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Munster, 37 Ch. D. 51. By 30 & 31 Vict. c. 48, s. 4, the rule in equity is made the same as at law; see also sects. 5 and 6, infra. It seems that an auctioneer who advertises a sale "without reserve," and without disclosing his principal's name, is liable to an action, if he knock down the lot to the principal's bidding after that of the plaintiff. Warlow v. Harrison, 1 E. & E. 309; 29 L. J., Q. B. 14, Ex. Ch. Where, however, a reference was made by name to the solicitor of the mortgagee by whose direction the sale was represented to be made, the auctioneer was held not to be liable. Mainprice v. Westley, 6 B. & S. 420; 34 L. J., Q. B. 229.

By 30 & 31 Vict. c. 48, s. 5, it is enacted, "that the particulars or conditions of sale by auction of any land shall state whether such land will be sold without reserve, or subject to a reserved price, or whether a right to bid is reserved; if it is stated that such land will be sold without reserve, or to that effect, then it shall not be lawful for the seller to employ any person to bid at such sale, or for the auctioneer to take knowingly any bidding from any such person." By sect. 6, where the sale is declared "to be subject to a right for the seller to bid, it shall be lawful for the seller, or any one person on his behalf, to bid at such auction in such manner as he may think proper." Where the conditions state that the sale is subject to a reserved bidding, this Act renders it illegal for the vendor to employ a person to bid up to the reserved price, unless the right to do so is expressly stipulated for. Gilliat v. Gilliat, L. R., 9 Eq. 60.

Sale of leaseholds.] The purchaser is not bound to complete a contract for the purchase of a lease, if subject to onerous covenants of an unusual character, unless, prior to the contract, he had an opportunity of ascertaining the terms of the covenants. Reeve v. Berridge, 20 Q. B. D. 523, C. A. So in the case of a contract to take an underlease. Hyde v. Warden, 3 Ex. D. 72, C. A.

Vendee against Vendor.

If the vendor refuse, or is unable to complete his contract, the purchaser may either sue for damages for such breach of contract; or in case he has made a deposit or paid part of the purchase money and has not taken possession, may sue to recover it back as money had and received. So, if a fraud has been practised on him by the vendor to induce him to buy, the vendee may rescind the contract, and sue for the deposit. Thornett v. Haines, ante, p. 318.

In a special action on the contract by the purchaser, he must prove the contract, if denied; and by other defences he may be put to prove the performance of conditions precedent, and all other matters traversed by the defendant. The vendee is entitled to have a good title; vide ante, p. 311; but this right is lost by failure to take objections to that disclosed on the abstract within the time limited by the contract. Rosenberg v. Cook, 8 Q. B. D. 162, C. A. In this case the vendee was held entitled to delivery of possession, only, of the land by the vendor. When the defendant's title, as stated in the abstract, is objected to, it will not be enough to prove that the title has been deemed by conveyancers to be insufficient; the defect must be pointed out; Camfield v. Gilbert, 4 Esp. 221; and the plaintiff cannot, at the trial, insist upon any objection to the title, as stated therein, which he neglected to take at the time of rescinding the contract, and which might have been remedied by the vendor if taken before. Todd v. Hoggart, M. & M. 128, cor. Ld. Tenterden, C. J. The vendor may compel delivery of particulars of every matter of fact relied upon as an objection; but not of matter of law. Roberts v. Rowlands, 3

M. & W. 543. If no particulars have been given, and the pleadings are general, the vendee will be at liberty to prove any infraction of the conditions of sale. Squire v. Tod, 1 Camp. 293.

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Where the sale is subject to a condition that if the purchaser make any requisition which the vendor should be unable or unwilling to remove or comply with," the right to rescind thereunder must be exercised reasonably. In re Starr-Bowkett Building Society and Sibun's Contract, 42 Ch. D. 375, C. A. It arises as soon as the requisition is made. S. C. The vendor is not bound to state his reasons for rescission. S. C. After rescission, the contract is at an end, and the subsequent withdrawal by the purchaser of his requisitions has no effect. In re Dames and Wood, 29 Ch. D. 626, C. A. See further, as to rescission under such a condition, Gray v. Fowler, L. R., 8 Ex. 249, Ex. Ch.; Woolcott v. Peggie, 15 Ap. Ca. 42, P. C.

As to when the vendee is entitled to sue the vendor for not completing on the day fixed, vide ante, pp. 314 et seq.

