This section is from the book "Dart's Treatise On The Law And Practice Relating To Vendors And Purchasers Of Real Estate", by J. Henry Dart . Also available from Amazon: A treatise on the law and practice relating to vendors and purchasers of real estate.
As a general rule, the mutual engagements of the parties will be considered dependent on each other; and either must (unless discharged therefrom by the other (x) ) perform his liabilities before he seeks to enforce his rights under the contract. Hence, on the one hand, the purchaser cannot, in general, sue upon the agreement without tendering the at p. 618; Tew v. Jones, (1844) 13 M. &W. 12; 14 L.J. Ex. 94; Turner v. Cameron's Co., (1850) 5 Ex. 932; 20 L. J. Ex. 71.
Performance of contract on part of plaintiff, how far necessary to support action.
(q) See Doe v. Mills, (1834) 4 N. & M. 25, 29 ; and Hull v. Vaughan, (1818) 6 Pr. 157. See the doctrine of estoppel between landlord and tenant explained, Langford v. Selmes, (1857) 3 K. & J. at p. 226 ; Morton v. Woods, (1869) L. R. 4 Q. B. 293.
(r) Doe v. Chamberlaine, (1839) 5 M. & W. 14.
(a) Doe v. Sayer, (1811) 3 Camp. 8.
(t) Doe v. Stanion, (1836) 1 M. &
W. 695, 700 ; 5 L. J. N. S. Ex. 253; Right v. Beard, (1811) 13 Ea. 210; and see Doe v. Caperton, (1839) 9 C. & P. 112 ; Doe v. Chamberlaine, sup.
(u) Marhey v. Coote, (1876) 10 I. R. C. L. 149.
(x) Jones v. Barhley, (1781) Doug. 684 ; Laird v. Pirn, (1841) 7 M. & W. 474 ; Cort v. Ambergate B. Co., (1851) 17 Q. B. 127; 20 L. J. Q. B. 460. If the agreement is under seal, the discharge must also be so ; see Thames Haven Co. v. Brymer, (1850) 6 Ex. 711; 19 L. J. Ex. 231.
Conveyance (y), and the sum (if any) due in respect of the purchase-money and interest (z) ; - unless the vendor has neglected to furnish or verify (a) his abstract of title, or has shown a bad title (b), or, by conveying away the estate (c) or otherwise (d), has disabled himself from completing the contract: - and, on the other hand, the vendor, if he sue merely upon the agreement, and not upon some security which he has taken for the purchase-money (e), must have shown a good title and executed, or offered to execute (f), or have been ready and willing to execute (g), a conveyance in the terms of the contract; the rule, in the absence of stipulation, being, that the purchaser on a sale of freeholds must prepare and tender the conveyance (h) ; and even in the case of a compulsory purchase under the L. C. 0. Act, 1845, no action can be maintained for the compensation money, until a conveyance has been executed (i), whether the amount has been fixed by an award (i), or by the verdict of a jury (k) ; and the effect of ss. 49 and 50 is not to create an absolute debt due from the company to the landowner (I).
The same principle applies to every case where the mutual stipulations of vendor and purchaser are interdependent.
Mutuality of the obligations.
(y) Knight v. Crockford, (1794) 1 Esp. 190 ; Bast London Union v. Metr. It. Co., (1869) L. R. 4 Ex. 309 ; 38 L. J. Ex. 225.
(z) Sug. 14th ed. 241 ; Glazebrook v. Woodrow, (1799) 8 T. R. 3G6.
(a) See Berry v. Young, (1788) 2 Esp. 640, n. ; Clarke v. King, (1S26) 2 C. & P. 286.
(b) Seaward v. Willock, (1804) 5 Ea. 198, 202.
(e) Lovelock v. Franklyn, (1846) 8 Q. B. 371 ; 16 L. J. Q. B. 182 ; Knight v. Crockford, (1794) 1 Esp. 190.
(d) Duke of St. Albans v. Shore, (1789) 1 H. Bl. 270; Caines v. Smith, (1846) 15 M. & W. 189 ; 15 L. J. Ex. 106 ; Short v. Stone, (1846) 8 Q. B. 358; 15 L. J. Q. B. 143.
