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Sale of Land (a).
Action by Vendor of Land and House against Purchaser for

Breach of Contract claiming Damages for interim Deprecia

tion of Value. Against

1. The plaintiff is a gentleman and magistrate residing at purchaser for non- Ullathorne, in the county of — The defendant is also a completion gentleman residing at the same place. of contract.

(a) In actions by a vendor of land to recover the purchase-money, the statement of claim must show-1. That there was a binding contract ; 2. The performance by himself of all conditions precedent; and 3. The

default of the defendant, Contracts The 4th section of the Statute of Frauds provides (inter alia) that relating to no action shall be brought whereby to charge any person upon any land must special contract or sale of lands, tenements, or hereditaments, or any be evi. interest in or concerning them, unless the agreement upon which such denced by action shall be brought, or some memorandum or note thereof, shall be writing in writing, and signed by the party to be charged therewith, or some

other person thereunto by him lawfully authorised.

Where, as would now scarcely ever happen, an estate was actually conveyed without the purchase-money having been paid, the vendor

could claim the amount of the purchase-money, either by a special inWhen

dorsement on his writ; or in a statement of claim setting out the transplaintiff

action, In the ordinary case of the contract falling through for some can pro

cause or another, before an actual conveyance, it would seem that the ceed by a

plaintiff's claim must sound in damages for breach of the contract by specially

ihe defendant, the measure of damage being the loss sustained by reason endorsed of the breach, as costs incurred and the diminution in value of the land. writ. (Laird v. Pim, 7 M. & W. 474.) Such a claim, therefore, could not be

the subject of a special indorsement.

In an action by the purchaser against the vendor for not completing What the purchase, the former can claim as damages the costs of the agreedamages ment, investigating the title, searching for judgments and of endeavouring, can be to procure a good title, and the deposit with interest. (Hodges v. Earl of sonyht.

Lichfield, 1 N. C. 492 ; Hanslip v. Padrick, 6 Exch. 615 ; Sug. Vendors, &c., 14th ed., 362.) In cases where it is decided that the plaintiff is entitled to damages for money or expenses incurred, it is sufficient if he has become liable for them. (Richardson v. Chason, 10 Q. B.

756.) What The purchaser cannot recover expenses previously to entering into the damages contract, nor expense of a survey he has made before he knows the title, cannot be nor the expense of a conveyance drawn in anticipation (Hodges v. recovered. Earl of Lichfield, supra; and see Godrin v. Francis, L. R. 5 C. P. 295 ;

and Gray v. Forler, L. R. 8 Ex. 249); nor expenses incurred in preparing a conveyance after a defect in the title was discovered (Pounsett v. Fuller, 18 C. B. 660 ; 25 L. J. C. P. 145); or in further negotiations. (Sikes v. Wild, 30 L. J. Q. B. 325 ; S. C. ap. 32 L. J. Q. B. 375.) Where the purchaser has brought a suit for specific performance, which was dismissed for want of title, it was held he could not recover his costs in such suit. (Malden v. Fyson, 11 Q. B. 292.) And where the vendor brought such a suit and it was dismissed with costs for want of title, the

2. By an agreement dated the 4th of August, 1877, it was Against agreed by and between the plaintiff and the defendant, that the for non

purchaser plaintiff should sell to the defendant, and the defendant purchase completion

of contract. from the plaintiff, a piece or parcel of land situate near Ullathorne aforesaid, together with the dwelling-house built thereon, for the sum of £10,000, upon the following among other terms and conditions not material to this action, that is to say :That the defendant should pay the sum of £500 as a deposit and in part payment of the said sum of £10,000 on the signing of the said contract, and should pay the balance or remainder of

not gene

purchaser could not recover his extra costs in such suit. (Ilodges v.

What Earl of Lichfield, supra.) A lessee with an option to purchase cannot

damage3 recover expenses in improving the land before exercising his option cannot be where the title proves bad. (Worthington v. Warrington, & C. B. 134.)

recovered. Where the defendant failed to carry out an agreement to demise certain land and deduce a good title, the intended lessee was held not entitled to recover the expense of raising the purchase-money, or the interest thereon, while awaiting completion, nor the expense of forming and registering a company for the purpose of carrying on certain works on the land, nor the profits that would have accrued to the company from the lease, or to the plaintiff as their solicitor in carrying their project into effect, such heads of expense being either premature or merely speculative. (Hanslip v. Padwick, supra.) The principle seems to be now settled that a purchaser cannot re

A cover damages for the loss of his bargain, i. e., the difference between chaser can. the contract price and the price which he could get for it on resale, unless the vendor has been guilty of fraud in the transaction.. (Flu- rally have reau v. Thornhill, 2 Wm. Bl. 1078; Sug: Vend. & Purch. 14th ed. 358 (c); damages Pounsett v. Fuller, supra ; Sikes v. Wild, supra; Bain v. Fothergill

, for the loss L. R. 6 Ex. 59 ; aff. L. R. 7 H. L. 158.) Where, however, though the of bis bardefendant has not been guilty of fraud in the contract, but by deliberately

gain. failing to give the plaintiff possession, prevents an advantageous resale by the latter, he is liable to compensate the plaintiff for the loss of his bargain. See E ell v. Fitch, L. R. 3 Q. B. 314, affirmed in Ex. Ch., L. R. 4 Q. B. 659, which does not appear to be disturbed by the decision in Bain v. Fothergill, supra.

Where the purchaser is held entitled to recover for the loss of his bargain, the measure of damages is the difference between the contract price and the market price at the time of the breach; and the price at which the estate was afterwards sold is primâ facic evidence of the market value. (Engell v. Fitch, supra; and see Godwin v. Frances, supra.)