As to action for deposit, vide infra. After the purchaser has recovered the deposit only from the auctioneer, he may, in a special action against the vendor, recover interest and the expenses of investigating the title. Farquhar v. Farley, 7 Taunt. 592. The expenses of investigating the title cannot be recovered under a claim for money paid. Camfield v. Gilbert, 4 Esp. 221.

As a general rule, the vendee is bound to tender a conveyance to the vendor for execution by him. Poole v. Hill, 6 M. & W. 835. Yet, even when he is bound by the express terms of the contract to tender one, if a bad title be produced, he may maintain an action for the recovery of his deposit without tendering it. Seaward v. Willock, 5 East, 198, 202, per Ld. Ellenborough; and in Lowndes v. Bray, Sugd. V. & P., 14th ed. 364 (b). So, where the vendor has, by selling the estate, incapacitated himself from executing a conveyance to the purchaser, further trouble and expense on the plaintiff's part are unnecessary, and he may sustain an action without tendering a conveyance, or the purchase money. Lovelock v. Franklyn, 8 Q. B. 371. As to the vendee's right to rescind the contract on the ground of want of title in the vendor, vide ante, p. 313.

After the completion of the conveyance the purchaser may, if he were induced to enter into the agreement by fraud, maintain an action to set aside the agreement and recover his purchase money. Raddy v. Williams, 3 J. & L. 1; or for damages, vide post, Action for Deceit and Misrepresentation. Where he was induced to enter into it by an innocent misrepresentation, he may maintain an action to set it aside, and to recover his purchase money; vide id.; but he cannot, in the absence of a special term in the agreement of purchase that he shall be allowed compensation, maintain an action for damages. Clayton v. Leech, 41 Ch. D. 103, C. A., approving Besley v. Besley, 9 Ch. D. 103; Brett v. Clowser, 5 C. P. D. 376; Joliffe v. Baker, 11 Q. B. D. 255. Where, however, there is such special term in the agreement, it has been held that it is not, for this purpose, merged in the conveyance, and that the purchaser may recover damages thereon. Palmer v. Johnson, 13 Q. B. D. 351, C. A., following Bos v. Helsham, L. R., 2 Ex. 72; In re Turner and Skelton, 13 Ch. D. 130. This view is, however, opposed to that expressed in Sugden's V. & P. 14th ed., p. 549, and Dart's V. & P. cap. xiv. ss. 5, 6.

Claim for deposit.] To enable the purchaser to maintain an action for money had and received to recover the deposit, the contract must be disaffirmed ab initio. Some of the grounds upon which it may be rescinded are stated ante, pp. 313, 314. As to when the purchaser is entitled to rescind

the contract on the ground of non-completion of the contract on the appointed day, vide ante, pp. 314, 315. If the purchaser have taken possession of the premises under the contract, he has adopted the contract, and cannot disaffirm it afterwards by quitting the premises, as the parties cannot be put in the same situation in which they before stood. Hunt v. Silk, 5 East, 449. See also In re Gloag and Miller's Contract, 23 Ch. D. 320, cited ante, p. 314. His remedy is then on the contract itself. Blackburn v. Smith, 2 Exch. 783. If the purchaser repudiate the contract, Ex parte Barrell, L. R., 10 Ch. 512; or fail to complete it within a reasonable time, Howe v. Smith, 27 Ch. D. 89, C. A.; he cannot recover the deposit, though there be no clause of forfeiture in the contract. And, even if the contract be oral only, the purchaser cannot, by repudiating it, after he has obtained the abstract and sent requisitions thereon, entitle himself to recover the deposit. Thomas v. Brown, 1 Q. B. D. 714. It seems that the purchaser cannot recover the deposit if he would get a good holding title, even although it is not one which the court would force on him. See Nottingham Patent Brick and Tile Co. v. Butler, 16 Q. B. D. 778, C. A. Where the vendee, A., has accepted the title, and the vendor, B., has forfeited the deposit under a clause in the contract for non-completion, A. cannot afterwards recover it on the ground that the title was bad. Soper v. Arnold, 37 Ch. D. 96, C. A.; 14 Ap. Ca. 429, D. P.