(e) Moggridge v. Jones, (1811) 14 Ea. 486; Spiller v. Westlake, (1831) 2 B. & Ad. 155.
(/) Phillips v. Fielding, (1792) 2
H. Bl. 123; Laird v. Pirn, (1841) 7 M. & W. 474.
(g) Toole v. Hill, (1840) 6 M. & W. 835, 841 ; 10 L. J. N. S. Ex. 81 ; Thames Haven Co. v. Brymer, (1850) 5 Ex. 711; cf. Sale of Goods Act, 1893, s. 28, as to chattels ; but see Sug. 14th ed. 240.
(h) Stephens v. Be Medina, (1843) 4 Q. B. 422 ; 12 L. J. Q. B. 120 ; Toole v. Hill, (1840) 6 M. & W. 835; 10 L. J. N. S. Ex. 81 ; and ef. Standley v. Hemmington, (1816) 6 Taun. 561.
(i) East London Union v. Metr. R. Co., (1869) L. R. 4 Ex. 309 ; 38 L. J. Ex. 225.
(k) Howell v.Metr. Dist.R. Co.,(1881) 19 Ch. D. 508, 515 ; 51 L. J. Ch. 158.
(I) Ib. Where the proposed vendor has no power to convey and the sale is under the L. C. C. Act, 1845, a surveyor must be appointed by a police magistrate to fix the compensation.
Thus, where by a memorandum in writing, A. agreed to sell to B. certain seams of coal, and to purchase from B. all the coals which he might require, it was held that the stipulations were concurrent, and that B. could not sue A. for not taking the coal, without averring performance of, or a readiness to perform, his part of the agreement (m). And the mutuality of the obligations may be inferred from the nature of the transaction: thus, where in an agreement for a lease it was provided that the lessors should supply to the lessees the whole of their chlorine-still waste at a given rate, and should not, during the tenancy, part with any of it to other persons, it was held that the promise to sell implied a promise to take, and that the lessees were bound to take the whole of the waste (n).
May be inferred from the nature of the transaction.
But, of course, the contract may be so worded as to show that the mutual stipulations were, to a certain extent, independent ; it being a general rule, that if a day is appointed for payment of money, or part of it, or for doing any other act, and the day is to happen, or may happen, before the thing which is the consideration of the money, or other act, is to be performed, an action may be brought for the money. or for not doing such other act, before performance ; for it appears that the party relied on his remedy, and did not intend to make the performance a condition precedent (o). For instance, where a vendor agreed that he would, within one month from the date of the contract, or from being required so to do, deliver an abstract of title and deduce a clear title, and the purchaser agreed to pay part of the purchase-money down, and the residue on or before four years after date, with interest payable half-yearly on certain fixed days, it was held, that the vendor could sue for interest which had become due, though no abstract might have been delivered (p). And, where the purchaser agreed to pay the purchase-money on a specified day, and the vendor agreed, upon payment of the money, to convey the land, it was held that the latter could sue for the money without tendering a conveyance (q).
But the contract may show that the stipulations are independent.
(m) Bankart v. Bowers, (1866) L. R. 1 C. P. 484; Atkinson v. Smith, (1845) 14 M. & W. 695 ; 15 L. J. Ex. 59.
(n) Bealey v. Stuart, (1862) 7 H. & N. 753 ; 31 L. J. Ex. 281 ; and cf. Sykes v. Dixon, (1839) 9 A. & E. 693 ; 8 L. J. Q. B. 102.
(o) Pordage v. Cole, (1669) 1 Saund. 320 b,n.; see 9 C. B. 114 ; Mattock v.
Kinglake, (1839) 2 P. & D. 343; 8 L. J. N. S. Q. B. 215 ; Porcher v. Gardner, (1849) 8 C. B. 461; 19 L. J. C. P. 63 ; and Thames Haven Co. v. Brymer, (1850) 5 Ex. 710; Wood v. Copper Miners' Co., (1854) 14 C. B. 428; 23 L. J. C. P. 209 ; see, too, Roberts v. Brett, (1865) 11 H. L. C. 337; and see notes to Cutter v. Powell, (1795) 2 Sm. L. C. 11th ed. 1.
