Materiality of Time for Completion.

295

Time for completion, &c., when material.] When a day is fixed for completion, unless the vendor make out a good title by that day, the purchaser was, at law, entitled to rescind the contract; Cornish v. Rowley, and Berry v. Young, ante, p. 294; Noble v. Edwardes, 5 Ch. D. 378, C. A. ; even though it appeared that the purchaser was not ready to pay the purchase money. Clarke v. King, Ry. & M. 394. If no time is mentioned for the vendor to make out a good title, he must be allowed a reasonable time; Samson v. Rhodes, 6 N. C. 261; but Ld. St. Leonards [V. & P., 14th ed. 259 (1)] adds sed quære.

But although, at law, the time of completion was of the essence of the contract, in equity this was in general otherwise, if there were nothing in the express stipulations between the parties, the nature of the property, or the surrounding circumstances which would make it inequitable to interfere with and modify the legal right. Roberts v. Berry, 3 D. M. & G. 284, 291, per Turner, L. J.; Tilley v. Thomas, L. R., 3 Ch. 61, 67, per Ld. Cairns, L. J. By the J. Act, 1873, s. 25 (7), ante, p. 282, the rule of equity now prevails. A court of equity proceeded on the principle that, having regard to the nature of the subject, time was immaterial to the value, and was urged only by way of pretence and evasion. Doloret v. Rothschild, 1 Sim. & St. 590. This principle, however, does not apply where the property fluctuates in value from day to day, as in the case of foreign stock: time is then of the essence of the contract. S. C. So, in the case of a life annuity; see Withy v. Cottle, Turn. & R. 78. Or, of a reversion; see Newman v. Rogers, 4 Bro. C. C. 391; Spurrier v. Hancock, 4 Ves. 667; Patrick v. Milner, infra. So, where property is bought for the purpose of residence; Tilley v. Thomas, supra; or, of trade, as in the case of a grant of a mining lease; Parker v. Frith, 1 Sim. & St. 199, n.; or, of the sale of a public-house as a going concern; Cowles v. Gale, L. R., 7 Ch. 12. In this latter case the transfer of the licences is, in the absence of express stipulation, to be made under the Licensing Act, 1872 (35 & 36 Vict. c. 94), s. 40, (2); and if not so made, the purchaser may rescind. See S. C., and Claydon v. Green, L. R., 3 C. P. 511, decided on 9 Geo. 4, c. 61, s. 11, the corresponding enactment, formerly in force, and now repealed by the later act. The Licensing Act, 1874 (37 & 38 Vict. c. 49), does not affect transfers. Time is also of the essence of the contract in equity where the vendors are a fluctuating body, and beneficially interested, as in the case of an ecclesiastical corporation. Carter v. Ely, Dean of, 7 Sim. 211. In such cases, however, if the conditions of sale provide for the possibility of delay in completion, it seems that time is not of the essence of the contract. Patrick v. Milner, 2 C. P. D. 342.

5th

If either party has been guilty of delay, then, although time was not originally of the essence of the contract in equity, the other party may make it so by giving notice to complete within a reasonable time limited by such notice. Stewart v. Smith, 6 Hare, 222, n.; Benson v. Lamb, 9 Beav. 502; Green v. Sevin, 13 Ch. D. 599, 600, per Fry, J. What is a reasonable time depends on the circumstances of each case, the state of the title, &c., and it is impossible to lay down any definite rule as to what the length of the notice must be. See Sugd. V. & P., 14th ed., 268, 269; Dart, V. & P., ed. 422, 423; Crawford v. Toogood, 13 Ch. D. 153; Green v. Sevin, Id. 589. So, conversely, although time may have been originally of the essence of the contract, this may be waived by the conduct of the other party. Thus, it being in equity the duty of the purchaser to apply for the abstract, if he do not do so before the time agreed on for delivery thereof, the condition as to time is waived. Guest v. Homfray, 5 Ves. 818. So, where an abstract delivered after the time limited is received without objection, the condition is waived. Smith v. Burnham, 2 Anstr. 527.

