quite competent to give the whole, or what they pleased. The jury returned a verdict for 3507., being upwards of 2501. as damages for loss of the bargain. The Court of Common Pleas, however, granted a rule to show cause why the writ of inquiry should not be set aside, and the defendant let in to plead in the action, upon paying into Court the deposit money, and interest, and on payment by the defendant to the plaintiff of his costs occasioned thereby, together with his costs of the present application. Upon showing cause, the Court made the rule absolute; on payment to the plaintiff of the deposit, with interest, the costs of investigating the title, and the costs of the action, as between attorney and client. No. V. Jones v. Dyke and others (1). Hereford Summer Assizes, The circumstances of the case were shortly these. Some estates in Wales having been advertised for sale, the plaintiff came to town, and after some treaty with the defendants, who were the auctioneers employed, he agreed to purchase the estate in question, at 9751.; and it was agreed that he was to pay the deposit in nine days, and to give his note for it at that date, which he accordingly did. Tuchin, one of the defendants, by the desire of his partner Dyke, gave the plaintiff a receipt for the deposit, and signed a printed particular, which together amounted to an agreement in writing. In a few hours after this trans action, Dyke and Tuchin called on a friend of the plaintiff's to acquaint him that they had just received a letter from Wales, stating that the estates were sold for more money, and requesting the particular and receipt to be returned; and the plaintiff refusing to relinquish the (1) Vide supra, p. 45. |