Claim upon accepted and received, the said iron bars mentioned in the said

contracts

of sale

varied

before

breach.

bought note.

3. On or about the 27th of May, 1876, an agreement was made and entered into between the plaintiffs and the defendants whereby the plaintiffs agreed to manufacture and sell and deliver to the defendants, and the defendants agreed to buy, receive, and pay for certain iron bars mentioned and specified in a certain bought note signed by the defendants, and by them delivered to the plaintiffs, upon the terms therein mentioned, which said bought note was and is in the words and figures following, that is to say.

[Here follows the bought note.]

4. After the making of the last-mentioned contract, and before breach thereof, it was agreed between the plaintiffs and the defendants that the said contract should be varied in this— Firstly, that instead of the delivery of the said iron bars being made at Hull, as in the said contract mentioned, the delivery thereof should be made at the works of the plaintiffs, and that the difference in the price of the carriage thereof, viz., 6s. 8d. a ton, should be allowed by the plaintiffs in account with the defendants; and in this-Secondly, that the time for such delivery should be the 11th day of July, 1876, and not the date in that behalf mentioned in the said original contract, after the making of the said original contract, and after the same had been varied as aforesaid.

5. The said contract was, on or about the 6th day of July, 1876, further varied by a letter written and handed by the plaintiffs to the defendants, which letter was and is in the words and figures following, that is to say.

[Here follows the letter, which contained numerous terms varying the contract in question.]

The defendants agreed and assented to the terms of the letter lastly hereinbefore set forth, and expressed such assent in writing under their hand.

6. The said contract, so varied as aforesaid, was acted upon by the plaintiffs and the defendants, and the plaintiff's sold and delivered to the defendants, and the defendants accepted and received, the said iron bars in the said contract so varied as aforesaid.

contracts

7. The plaintiffs did all things necessary, and all conditions Claim upon were fulfilled and all things happened and all times elapsed of sale necessary to entitle the plaintiffs to have the defendants pay varied the plaintiffs for all the iron bars aforesaid, and to maintain this breach. action for the breaches hereinafter mentioned.

8. The defendants have broken their said contract in this, that although the plaintiffs are entitled to recover from the defendants, and the defendants are indebted to the plaintiff's in the sum of £498 as for goods sold and delivered by the plaintiffs to the defendants, after allowing to the defendants the sums of £2183 and £883 brought into Court since the action was commenced in respect of the same, yet the defendants have not paid the said balance nor any part thereof to the plaintiffs. The plaintiff's claim £498.

Statement of Defence.

before

1. The defendants deny each and every the allegations con- Defence. tained in paragraphs 2 and 6, of the statement of claim, but on the contrary, they say that the plaintiffs failed to fulfil the said contracts.

2. The defendants did by their inspector, in accordance with the terms of the said contracts, inspect the iron bars, and their inspector did, in accordance with the terms of the said contracts, reject a large portion thereof, which said portion, by the terms of the said contracts, the plaintiffs were bound to withdraw, but nevertheless the plaintiffs did surreptitiously, without the knowledge or assent of the defendants or their inspector, load and forward to the defendants large quantities of the iron bars which had been so rejected, and also large quantities of iron bars which had not been submitted for inspection in accordance with the terms of the said contract.

3. With regard to paragraph 8 of the statement of claim, the defendants deny that they have broken either or any of their contracts, and say that they have paid the sums admitted in full discharge of the plaintiffs' claim, and they deny that they are indebted in any further sum or sums to the plaintiffs, but on the other hand, they say that the value of the iron supplied to them by the plaintiffs was less than the amount of the plaintiffs' claim.

Against purchaser for non

Sale of Land (a).

Action by Vendor of Land and House against Purchaser for Breach of Contract claiming Damages for interim Depreciation of Value.

1. The plaintiff is a gentleman and magistrate residing at Ullathorne, in the county of The defendant is also a

completion gentleman residing at the same place.

of contract.

Contracts

relating to land must

be evi

denced by writing.

When plaintiff can pro

ceed by a specially endorsed

writ.

What damages can be sought.

What damages cannot be recovered.

(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.

The 4th section of the Statute of Frauds provides (inter alia) that no action shall be brought whereby to charge any person upon any special contract or sale of lands, tenements, or hereditaments, or any interest in or concerning them, unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be 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 indorsement on his writ; or in a statement of claim setting out the transaction. In the ordinary case of the contract falling through for some cause or another, before an actual conveyance, it would seem that the plaintiff's claim must sound in damages for breach of the contract by the defendant, the measure of damage being the loss sustained by reason of the breach, as costs incurred and the diminution in value of the land. (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 the purchase, the former can claim as damages the costs of the agree ment, investigating the title, searching for judgments and of endeavouring to procure a good title, and the deposit with interest. (Hodges v. Earl of Lichfield, 1 N. C. 492; Hanslip v. Padwick, 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.)

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

for non

of contract.

2. By an agreement dated the 4th of August, 1877, it was Against agreed by and between the plaintiff and the defendant, that the purchaser plaintiff should sell to the defendant, and the defendant purchase completion 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

purchaser could not recover his extra costs in such suit. (Hodges v. Earl of Lichfield, supra.) A lessee with an option to purchase cannot recover expenses in improving the land before exercising his option where the title proves bad. (Worthington v. Warrington, 8 C. B. 134.) 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.)

(Flu

The principle seems to be now settled that a purchaser cannot recover damages for the loss of his bargain, i. e., the difference between 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. reau v. Thornhill, 2 Wm. Bl. 1078; Sug. Vend. & Purch. 14th ed. 358 (e); Pounsett v. Fuller, supra; Sikes v. Wild, supra; Bain v. Fothergill, L. R. 6 Ex. 59; aff. L. R. 7 H. L. 158.) Where, however, though the defendant has not been guilty of fraud in the contract, but by deliberately 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 Engell 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 prima facie 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 paid as liquidated damages by either of them on his failing to carry out 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 named as "liquidated damages" will not necessarily make it such; and 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.)

of contract.

Against the said purchase-money on the 8th of October, 1877, the date purchaser agreed on in the said contract for completing the same; and for noncompletion it was further agreed that the plaintiff should deduce a good 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.

Claim against

vendee of mill and plant for

not completing.

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.

Action by Vendor of Mill and Plant and of Dwelling-house against Vendee for not appointing Valuer to value and not 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