If the purchaser has not made an application for the title before the

commencement of the action, and no time is fixed for completing the contract, it is said to be sufficient if the plaintiff can show a good title in himself at the time of trial. Thompson v. Miles, 1 Esp. 185. And where time is not of the essence of the contract, and the delay originates in the state of the title, it is sufficient if, on an action being brought by the vendor for specific performance, he make out a good title at the time of the judgment. Sugd. V. & P., 14th ed. 264.

Readiness to convey.] An averment of readiness to convey, if traversed, is negatived by proof of a defective title; for it negatives ability to convey. De Medina v. Norman, 9 M. & W. 820. See further on the evidence under a negative of readiness, post, Action for not accepting goods. The plaintiff is not bound to tender a conveyance where (as is usual) it is to be prepared by and at the cost of the vendee. Wilmot v. Wilkinson, 6 B. & C. 506. An averment of readiness at the steward's office, on a certain day, to complete the conveyance of copyhold by surrender, &c., is proved by the plaintiff's readiness to go to the office, though he omitted to do so, because the defendant had just before that day told him that he should not be ready. Perry v. Smith, Car. & M. 554, per Patteson, J. As to the right of the vendee to require separate conveyances of parcels, see Egmont, El. of, v. Smith, 6 Ch. D. 469.

By the Conveyancing and Law of Property Act, 1881 (44 & 45 Vict. c. 41), s. 8 (1), “On a sale, the purchaser shall not be entitled to require that the conveyance to him be executed in his presence, or in that of his solicitor, as such; but shall be entitled to have, at his own cost, the execution of the conveyance attested by some person appointed by him, who may, if he thinks fit, be his solicitor."

The purchaser might at common law have refused to take a conveyance executed under a power of attorney; for it multiplies his proofs, and there is the risk of express or implied revocations. Anon. cited, 1 Esp. 116; Richards v. Barton, Id. 269. Under the Conveyancing Act, 1882 (45 & 46 Vict. c. 39), ss. 8, 9, a power of attorney may be made irrevocable, and under the 44 & 45 Vict. c. 41, s. 48 (1) a power of attorney may, with an affidavit of verification, be filed in the central office (vide ante, p. 92), and, (4) "an office copy of an instrument so deposited shall without further proof be sufficient evidence of the contents of the instrument and of the deposit thereof in the central office." Sufficient evidence is probably equivalent to prima facie evidence. See Barraclough v. Greenhough, L. R., 2 Q. B. D. 612, Ex. Ch., cited ante, p. 141. There is no provision under sect. 8, supra, that the purchaser may provide a witness to the execution of the power, and it is very doubtful if the above sections would oblige a purchaser to accept a conveyance executed under a power. If the vendee did not attend to complete, it seems no objection that the vendor's solicitor had not a formal authority to receive the purchase money. See Cox v. Watson, 7 Ch. D. 196.

Claim on an account stated.] Where the contract is not in writing as required by the Stat. of Frauds, plaintiff may sometimes recover on a claim for an account stated by proving an acknowledgment of money due. Cocking v. Ward, 1 C. B. 858; Laycock v. Pickles, 4 B. & S. 497; 33 L. J., Q. B. 43, cited post, Action on account stated.

Damages.] Where the action is brought before conveyance, the defendant having taken possession and dispensed with the execution of the conveyance, the plaintiff cannot recover the whole purchase money, but only damages; for the land continues to belong to him. Laird v. Pim, 7 M. & W. 474. This rule applies in the case of land compulsorily taken under the provisions of the Lands Clauses Consolidation Act, 1845. E. London Union v.

Damages.-Defence.-Fraud.

297

Metropolitan Ry. Co., L. R., 4 Ex. 309. The plaintiff may recover his bill of costs without proving that it has been paid. Richardson v. Chasen, 10 Q. B. 756.