The parties may, in appropriate language, name a sum which is to be Effect of paid as liquidated damages by either of them on his failing to carry out

agreeing his contract, which of course would include a failure to show a good title ; and in such a case the sum named can be recovered. (Lea v. Whitaker, L. R. 8 C. P. 70.) The mere fact of designating the sum

dated named as “ liquidated damages” will not necessarily make it such ; and

damages." where the contract contains a variety of stipulations of different importance, and a sum is named to be paid on breach of any of them as liquidated damages, this will be treated as a penalty. (Magee v. Lavell, L. R. 9 C. P. 107, 111.)

on a sum as

" liqui

17

Against the said purchase-money on the 8th of October, 1877, the date purchaser for non

agreed on in the said contract for completing the same ; and completion it was further agreed that the plaintiff should deduce a good of contract.

title to the said land and dwelling-house on or before the 1st day of October aforesaid, and on payment of the said balance or remainder of the said purchase-money as aforesaid, should execute a proper and valid conveyance of the said premises to the defendant.

3. All conditions were fulfilled and all things happened and all times elapsed necessary to entitle the plaintiff to a performance of the said agreement by the defendant on his part.

4. The defendant has not paid the said balance or remainder of the said purchase-money, and has refused to complete the said contract.

5. The plaintiff has by reason of the defendant's default to perform his contract as in the last paragraph mentioned lost the benefit of the expenses incurred by him in preparing to perform the said contract.

6. After the making of the said contract and before the said breach the guardians of the poor for the parish of Ullathorne aforesaid duly resolved on erecting, and did erect, a hospital for pauper patients suffering from fever and other infectious diseases, in the close neighbourhood of the said land, whereby the same became very much deteriorated in value.

The plaintiff claims :-
(1.) £215 on account of the said expenses.
(2.) £2000 on account of the said depreciation in the value

of the said land and dwelling-house.

Claim against vendee of mill and plant for not completing.

Action by Vendor of Mill and Plant and of Drvelling-house

against Vendee for not appointing Valuer to value and no!

completing. 1. At the time of the making of the contract hereinafter set forth, the plaintiff was and still is the owner of the Tees Mill at B., in the county of D., and of the machinery therein, and of the other property mentioned in the said contract.

2. On or about the 5th December, 1876, it was (inter alia) agreed by and between the plaintiff and the defendant that the plaintiff should sell and the defendant should purchase the Tees

Mill aforesaid, and that the price to be paid by the defendant for Claim

against the same should be fixed by two valuers, one Mr. J. B. acting

purchaser on behalf of the plaintiff, and the other Mr. C. M. acting on for nonbehalf of the defendant.

completion

of a con3. All conditions were fulfilled necessary to entitle the plain- tract of

sale. tiff to have the said contract performed by the defendant and to sue for the breaches hereinafter alleged.

4. The plaintiff duly instructed and requested his valuer mentioned in the said contract to proceed with the valuation of the said mill and other property, and requested the defendant similarly to instruct and request his said valuer to value on his the defendant's behalf, but the defendant neglected and refused and still neglects and refuses to instruct, request, or permit his said valuer to value the said mill and other property, and has thereby prevented and still prevents any valuation of the said property from being made.

5. By reason of the defendant's said breach of contract the sale of the said mill and property has failed to take effect, and the plaintiff has been and is still deprived of the purchase-money which ought to have been paid according to the terms of the said contract. The plaintiff has been unable since the defendant's said breach of contract to find a purchaser for the said mill and property, and will be unable to sell the same otherwise than by public auction. The amount which could or can be obtained for the said mill and property if so sold is much less than the amount at which the same would have been reasonably and fairly valued as between the plaintiff and the defendant under the terms of the said contract. The plaintiff has incurred expense in endeavouring to induce the defendant to perform his said contract, and in taking care of the said mill and property and keeping the same in repair, and the same has notwithstanding materially diminished in value since the time at which the valuation under the said contract ought to have been complete.

The plaintiff claims £10,000 damages.

Action for Breach of Contract to deduce a good Title and convey

by a specified Day, Time being made of the Essence of the

Contract. 1. The plaintiff is The defendant is

оо

Claim for breach of contract to deduce a good title, &c.

2. By an agreement bearing date the — of July, 1877, it was agreed by and between the plaintiff and the defendant that the defendant should sell to the plaintiff, and that the plaintiff should purchase from the defendant, a messuage and land situate near Gravesend, in the county of — and known as “The Elms,” at the price of £10,000, upon the following conditions and terms (among others not material to this action), that is to say :That the plaintiff should pay the defendant a deposit of £ of the said price on or immediately after signing the said agreement, and the balance on the 31st of August, 1877, on which day the said purchase should be completed, and that the defendant should deduce a good title to the said messuage and lands on or before the 1st of August, 1877, and on payment of the balance of the said purchase-money should execute to the plaintiff a proper conveyance of the said messuage and lands, and it was stipulated that time should be of the essence of the said contract.

3. The plaintiff paid the said deposit on the signing of the said agreement.

4. All conditions were fulfilled and all things happened and all times elapsed necessary to entitle the plaintiff to have the said agreement performed by the defendant.

5. The defendant did not deduce a good title to the said messuage and land on or before the said Ist of August, 1877, and did not execute to the plaintiff such conveyance as aforesaid on or before the said 31st of August, 1877.

6. The plaintiff in consequence of the defaults mentioned in the preceding paragraph lost the use of the money paid by him as such deposit as aforesaid, and of other moneys provided by him for the completion of the said purchase, and has lost the expenses incurred by him in investigating the title of the defendant and in preparing to perform the agreement on his part, and has incurred expense in endeavouring to procure the performance thereof by the defendant.

The plaintiff claims :-
(1.) £1000 damages.
(2.) Such further or other relief as the nature of the case

may require.

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