1. Purchaser's remedies against vendor.

2. Vendor's remedies against purchaser.

3. Plaintiff how far bound to perform his part of agreement before action.

4. As to the agreement - how far affected by parol evidence.

5. Production of, when compelled.

6. Grounds of defence - the agreement being admitted.

7. Action, when restrained in Equity.

8. General matters relating to the action.

(1.) We have, in the preceding pages, discussed those matters which have appeared most naturally to present themselves for consideration, in cases where an ordinary contract between vendor and purchaser is perfected in the usual way by conveyance of the estate and payment of the purchase-money; without the course of events being disturbed by litigation, either actual or threatened, between the parties. It remains to consider the respective rights and liabilities of the parties, and their representatives, in cases where either party disputes the validity of the contract, or, on other grounds, refuses, neglects, or is unable to perform it; and how such rights and liabibties are varied, by the circumstance of the sale being made under a decree or order of a Court of Equity.

Where there is default on the part of the vendor, the purchaser, as a general rule, may either rescind the contract and sue for the deposit, as for money had and received; or may affirm the contract, and sue for damages upon the ground of its non-performance (a); adding the common money count in respect of the deposit (if any has been paid): but he cannot, it seems, rescind the contract if the parties cannot be put in statu quo; as where, upon an agreement for a lease, the intended lessee has been in possession and enjoyed part of the term (b).

Vendor in default, purchaser's right of action.

Where the contract, not being under seal, has been entered into by an Agent, the principal may sue upon it in his own name (c); unless the agent be specially described or referred to in the contract, in terms inconsistent with the idea of agency (d): so, also, a purchaser, who has paid the deposit through an agent, can sue for it in his own name, although the fact of the agency were undisclosed (e): and, upon similar principles, it has been held that a nominal agent cannot sue, without first disclosing that he is in fact the principal (f): where an agent contracts apparently on his own account, an action on the contract may be brought against either him or his principal (g): and if the contract be under seal, the agent, although described as such, appears to be personally liable (h); but if it be not under seal, the agent, describing himself as such and naming his principal, is not personally liable unless he had no authority to make the contract, or in making it exceeded his authority (i): and even if a person, without authority, contract in the name of and as agent for another, it appears that he cannot be sued on the agreement, unless he be shown to have been really the principal; although he may probably be liable in an action for damages for the misrepresentation (k). Where money has been properly received by an agent, the action to recover it must be brought against the principal (l): but a sum paid to an agent, under protest, in respect of a wrongful claim, may, it appears, be recovered from the agent (m).

Agents may sue and be sued. when.

(a) See Moses v. Macferlan, 2 Burr. 1011, and Dutch v. Warren, there cited; Farrer v. Nightingal, 2 Esp. 639; Squire v. Tod, 1 Camp. 293.

(6) See Hunt v. Silk, 5 East, 449; and a like decision has been recently come to where possession had been taken under a contract for sale of the fee simple; Blackburn v. Smith, 2 Exch. R. 783: but see, contra, on the special wording of the agreement, Wright v. Colls, 13 Jur. 1056, C. P.: but mere depreciation of the property is no defence, if the purchaser has not had possession: Wilkinson v. Lloyd, 7 Q. B. 27.

(c) See 5 M. & Sel. 388, 391; Higgins v. Senior, 8 Mee. & W. see 844; Humphrey v. Lucas, 2 Car. & K. 152.

(d) See Humble v. Hunter, 12 Q. B. 310, where the agent was described as " owner."

(e) Duke of Norfolk v. Worthy, 1 Camp. 337.

(f) Bickerton v. Burrell, 5 M. & Sel. 383: but see the remarks of the Court in Rayner v. Grote, 15 Mee. & W. 366.

(g) Higgins v. Senior, 8 Mee. & W. 844; Jones v. Littledale, 6 Ad. & E. 486.

(h) Appleton v. Binks, 5 East, 148.

In an action for money had and received, rescinding the contract, interest upon the deposit may, under a late Act, be recovered from such time as demand of payment was made in writing giving notice to the vendor that interest would be claimed from the date of the demand until payment (n); but it does not appear to be otherwise recoverable (o). Of course, the purchaser can make no claim in respect of any increase in the value of the estate; and it would seem, upon principle, to be equally clear that he cannot be prejudiced by any diminution in its value; although some old authorities leave the point doubtful (p).