When the plaintiff seeks to recover the deposit, he must prove payment of it to the defendant. A payment to the agent of the vendor is, in law, a payment to the principal; and in an action against the latter for the recovery of the money, it is immaterial whether it has actually been paid over to him or not. Norfolk, Dk. of v. Worthy, 1 Camp. 337. But if the deposit has been paid to the auctioneer, an action for it will lie against him before payment over to his principal, for he is in the nature of a stakeholder; Burrough v. Skinner, 5 Burr. 2639; or, if he has paid it over after notice of the defect in the title; Edwards v. Hodding, 5 Taunt. 815; and even, it should seem, after payment over to the principal without notice; for he ought to keep the deposit until the sale is complete, and it appears to whom it ought to be paid. Gray v. Gutteridge, 1 M. & Ry. 614. No notice to the auctioneer previous to the action being brought against him as stakeholder is necessary. Duncan v. Cafe, 2 M. & W. 244. Interest on the deposit cannot, in general, be recovered in such action. Lee v. Munn, 8 Taunt. 45; Farquhar v. Farley, 7 Taunt. 594. But it may be given by the jury under 3 & 4 Will. 4, c. 42, s. 28, as damages, if a demand for the repayment of the money has been made with a notice that interest will be claimed; vide Action for interest, post, p. 596. Where an auctioneer does not disclose the name of principal, an action will lie against himself for damages for the breach of contract. Hanson v. Roberdeau, Peake, 120; Simon v. Motivos, 3 Burr. 1921.

Damages.] Where the contract is oral the vendee can recover the deposit only, for he cannot sue upon the special contract. Walker v. Constable, 1 B. & P. 306. In other cases the purchaser may recover, in a special action against the vendor, the deposit with interest, and the expenses of investigating the title, searching for judgments, &c. Hodges v. Lichfield, El. of, 1 N. C. 492; Turner v. Beaurain, Sugd. V. & P., 14th ed., 362; Farquhar v. Farley, 7 Taunt. 592. And such expenses as a solicitor's bill may be recovered under an averment that plaintiff "had been put to great expenses, to wit, &c., in and about investigating the title," &c., although not actually paid. Richardson v. Chasen, 10 Q. B. 756. If the purchase money has been lying ready without any interest

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being made of it, and it was reasonable to keep it so lying, interest may be recovered as damages. Sherry v. Oke, 3 Dowl. 349. But a person who has agreed to advance a sum on a mortgage, cannot recover interest on it where the negotiation fails for want of title, unless there be a special contract to pay it. Sweetland v. Smith, 1 Cr. & M. 585.

The purchaser cannot recover expenses incurred previously to entering into the contract; nor the expenses of a survey of the estate made before he knows the title; nor the expense of a conveyance drawn in anticipation; nor the extra costs of a suit for specific performance brought by the vendor; nor losses on the re-sale of stock prepared for the farm. Hodges v. Lichfield, El. of, ante, p. 321. So where the vendee filed a bill for specific performance, which was dismissed in consequence of the defective title, he was not permitted to recover these costs in an action against the vendor for breach of contract. Malden v. Fyson, 11 Q. B. 292. Nor can the vendee recover any expenses incurred in preparing a conveyance after the defect in title was discovered; Pounsett v. Fuller, 17 C. B. 660; 25 L. J., C. P. 145; or in further fruitless negotiations. Sikes v. Wild, 1 B. & S. 587; 30 L. J., Q. B. 325, Ex. Ch.; 4 B. & S. 421; 32 L. J., Q. B. 375. And where a lessee, with power to alter and improve, had an option to purchase, and, after laying out money in improvements, elected to purchase, and the title proved bad, he was held entitled only to damages for the breach of contract, but not for expense of improvements. Worthington v. Warrington, 8 C. B. 134. Where the defendant agreed to demise lands to the plaintiff, and to deduce a good title thereto, and the plaintiff had formed a company to establish certain works on it, and the title proved to be a bad one, it was held that the plaintiff might recover the expenses of the agreement, of investigating the title and endeavouring to procure a good one and to obtain the lease; but not the expense of raising the purchase money with interest, or of forming, establishing, and registering the company, nor the profits that would have accrued either to the company from the lease, or to the plaintiff as their solicitor, in carrying their project into effect; the latter heads of expense being either premature or speculative. Hanslip v. Padwick, 5 Exch. 615.

