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.
In the preceding pages matters have been discussed relating to 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.
Purchaser's remedies against vendor.
Where there is default on the part of the vendor, the purchaser, as a general rule, may either rescind the contract, though under seal (a), and sue for the deposit (b) as for money had and received to his, the purchaser's, use (c) ; or may affirm the contract, and sue for damages upon the ground of its non-performance (d), adding a claim for money had and received in respect of the deposit (if any has been paid) (e) ; and he has a good defence to an action by the vendor upon an I 0 U for part of the purchase-money (/) :
Vendor in default, purchaser's rights of action.
(a) Greville v. Da Costa, (1797) Tea. A. C.113.
(b) Gosbell v. Archer, (1835) 4 N. & M. 485; 4 L. J. N. S. K. B. 78; and for expenses, etc, semble, Ik Bernard;/ v. Harding, (1853) 8 Ex. 822 ; 22 L. J. Ex. 340.
(c) See inf. p. 990.
(d) See Moses v. Maeferlan, (17G0) 2 Burr. 1005, 1011, and Dutch v.
Warren, there cited; Farrar v. Night-ingal, (1798) 2 Esp. 639 ; Squire v. Tod, (1808) 1 Camp. 293.
(e) Though part of the subject-matter of the contract has been enjoyed ; see Wright v. Colls, (1849) 8 C. B. at p. 158 ; 19 L. J. C. P. CO ; and inf. p. 989 el seq.
(f) Wihon v. W., (1854) 14 C. B. 616; 23 L.J. C. P. 137.
But he cannot, it seems, rescind the contract unless restitutio in integrum can substantially be made (g).
Where the contract, not being under seal, has been entered into by an agent, the principal may sue upon it in his own name (h) ; unless the agent is specially described or referred to in the contract, in terms inconsistent with the idea of agency (i) : and a purchaser who has paid the deposit through an agent, can sue for it in his own name, though the facts of the agency were undisclosed (k) ; and, upon similar principles, a nominal agent cannot sue, without first disclosing that he is in fact the principal (/) ; and his right to sue is even then doubtful, in cases where the skill or solvency of the person who is named as the principal may reasonably be considered as a material ingredient in the contract; unless the contract has been partly performed with a knowledge by the defendants of who is the real principal (m). A person contracting as agent can, if his authority is repudiated by the principal, and the other party with knowledge of this proceed with the contract, sue in his own name (n) ; and a person contracting as agent for an unnamed and unknown principal, may sue in his own name, unless the defendant contracted upon the faith of the agency (o).
Principal may sue in his own name.
Agents may-sue, when.
(g) Erlanger v. New Sombrero Co., (1878) 3 A. C. 1218 ; 48 L. J. Ch. 73 ; Fry, 4th ed. 323.
(h) Story, Ag. s. 160; and see Sims v. Bond, (1833) 5 B. & Ad. 389, 393 ; notes to Thomson v. Davenport, (1829) 2 Sm. L. C. 11th ed. 389.
(i) See Humble v. Hunter, (1848) 12 Q. B. 310 ; 17 L. J. Q. B. 350, where the agent was described as " owner."
(k) Duke of Norfolk v. Worthy, (1808) 1 Camp. 337; Story, Ag. s. 435. But of course the principal's rights are subject to any equities which may have arisen between the vendor and the agent, prior to disclosure of the fact that the agent is merely an agent: George v. Clagett, (1797) 2 Sm. L. C. 11th ed. 138, and notes thereto. The mere fact that the agent is known to be such, although the name of the principal has not been disclosed, is, it is conceived, sufficient to exclude such equities: Irvine v. Watson, (1880) 5 Q. B. D. 414 ; 49 L. J. Q. B. 531; Mildred v. Maspons, (1883) 8 A. C. 874 ; 53 L. J. Q. B. 33.
(I) Bickerton v. Burr ell, (1816) 5 M. & S. 383 ; Story, Ag. s. 406, and American cases there cited.
(m) See Rayner v. Grote, (1846) 15 M. & W. 359, 365, 366; 16 L. J. Ex. 79.
(n) Langstroth v. Toulmin, (1822) 3 Stark. 145.
(o) Schmaltz v. Avery, (1851) 16 Q. B. 655; 20 L. J. Q. B. 228. As
1). Vol. It
The considerations as to personal character or responsibility which often arise in respect to contracts for the performance of services, or the sale of goods, can seldom have much weight in the case of a contract for the sale of land. Where an agent contracts apparently as principal - and prima facie, a person, who signs in his own name, contracts as principal (p) - an action on the contract may he brought against either him or his principal (q) ; but the plaintiff must, within a reasonable time, elect against which of them he will proceed (r), and having once made his election cannot afterwards proceed against the other party (s). If the contract is under seal, the agent, though described as such, appears to be personally liable (f), but if it is not under seal, the agent describing himself and signing 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 (u); 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 is shown to have been really the principal: but if, professing to have authority, he enters into a contract, he will be liable to the person who is not aware of his want of authority and with whom he contracts, for damages sustained by reason either of any express false assertion of authority, untrue to his knowledge (x), or of breach of the implied warranty of authority (y) : and it is immaterial whether the supposed agent knew of the defect of his authority or not (z), but in order to make himself liable there must be a misrepresentation in fact believed in by the person to whom it is made, and not merely a mistake or misrepresentation in law (a) ; the position of a person acting as a public servant on behalf of the Crown is an exception (b). Where the authority of an agent has been revoked, as, for example, by death of the principal, or dissolution of a company, the agent acting in ignorance of such revocation will not be personally liable, unless by the exercise of due diligence he might have known of such death or dissolution (c).