If one of the parties to the contract absolutely refuses to perform, or renders himself incapable of performing, his side of it, this amounts to an immediate breach ; and he may be sued at once, though the day fixed for performance has not arrived (r); but it does not follow that, in every case, such refusal or disability of one party to complete will dispense with the performance by the other of his obligations under the contract (s). The breach of one stipulation does not necessarily carry with it even an implication of an intention to repudiate the whole contract (t).
Refusal by either party to perform is an immediate breach.
(p) Bicker v. Jackson, (1848) 6 C. B. 103, 114 ; and see Sibthorp v. Brunei, (1849) 3 Ex. 826 ; Lloyd v. L., (1837) 2 M. & C. 192; 6 L. J. N. S. Ch. 135 ; Wilks v. Smith, (1842) 10 M. & W. 355; 11 L. J. Ex. 365 ; Friar v. Grey, (1850) 5 Ex. 584 ; (1854) 4 H. L. C. 565 ; Lindsay v. London and Portsmouth R. Co., (1850) 1 Pract. R. 529, 537; but see Manby v. Cremonini, (1851) 6 Ex. 808; Bland v. Crowley, (1851) ib. 622 ; 20 L. J. Ex. 218 ; Wcedon v. Woodbridge, (1849) 13 Q. B. 462 ; Neale v. Ratcliffe, (1850) 15 Q. B. 916; 20 L. J. Q. B. 130; Eastern C. R. Co. v. Philipson, (1855) 16 C. B. 2 ; 24 L. J. C. P. 140 ; Stratton v. Pettit, (1855) 16 C. B. 420; 24 L. J. C. P. 182 ; Bond v. Rosling, (1861) 1 B. & S. 371 ; 30 L. J. Q. B. 227; Phelps v. Prothero, (1855) 3 C. L. R. 906 ; see S. C, in Equity, (1855) 7 D. M. & G. 722 ; Anderson v. Baigent, (1856) 4 W. R. 265.
(q) Yates v. Gardiner, (1851) 20 L. J. Ex. 327.
(r) Hochster v. Be la Tour, (1853) 2 E. & B. 678 ; 22 L. J. Q. B. 455 ; Frost v. Knight, (1871) L. R. 7 Ex. 1ll ; 41 L. J. Ex. 78 ; Synge v. S., 1894, 1 Q. B. 466 ; 63 L. J. Q. B. 202 ; and ef. Johnstone v. Milling, (1886) 16 Q. B. D. 460 ; 55 L. J. Q. B. 162; Smith v. Butler, 1900, 1 Q. B. 694 ; 69 L. J. Q. B. 521.
(s) Reid v. Hoskins, (1856) 6 E. & B. 953 ; 26 L. J. Q. B. 5. See notes to Pordage v. Cole, (1G69) 1 Wma. Saund. 319 h; Freeth v. Burr, (1874) L. R. 9 C. P. 208 ; 43 L. J. C. P. 91 ; Mosey Steel Co. v. Nay lor, (1884) 9 A. C. 434 ; 53 L. J. Q. B. 497 ; Hembrow v. Talbot, (1892) 36 Sol. J. 712 ; Rhymney Railway v. Brecon and Merthyr, T. J. R. Co., (1900) 69 L. J. Ch. 813; Neil v. Armstrong, 1895, 2 Q. B. 70, 418; 65 L. J. Q. B. 7.
(t) Cornwall v. Henson, 1900, 2 Ch. 298, 303; 69 L. J. Ch. 581.
Neither the assignment of the benefit of the contract by one of the parties (u), his bankruptcy (.r), or death (y), or where one of the parties is a partnership firm an alteration in the firm's constitution (z) will necessarily determine the contract.
Where a bill or note is given as the consideration for a lease, and the lessee is let into possession, the refusal of the lessor to execute the lease is no defence to his action on the bill or note ; for he is not bound to execute till the price is paid, and as the lessee was let into possession the consideration fails in part only ; and the sum to be allowed for such failure is matter not of mere calculation, but of unliquidated damages (a). On a sale, the fact of no conveyance having been executed, is no defence to an action on a bill or note for the purchase-money; at least, if it was not the vendor's fault that he did not convey (b) ; but it is an answer to the action that the purchaser had a right to rescind the contract, and had in fact rescinded it (c).
Action on a bill or note for consideration -what a defence to.