The purchaser is not in general entitled to recover compensation for the fancied goodness of his bargain, where the vendor is, without fraud, incapable of making a title. Flureau v. Thornhill, 2 W. Bl. 1078; Bain v. Fothergill, L. R., 7 H. L. 158. This rule is of general application, and the exception engrafted thereon by Hopkins v. Grazebrook, 6 B. & C. 31; Robinson v. Harman, 1 Exch. 850, is no longer law. S. C. The purchaser can by an action for deceit only recover any damages beyond the expenses he has incurred. S. C., per Ld. Chelmsford, L. R., 7 H. L. 207;* Engel v. Fitch, L. R., 3 Q. B. 314; L. R., 4 Q. B. 659, Ex. Ch. So a purchaser who has obtained a decree for specific performance cannot in general recover damages for delay in completion. Rowe v. London School Board, 36 Ch. D. 619. A contract to grant an easement is for this purpose equivalent to a contract to sell land. S. C. Where, however, the sale does not go off for want of title, but by reason of the refusal of the vendor to take the necessary steps to give possession to the vendee, it seems that the plaintiff can recover damages for the loss of the bargain, the measure of damages being the difference between the contract price and the market price at the time of the breach. Engel v. Fitch, supra. The price at which the estate was afterwards sold is primâ facie evidence of its market value. S. C.; and see Godwin v. Francis, L. R., 5 C. P. 295, cited sub tit. Action on warranty of authority, post, p. 474. Where A. agreed to let premises to B., knowing his intention to carry on a trade thereon, B. was held entitled to recover from A., for the breach of this agreement, damages

for the loss of anticipated business during the time he necessarily occupied in getting other premises. Jaques v. Millar, 6 Ch. D. 153. So loss of rent may be recovered as damages. R. Bristol Permanent Building Society v. Bomash, 35 Ch. D. 390. As to the effect of a provision in the contract for the payment of a penalty or liquidated damages, vide ante, p. 316. As to what damages are recoverable under a claim for the deposit, vide ante, p. 321.

ACTION FOR USE AND OCCUPATION.

This action is grounded on stat. 11 Geo. 2, c. 19, s. 14, by which it is enacted that it shall be lawful for landlords, where the agreement is not by deed, to recover a reasonable satisfaction for the lands, tenements, or hereditaments held or occupied by the defendants, in an action on the case for the use and occupation of what was so held or enjoyed; and if, on the trial of such action, any parol demise or any agreement (not being by deed) whereon a certain rent was reserved shall appear, the plaintiff shall not therefore be non-suited, but may make use thereof as evidence of the quantum of damages to be recovered. But, the action of debt for rent on a contract for use and occupation lies at common law and not upon this statute. Egler v. Marsden, 5 Taunt. 25; Gibson v. Kirk, 1 Q. B. 850; and per Bramwell, B., in Churchward v. Ford, cited infra. It may be observed that since the abolition of real actions by stat. 3 & 4 Will. 4, c. 42, debt for a rentcharge in fee will lie against the tenant in possession of the land; Thomas v. Sylvester, L. R., 8 Q. B. 368; Searle v. Cooke, 43 Ch. D. 519, C. A.; even although the rentcharge may be also recoverable under 44 & 45 Vict. c. 41, s. 44. S. C. It will not, however, lie personally against the official liquidator of a company in whom the land out of which the rentcharge issues has been vested by order of the court under the Companies Act, 1862, s. 203. Graham v. Edge, 20 Q. B. D. 683, C. A.

Plaintiff's title.] If the defendant have come in under the plaintiff, or have acknowledged his title by the payment of rent to him or otherwise, he will not be permitted to impeach it at the trial; Syllivan v. Stradling, 2 Wils. 208; Cooke v. Loxley, 5 T. R. 4; Phipps v. Sculthorpe, 1 B. & A. 50; and it is not material in such case that the plaintiff should have the legal estate. Hull v. Vaughan, 6 Price, 157. Thus, if cestui que trust demises, he is the person to sue for the rent, and not the trustee, though the latter may have given notice to defendant to pay to him. Churchward v. Ford, 2 H. & N. 446; 26 L. J., Ex. 354. But, unless the defendant came in under the plaintiff, or had recognized his title, the plaintiff could only recover rent from the time that the legal estate vested in him. Cobb v. Carpenter, 2 Camp. 13, n. It seems, however, that since the J. Acts it is sufficient if the plaintiff has a right in equity to receive the rents as such. Tenants in common may join in this action on a parol yearly tenancy, if the tenant has always paid the rent to a joint agent of the plaintiff's; for this is evidence of a joint letting. Last v. Dinn, 28 L. J., Ex. 94. Where a party, after letting defendant into possession on an agreement for a future lease, mortgaged the premises to the plaintiff, who gave notice to the defendant of the mortgage, it was held that the plaintiff might recover in this form of action rent accruing due for a halfyear subsequent to the mortgage, and during the currency of which the notice was given. Rawson v. Eicke, 7 Ad. & E. 451. A defendant, whose tenancy began under A., and who has since paid rent to the cestui

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