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.
(j) Smith v. Sleap, (1844) 12 M. k W. 585.
(k) Hollins v. Fowler, (1871) L. R. 7H. L. 757; 44 L. J. Q. B. 169.
In a case of payment improperly procured from an agent, by means of a fraudulent misrepresentation,either he or his principal may sue for its recovery (m). Of course a payment by a principal to his own agent does not bind the other principal except under special circumstances (n). In actions on the contract, the representations of the agent are the representations of the principal (o), if made within the scope of his authority (p).
Agent may sue for money fraudulently obtained from him.
On a sale by auction the deposit, unless otherwise expressed, is paid to the auctioneer as stakeholder, not as agent for the vendor ; and as such he may be sued for it (q) : but, if paid to the vendor's solicitor, he holds it, in the absence of express stipulation to the contrary, as agent for the vendor, and not as stakeholder (r). It is a common practice for the auctioneer to receive and give a receipt for the deposit expressly as agent for the vendor.
Auctioneer may be sued for deposit.
In an action for money had and received, rescinding the contract, interest upon the deposit may 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 demand until payment (s); but it does not appear to be otherwise recoverable (t). The purchaser can make no claim in respect of any increase in the value of the estate; and it seems, upon principle, equally clear that he cannot be prejudiced by any diminution in its value ; though some old authorities leave the point doubtful (U).
What purchaser can recover in action after rescinding contract.
(I) Hollins v. Fowler, sup.; cf. Owen v. Cronk, 1895, 1 Q. B. 265; 64 L. J. Q. B. 288.
(m) Holt v.Ely, (1853) 1 E.&B. 795.
(n) Heald v. Kenworthy, (1855) 10 Ex. 739 ; 24 L. J. Ex. 76 ; Wright on Ag. 2nd ed. 402 et seq.
(o) Per Lord Campbell, Wilde v. Gibson, (1848) 1 H. L. C. 605, 615.
(p) Barnett v. South London Tram-ways, (1887) 18 Q. B. D. 815 ; 56 L. J. Q. B. 452 ; Levy v. Scottish Employers Ins. Co., (1901) 17 T. L. R. 229.
(q) Lee v. Munn, (1817; Holt, N. P.
569, and at 8 Taun. 48; Edyell v. Day, sup.; Furtado v. Lumley, (1889) 6 T. L. R. 168.
(r) Edyell v. Day, sup.; Ellis v. Goulton, 1893, 1 Q. B. 350 ; 62 L. J. Q. B. 232.
(s) See Civil Procedure Act, 1833, e. 28; Rhymney R. Co. v. Rhymney Iron Co., (1890) 25 Q. B. D. 146; 59 L. J. Q. B. 414 ; L. C. § I). R. Co. v. S. E. R. Co., 1893, A. C. 429; 63 L. J. Ch. 93 ; see also Re Lloyd Edwards, (1891) 61 L. J. Ch. 22; Re Marquess of Anglesey, 1901, 2 Ch. 548 ; 70 L. J. Ch. 810.
In an action for damages, affirming the contract, the purchaser, if the contract is proved to have been binding on the vendor (x), can recover his expenses of preparing, stamping, and entering into the agreement (y), of investigating and endeavouring to clear up the title (z), of searching for incumbrances, of comparing the abstract with the deeds (a), and of preparing the conveyance (if the sale go off by reason of a concealed incumbrance) (b) ; he can also recover his deposit (c), and interest thereon (d), and upon the residue of his purchase-money, if lying idle (e).
What he can recover in action for damages founded on contract.
The purchaser cannot, however, recover expenses incurred prior to the contract, or the costs of a survey (/), or of preparing a conveyance (g) (except under special circumstances), or any allowance for loss by selling out of the funds (h), or for money laid out in repairs (i), or improvements (k), or the expenses of raising the purchase-money (/), or expenses incurred in expectation of the contract "being completed (I), e.g., losses in cattle, etc, purchased (m), or the difference between his costs taxed as between party and party and his costs as between solicitor and client in an unsuccessful action by the vendor for specific performance (n), or the costs of an action by himself (the purchaser) for specific performance when the action is dismissed without costs on the master certifying against the title (o) ; but where the action is dismissed without costs on the ground of the vendor's mistake, the purchaser may, it seems, include his costs of action in any action which he may bring for damages (q).
What he cannot recover.
(t) Fruhling v. Schroeder, (1835) 2 Bing. N. C. 77 ; L. C. & D. R. Co. v. S. E. R. Co., sup.
(u) Sug. 14th ed. 237 ; L. C. & D. R. Co. v. S. E. R. Co., sup.
(x) Gosbell v.Archer, (1835)4N.& M. 485 ; 4 L. J. N. S. K. B. 7S ; see as to this, Jeakes v. White, (1851) 6 Ex. 873 ; 21 L. J. Ex. 265, sup. pp. 224, 225 ; Simmons v. Hesseltine, (1858) 5 C. B. N. S. 554 ; 28 L. J. C. P. 129.
(y) Hanslip v. Padwick, (1850) 5 Ex. 615 ; 19 L. J. Ex. 372.
(c) See Hanslip v. Padwick, ib. Including costs due, but not actually paid to his solicitor, Richardson v. Chasm, (1847) 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; Sail v. Betty, (1842) 5 Sc. N. E. 508 ; 11 L. J. N. S. C. P. 256.
(a) Hodges v. Lord Lichfield, (1835) 1 Bing. N. C. 492.
(b) Sug. 14th ed. 362.
(c) Hodges v. Lord Lichfield, sup. ; Farquhar v. Farley, (1817) 7 Taun. 592.
(d) Pearl Life Ass. Co. v. Butten-shaw, (1893) W. N. 123, where the purchaser was also allowed the costs of the action.
(e) Sherry v. Oke, (1835) 3 Dowl. 349, 361.
(/) Hodges v. Lord Lichfield, sup. As to taxing costs of a survey, see Bellas v. Warmer, (1849) 3 De G & S. 454.
(g) S. C. ; Jarmain v. Egelstiue, (1831) 5 C. &P. 172.
(h) Flureau v. Thomhill, (1776) 2 W. Bl. 1078.
The rule as to the damages which may be recovered for breach of a contract for the sale of real estate forms, in one respect only, there being on the general principle no difference (q), an exception from the ordinary rule as to damages for breach of contract. In the case of non-delivery of goods contracted to be sold, the purchaser is entitled to recover either such damages as may fairly be considered to have been the natural result of the breach of the contract, or such as may reasonably be supposed to have been contemplated by both parties, at the time when they entered into the contract, as the probable result of a breach (r). Thus, where there was a contract for the sale of a threshing machine to be delivered on the 14th Aug., and the vendor knew the purpose for which it was required, but, notwithstanding repeated promises did not send it until the 10th Sept., the purchaser was held entitled to recover for loss sustained By injury to his wheat from lain, and for expenses incurred in carting, stacking, and kiln-drying it ; but rot for loss occasioned by a fall in the market price of wheat (s).