The conditions of sale usually provide for the payment of a deposit by the purchaser, which is to be forfeited to the vendor, on default of the former in complying with the other conditions. Where the purchaser fails to make the agreed deposit, the vendor, on default made by the purchaser in completion, is entitled to recover the amount of the deposit. Wallis v. Smith, 21 Ch. D. 243. The forfeiture of the deposit does not, however, prevent the vendor from recovering general damages on the purchaser's refusal to complete. Icely v. Grew, 6 Nev. & M. 467; Essex v. Daniell, L. R., 10 C. P. 538. But, where the vendor resells the property under a usual condition of sale, and does so at a loss, he must, in suing the vendee for such loss and for the expenses, give him credit for the amount of the deposit paid. Ockenden v. Henly, E. B. & E. 485; 27 L. J., Q. B. 361. Where the contract contains a variety of stipulations of different importance, and one sum is stated to be payable on breach of performance of any one of them; then the rule has been that, although it be called by the name of liquidated damages, it is in reality a penalty, and the actual damage sustained is alone recoverable. Magee v. Lavell, L. R., 9 C. P. 107, 111, 115. See also Ex pte. Hulse, L. R., 8 Ch. 1022; Ex pte. Capper, 4 Ch. D. 724. But in Wallis v. Smith, supra, the C. A. doubted if this rule applied unless one of the stipulations were for the payment of a lesser sum of money, or were of very trivial importance.

Accidental deterioration after the date of the contract is a loss which must fall on the vendee. Robertson v. Skelton, 12 Beav. 260; 19 L. J., Ch. 140. Hence, it seems that such loss may be claimed as part of the plaintiff's damages occasioned by the defendant's non-completion.

Defence.

By Rules, 1883, O. xix., r. 15, ante, p. 283, the defendant must allege in his statement of defence all facts not previously stated on which he relies, and must raise all such grounds of defence as, if not pleaded, would be likely to take the plaintiff by surprise. Rule 17, ante, p. 283, provides that a plaintiff shall not deny generally the allegations in the statement of the claim. See Byrd v. Nunn, 5 Ch. D. 781 ; 7 Ch. D. 284, C. A.

Denial of Contract.] By Rules, 1883, O. xix., r. 20, ante, p. 284, a bare denial of a contract alleged in any pleading shall be construed only as a denial of the making of the contract in fact, and not of its legality or its sufficiency in law, whether in reference to the Stat. of Frauds or otherwise. This rule requires the defendant specifically to allege in his defence that he relies on the objection to the contract arising under the statute. Clarke v. Callow, 46 L. J., Q. B. 53, C. A. As to when a written contract is dispensed with by part performance, vide ante, p. 290, et seq.

Fraud. Misdescription.] Fraud must be specially pleaded. Rules, 1883, O. xix., r. 15, ante, p. 283. See further as to fraud, post, Defences to actions on simple contracts-Fraud.

It is a defence that a misdescription has been wilfully introduced into the conditions of sale to make the land appear more valuable. Norfolk, Dk. of, v. Worthy, 1 Camp. 340; and see Vernon v. Keys 12 East, 637. The result of the decisions on this point is thus stated by Tindal, C. J., in Flight v. Booth, 1 N. C. 376:-"All the cases concur in this, that where the misstatement is wilful or designed, it amounts to fraud, and such fraud, upon general principles of law, avoids the contract altogether. But with respect

to mis-statements which stand clear of fraud, it is impossible to reconcile all the cases; some of them laying it down that no mis-statements which originate in carelessness, however gross, shall avoid the contract, but shall form the subject of compensation only; Norfolk, Dk. of, v. Worthy, ante, p. 297; Wright v. Wilson, infra, whilst other cases lay down the rule that a misdescription in a material point, although occasioned by negligence only, not by fraud, will vitiate the contract of sale. Jones v. Edney, 3 Camp. 284; Waring v. Hoggart, Ry. & M. 39; Stewart v. Alliston, 1 Mer. 26. În this state of discrepancy between the decided cases, we think it is at all events a safe rule to adopt, that where the misdescription, although not proceeding from fraud, is in a material and substantial point so far affecting the subject-matter of the contract that it may reasonably be supposed that, but for such misdescription, the purchaser might never have entered into the contract at all, in such case the contract is avoided altogether and the purchaser is not bound to resort to the clause of compensation. Under such a state of facts, the purchaser may be considered as not having purchased the thing which was really the subject of sale, as in Jones v. Edney, supra, where the subject-matter was described to be a free public-house, while the lease contained a proviso that the lessee and his assigns should take all the beer from a particular brewery, in which case the misdescription was held to be fatal." Accord. Pulsford v. Richards, 17 Beav. 96.