In an action for damages, affirming the contract, the purchaser, if the contract be proved to have been binding upon the vendor, can, (under special counts,) recover his expenses of investigating the title (q), of searching for incumbrances, and comparing the abstract with the deeds (r), of preparing the conveyance, (if the sale go off by reason of a concealed incumbrance) (s), and interest upon his deposit (t), and upon the residue of his purchase-money, if lying idle (u); and he may recover the deposit itself under a common money count: nor will a Court of Equity, pending a suit by the vendor for specific performance, grant an injunction to restrain an action for the deposit (w), unless the vendor consent to its coming into Court (x); but he cannot recover expenses incurred prior to the contract, or the costs of a survey (y), or of preparing a conveyance (z), (except under special circumstances,) or any allowance for loss by selling out of the funds (a), or for money laid out in repairs (b) or improvements (c), or the difference between his costs taxed as between party and party and his costs as between solicitor and client in an unsuccessful suit by the vendor for specific performance (d), or the costs of a suit by himself (the purchaser) for specific performance when the bill is dismissed without costs on the Master reporting against the title (e).

What purchaser can recover in action after rescinding contract.

What he can recover in action for damages founded on contract.

(i) Downman v. Jones, 9 Jur. 454, Exch. Ch.

(k) Jenkins v. Hutchinson, 13 Jur. 7G3; 18 L. J. 274, Q. B.

(l) Duke of Norfolk v. Worthy, 1 Camp. 337, and Edden v. Read, 3 Camp. 339; Bamford v. Shuttle-worth, 11 Ad. & E. 926; Hurley v. Baker, 16 Mee & W. 26: but, as we have seen (supra 82) an auctioneer is liable to be sued for the deposit; his character being rather that of stakeholder than of a mere agent of the vendor.

(m) Smith v. Sleap, 12 Mee. & W. 585.

(n) See 3 & 4 Will. IV. c. 42, s. 28.

(o) Fruhling v. Schroeder, 2 Bing. N. C. 77.

(p) See Sug. 256.

(q) Including costs due, but not actually paid to his solicitor, Richardson v. Chasen, 10 Q. B. 756: and a letter from the purchaser's solicitor to the vendor's solicitor stating that unless certain evidence is supplied, and which is not supplied, the purchase must go off, does not affect the right to recover such expenses; Hall v. Betty, 5 Scott, N. R. 508.

(r) Hodges v. Lord Litchfield, 1 Bing. N. S. 492.

(s) Sug. 427.

(t) Hodges v. Lord Litchfield, ubi supra.

(u) Sherry v. Oke, 3 Dowl. P. C. 349, 361.

(w) Tanner v. Smith, 4 Jur. 310.

(x) S. C. Annesley v. Muggridge, 1 Madd. 593.

(y) Hodges v. Lord Litchfield, ubi supra.

(z) S. C. '

(a) Flureau v. Thornhill, 2 W. Bla. 1078.

(b) Brett v. Ellis, Sug. Append. No. 4.

(c) Worthington v. Warrington, 18 L. J., N. S., C. P. 350.

(d) Hodges v. Lord Litchfield, ubi supra.

(e) Maiden v. Fyson, 11 Q. B. 292.

As a general rale, a purchaser is only entitled to nominal damages for the loss of his bargain, where the vendor, through want of title or otherwise (f), is bond fide (g) unable to convey the estate (h); and where a purchaser, upon the delivery of an abstract showing an apparently good title, resold at a profit, and it subsequently appeared, on comparing the abstract with the deeds, that the title was defective, he was not allowed the expenses of the resale; there being nothing more on the part of the vendor than negligence in the preparation of the abstract, and the purchaser himself being equally negligent in reselling before he had tested its accuracy (i). If, however, there be actual mala fides (k) on the part of the vendor, or (it would appear,) if he sell the estate under the knowledge that he is not in a position to insure a title, the case may be different; e.g., where A. having a mere agreement for the purchase of an estate, sold it to B., who resold it at a profit to C., and then the whole matter went off through a want of title in the original vendor, it was held that B.'s claim was not to be restricted to nominal damages (l); it does not, however, appear upon what principle the damages were assessed (m).

Upon the death of the purchaser, the right to sue in respect of any damages which may have been sustained by his personal estate, - e.g., loss of interest on the deposit, or the expenses of investigating the title, - descends upon his personal representative (n); and no action upon the agreement can be brought by the heir (o): but his only resource is a Suit in Equity.

No damages for loss of bargain, unless under special circumstances.

Death of purchaser, right of action goes to personal representatives.

(f) See Tyrer v. King, 2 Car. & K. 149: a case of a sale by an agent after the estate had been sold by his principal.

(g) See 10 B. & C. 416, 421.

(h) Flureau v. Thornhill, ubi supra; and see Clare v. Maynard, 6 Ad. & E. 519.

(i) Walker v. Moore, 10 B. & C. 416.

(k) S. C

(l) Hopkins v. Grazebrook. 6 B. & C. 31; Robinson v. Harman, 1 Exch. 850; but see Brett v. Ellis, Sug. Append. No. 4.

(m) See 10 B. 8c C. 420; and see Worthington v. Warrington, 18 L. J., N. S., C. P. 350.

(n) Orme v. Broughton, 10 Bing. 533.

Upon the death of the vendor, his personal representatives alone are liable to an action at law, if, as is usually the case, the agreement is not under seal.