ed. ii. 49. made to pay in damages for the consequent inconvenience and disappointment he has imposed on the purchaser. On these grounds, the decision of the Court of King's Bench, 1 6 B. & C. 31. in the late case of Hopkins v. Grazebrooke1, will be very clear, though it has been treated by Sir Edward Sugden as "likely to tend to much litigation, before the distinction which it introduces "V. & P. 10th is thoroughly understood 2." There the vendor had contracted for the purchase of an estate; but before he had obtained a conveyance, put up the estate for sale in lots by auction, and engaged to make a good title by a certain day, which he was unable to do, as his vendor never made a conveyance to him: the Court of King's Bench held, that a purchaser might, in an action on the agreement for sale, recover not only the expenses he had incurred, but also the damages he had sustained, by not having the contract carried into effect. Lord Tenterden, with reference to Sir W. Blackstone's dictum, said, " Upon the present occasion, I will 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, I am by no means prepared to assent to it: if it were necessary to decide that point, I should desire to have time for consideration; but the circumstances of this case differ very materially from that in Sir W. Blackstone's Reports. There the vendor was the owner of the estate; and an objection having been made to the title, he of fered 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 up estate 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 even the shadow of a title, I think, he must be responsible for the damage sustained by the breach of his contract." The distinction between these two classes of cases seems to be very clear. Where a purchaser brings an action against a vendor to recover damages, such damages shall be measured by the deposit and his expenses, if the ground of the action be, that the vendor cannot complete because of inability to shew a clear title; but if the vendor's breach of contract results from his own misconduct or undue precipitancy, as where, for instance, he had subsequently conveyed the estate to another person, as in Daniels v. Davidson3, or where he has entered into a contract before he $ 16 Ves. 249. the became at law the owner of the estate, or ascertained the state of the title, there the purchaser shall recover not only his deposit and expenses, but also such damages as may compensate him for the loss he has sustained by not having his bargain completed. This subject has again undergone discussion in a recent case1, which seems to have been determined in accordance with these views. In this case, the plaintiff, having agreed for the purchase of certain farms and messuages in the county of Lincoln, after the delivery of the abstracts, which, on the face of them, shewed a good title, but before they had been compared with the originals, resold part of the estate purchased, at a considerable advance. On examining the original documents, they disclosed a defect of title as to one-twentieth undivided part of the whole estate, in consequence of which the sub-purchasers refused to complete: and the question was, whether the plaintiff was entitled to recover damages against the original vendor for the loss of the beneficial sub-contracts he had entered into, and in respect of his liability for damages to the sub-purchasers. In the course of the argument, Bailey, J., having asked the counsel for the plaintiff, "whether he had any right to sell before he knew that he had got a good title?" "whether the plaintiff was entitled to recover more, than the damage done by the misrepresentation of the title in the abstract?" and "whether the loss of a good bargain could be considered such damage?" delivered his judgment as follows:-"The case of Hopkins v. Grazebrooke is very different from this. There, the defendant had sold property as his own, which was not so; and the court was of opinion, that the defendant being in fault by representing himself as the owner of the property, the plaintiff's right was not restrained to nominal damages, and there the principle on which the jury assessed the damages is not stated. Here the defendants undertook to make a good title, and they might honestly think, that they should be able to do so. It turned out that they could not; and consequently, the contract was broken, and they were liable to an action. The plaintiff, however, must shew that the damages which he seeks to recover, arose from the acts of the defendant, and not from his own haste. Now, looking at the course of the proceedings, it appears that an abstract was delivered in August, and the objections made to the title, as there set forth, were answered in September; but the abstract was not then examined with the deeds, and until that had been done, the plaintiff was not justified in acting upon the title shewn on the abstract. If it had been examined with the deeds and found correct, the plaintiff might perhaps have been justified in acting on the faith of having the estate; and if, after that time, he had made a sub-contract, I think, he would have been entitled to recover the expenses attending it, if it failed in consequence of any defect in the title of his vendor. And further, if there were mala fides in the original vendor (but not otherwise), I am not prepared to say that the purchaser might not recover the profit, which would have arisen from the resale. But, if premises for which a party has contracted, are by him offered for resale too soon, that is at his own peril, and the damage, if any, resulting from such offer, arises from his own premature act, and not from the fault of his vendor. Here, I think, the plaintiff was premature, and therefore cannot recover." The opinion intimated here, that il the purchaser had compared the abstract with the original docu ments, previous to the resale, he might have been entitled to recover damages for the loss of the bargain, will, perhaps, on exa mination, hardly appear