66

"

Where premises were malâ fide described as "a substantial brick building," which were not such, and a plot of land mentioned in the particulars did not exist at all, the sale was held voidable. Robinson v. Musgrove, 2 M. & Rob. 92. So, where they were described as an eligible investment; and they were, in fact, liable to be taken under a local public act: held that the purchaser might rescind the contract, and that the act, though public, was not notice per se. Ballard v. Way, 1 M. & W. 520. And, where the premises, including a yard, were said to be held under a term of 23 years, when, in truth, the yard, which was an essential part, was held under a yearly tenancy, the purchaser was allowed to rescind the sale, though a lease of the yard for the same term was afterwards procured by the seller, and though there was a clause in the conditions for compensation in the case of erroneous description, and a provision that the contract should not be annulled by it. Dobell v. Hutchinson, 3 Ad. & E. 355. Where an agreement for sale contains a clause similar to the one in the last case, the court will not decree specific performance where the acreage varies very largely from that represented. Durham, El. of, v. Legard, 34 Beav. 611; 34 L. J., Ch. 589, and cases there cited. Where an estate was represented to contain 1530 acres, when in fact it contained only 1100 acres, it was held that a condition that the estate as to extent of acreage should be taken to be conclusively shown by certain deeds, was a mere conveyancing condition as to identity, and that, coupled with the representation as to the acreage, it did not estop the purchaser from rescinding on the ground of deficiency in acreage. Aberaman Ironworks v. Wickens, L. R., 4 Ch. 101. But, where it was provided by the conditions of sale, that " "if any mistake should be made in the description of the premises, or if any other material error should appear in the particulars of sale, such mistake or error_should not annul the sale, but a compensation should be made," the vendee was held not to be released from the contract by reason of a misdescription in the particulars of sale obvious on inspection of the premises, unless such misdescription was wilful and designed. Wright v. Wilson, 1 M. & Rob. 207. So, a specific performance for the purchase of a meadow, was decreed, where a visible footway went across it, of which no notice was given. Oldfield v. Round, 5 Ves. 508; see Sugd. V. & P., 14th ed. 328. Where building ground was sold, as such, without notice of a right of way reserved

Vendee against Vendor.

299 across it by a lease as of another portion of it, held that the contract was voidable; and the purchaser was permitted to avoid it as to two lots separately bought at an auction, though the defect applied only to one lot; the seller having afterwards united both in a single contract of sale at an entire sum. Dykes v. Blake, 4 N. C. 463; Accord. Shackleton v. Sutcliffe, 1 De G. & Sm. 609. As to the effect of a misleading conveyancing condition, see Broad v. Munton, 12 Ch. D. 131, C. A. ; In re Marsh and Earl Granville, 24 Ch. D. 11, C. A. A vendee of land described as copyhold is not compellable to accept freehold, notwithstanding a provision that errors in description should not vitiate the sale. Ayles v. Cor, 16 Beav. 23. Turquand v. Rhodes, 37 L. J., Ch. 830. An agent employed to find a purchaser has authority to describe the property, and state any fact or circumstance relating to the value, so as to bind the vendor. Mullens v. Miller, 22 Ch. D. 194. See also Brett v. Clowser, 5 C. P. D. 376.

See

When more than one person is employed by the vendor to bid at a sale by auction this will be deemed a fraud. Crowder v. Austin, 3 Bing. 368; Wheeler v. Collier, M. & M. 126. And, the employment of a single puffer when the sale is "without reserve,” avoided it at law. Thornett v. Haines, 15 M. & W. 367. And, where the sale is not advertised as "without reserve," the employment of a single puffer, unknown to the bidders, is evidence for the jury to sustain the defence of fraud. Green v. Baverstock, 14 C. B., N. S. 204; 32 L. J., C. P. 181. 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.

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, supra.

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