tenable. Mr. Justice Littledale observed with respect to it, that he was not prepared to say, that if such examination had been made, the plaintiff could have recovered, adding, “It seems to me contrary to the policy of the law that a man should offer an estate for sale, before he has obtained possession, and a conveyance*." * Ib. 422; and see cases cited in Doe v. Powell, (3 Nev. & Man. 619). The same opinion appears to have been thrown out more decidedly by this judge in the course of the argument, when he observed, "It is contrary to the policy of the law that a man should sell his estate before he has a title and possession." This seems to be the sound view of the question, and flows naturally from the policy which produced the Statute of Maintenance (32 Hen. 8, c. 9), which enacts, "That no one shall sell or purchase any pretended right or title to land, unless the vendor hath received the profits thereof for one whole year before such grant, or hath been in actual possession of the land or of the reversion or remainder, on pain that both vendor and purchaser shall each forfeit the value of such for that purpose, they are The extent of damages recoverable by the purchaser was again the subject of much discussion in a recent case, when it was held, that where the vendor, from inability to make out a title, fails to complete a contract for the sale of an estate, the purchaser cannot recover as damages expenses incurred previous to entering into the contract,-nor the expense of a survey of the estate, nor the expense of a conveyance, drawn in anticipation of a completion of the purchase,―nor the extra costs of a Chancery suit, touching the purchase, in which the vendor is defeated,-nor losses sustained by the purchaser in the re-sale of stock purchased for the estate; but he is entitled to recover the expenses of comparing deeds, of searching for judgments, of journies for that purpose, and interest on his deposit money1. 1. Of the Bill.]—In a bill for specific performance, it is not necessary to allege that the agreement is signed by the party to be charged; it is sufficient to state that the agreement was in writing2. The reason assigned by Sir J. Leach, that, "if the paper were not signed it was not an agreement, and that, therefore, signature must be presumed till the contrary be shewn," is not very satisfactory, though the decision appears to be right: for, it may be observed, that, at law, it is sufficient now, as it was before the statute, to allege an agreement generally, without saying either that it was in writing or signed; and then, if the defendant means to avail himself of the statute, he must shew that the agreement is not in writing, or not signed, according to the exigency of his case. On the same principle, it would seem to be to suffer this doctrine to be shaken by any reference to the law of champerty or maintenance, I should violate the established habits of this court, which VOL. II. has always given to parties entering Q Q Rist v. Hobson, 1 Sim. & Stu. 543. sufficient to allege in equity, where the pleading is generally less strict, an agreement simply, without saying that it was signed or even in writing, and leave the defendant to avail himself of the statute, by answer, plea, or demurrer, as he might be advised. Whitchurch v. According to the settled practice, however, it is necessary to allege that the agreement is in writing, which Lord Thurlow1 considers is thrown into the bill for the mere purpose of forcing the defendant to plead the statute instead of demurring; and then the plea must be supported by an answer, denying the agreement; for if he confessed the agreement, the court would decree specific performance, notwithstanding the statute 2. Bevis, 2 Bro. C. C. 559. Child v. Godolphin, 1 Dick. 39; S. C. cited 2 Bro. C. C. ham v. Fletch er, 2 Atk. 155. Eyre v. Popham, Lofft, 808. Whitchurch v. 2. Effect of the Admission of an Agreement by the Answer.]— The opinions of the equity judges are, at an early period, very 566; Cotting various as to the effect of an admission of an agreement. In a case which has been just cited, Lord Macclesfield held, that even a plea of the statute would not protect the defendant if he confessed the agreement. Lord Bathurst, on the other hand, thought, that, notwithstanding such confession, still the court would not enforce the agreement, except there were fraud. "The only case,” said his Lordship, "I know, that takes a contract out of the statute, is fraud, and the jurisdiction of the court is principally intended to prevent fraud and deceit. When a party has given ground to another to think he had a title secured, the court will secure it to him: the ground, therefore, in making and refusing decrees, has been fraud 3." Neither of these views was ultimately adopted, Lord Thurlow4 having first rather obscurely, and Mr. Baron Eyre afterwards distinctly laid it down3, that all the cases in the books, which had been determined on the defendant's admission, cases where the statute was not insisted upon. Lord Eldon followed up the same view of the subject, intimating his opinion to be, "that if the defendant admits the agreement, but insists upon the benefit of the statute, the statute protects him: if he does not say anything about the statute, then he must be taken to reand see Rowe v. nounce the benefit of it. And Sir W. Grant ultimately held, that, "according to the modern, which he thought to be the correct doctrine, it is immaterial what admissions are made by a defendant insisting upon the benefit of the statute; for he throws it upon the plaintiff to shew a complete written agreement; and it can no more be thrown upon the defendant to supply defects in the agreement, than to supply the want of an agreement 7". Where, however, a party admits an agreement, not insisting upon Bevis, 2 Bro. C. C. 559; Whit bread v. Brockhurst, 1 Bro. C. C. 412. 5 Stewart v. Careless, cited 2 Bro. C. C. 563, 565. Cooth v. Jack son, 6 Ves. 39; Teed, 15 Ves. 375. * Blagden v. Bradbear, 12 Ves. 471. were |