Purchaser's liability to pay interest.

Under an open contract.

(c) See 1 Dart, V. & P. 130, 131, 5th ed.; 147. 6th ed.; 143, 7th ed.; 1 Davidson, Prec. Conv. 544. 681 ,sq., 699 sq., 4th ed.; 1 Key & Elph. Prec. Conv. 293 and n. (d), 338 sq., 8th ed.; above, pp. 81. 363.

(d) See above, p. 405, n. (n).

(e) 1 Dart, V. & P. 131, 5th ed.; 147, 6th ed.; 143, 7th ed.; 1 Davidson, Prec. Conv. 546, 547, 4th ed.; above, p. 81.

(f) Above, p. 405.

(g) See Walter v. Maunde, 1 J. & W. 181.

(h)Above, pp. 50, 60, 67, .

(i) Above, p. 50, n. (o).

Under the stipulation usuul on London sales.

(k) See above, pp. 67, 68, 75, and n. (b) 85.

(l) Above, pp. 26, 40, 50.

(m) Jonesv. Mudd, 4 Russ. 118; above. p. 60; Re Highett and Bird's Contract, 1902, 2 Ch. 214, 217 (which appears to be quire right in this respect; see above, p. 354).

(n) Above, pp. 408, 576.

(o) Expte. Manning, 2 P. W. 410; Flndyer v. Cocker, 12 Ves. 25; A.-G. v. Christchurch, 13 Sim. 214; 2 Part, V. & P. 020, 630, 5th ed.; 711, 6th ed.; 652, 653, 7th ed.

(p) Above, p. 51.

Contract to pay interest except on vendor's wilful default.

(q) Above , pp, 67, 68.

(r) Sherwin v. Shakapear, .5 De G. M. & C. 517: William v. Glenton, L. R. 1 Ch. 200; Re Mayor of London and Tubbs, 1894, 2 Ch. 521; Bennett v. Stone, 1903, 1 Oh. 60s), 5l6, 520. 525 . Re. Bayley- Worthington and Cohen's Contract, 1909, 1 Ch. 648, 654.

(s) Above, p. 68

(t) Above 67.

(u)See Re Mayor of London and Tabbs' Confront, 1891, 2 Ch. 524: Benuett, v. Stone, 1903, 1 Ch. 609; Re Bayley-Worthington and Cohen a Contract, 1999, 1 Ch. 648, 664. (x) Above, p. 68, and n. (x).

(y) See Re Bin/ley- WortMngton and Cohen's Contract, 1909, 1 Ch. 648, 63057 - 664.

(z) Above, p. 68, n. (s).

(a) Bennett Stone, 1902. 1 Ch. 220, 1903, 1 Ch. 509. The purchaser was by the contract entitled to the benefit of certain covenants entered into with the vendors by a third party. The purchaser required that the benefit of these covenants should lie expressly conveyed to him.

The vendors would only agree to this with the addition of the words " to far as they are now at law or in equity entitled to assign the benefit of these covenants without thereby warranting that such covenants are now enforceable by their assigns." See above, pp. 645, 652; and ocf. Re Bai/lei/- Worlington and Chen's Contract, 1909, 1 Ch. 648. (b) Above, pp. 68, n. (s).

To pay except on vendor's default.

Purchaser in default to pay interest.

The various items which may be charged in account against or in favour of a vendor remaining in possession after the time when interest on the purchase money has become payable, have been stated in the preceding chapter(g): where we have also explained what claims may be made against the vendor for deterioration of the property sold (h).

Items chargeable against or for vendor.

(c) Above, p. 68, n. (s).

(d) Re Woods and Lewis's Contract, 1898, 1 Ch. 433 2 Ch. 211.

(e) Denning v. Hendereon, 1

De G. & Sm. 689: Jours v. Gardiner, 1902, 1 Ch. 191.

(f) Re Bayley- Worthington and Cohen's Contract, 1909, 1 Ch. 648,

(g) Above, pp. 515, 517 - 523.

Deterioration of the property.

The only case in which the adjustment of a claim for compensation is an act done in pursuance of the contract for sale is where an express agreement to make or allow compensation for errors of description forms part of that contract (i). In all other cases a party claiming compensation is really seeking, not to carry out the contract as it stands, but to enforce its performance with a variation. It will be convenient, however, to treat in this place of these cases as well; since any claim for compensation will usually be allowed and adjusted before completion and without litigation, if the claimant can establish a clear right to enforce specific performance of the contract with compensation. And in all cases of innocent misdescription it is essential that the claim for compensation should be made before completion, if the contract contain no express agreement to make compensation; for, except in the case of such an express agreement, the claim cannot afterwards be enforced (k).

Compensation for errors of description.

The position of the parties to an open contract with respect to claims for compensation has been already indicated (/). Any misdescription of the property sold must result in a breach of the contract at law; for in such case the vendor cannot discharge his obligation of producing a property corresponding with that which he has purported to sell (l); and he is bound at law to produce a property answering exactly to that described in the contract, no difference between substantial and insubstantial errors being admitted (m). But in equity it is held that, where there is an insubstantial error innocently made in the description of the property sold, the vendor may nevertheless enforce the specific performance of the contract, giving compensation for the deficiency; and this is the case whether the deficiency be of acreage or quantity, or be of right, as in the case of a quit rent not mentioned in the particulars, or where a very small part of a property described as freehold is copyhold or leasehold (n). This relief, however, will only be afforded in the case of an error made in entire innocence and good faith. It will be refused if the misdescription amount to a wrongful misrepresentation (o). And if the mistake occurred in any point really material to the enjoyment promised by the description in the contract, the vendor cannot oblige the purchaser to perform the contract, whether the misdescription were innocently made or not, and whether it related to the quantity or situation of the land sold, or to the vendor's tenure, estate or right (p). As we have seen (q), compensation is not payable for patent defects - those which are discoverable by an inspection of the property sold - but may well be claimed for defects which are latent and interfere with the enjoyment promised by the contract; and will not be allowed for defects, of which the purchaser had notice when he bought, It is thought that the doctrine enabling the vendor to enforce specific performance with compensation is only applicable where there is a deficiency in the property offered in fulfilment of the contract as compared with that described therein; and does not permit a vendor to enforce specific performance with compensation in his own favour. Thus, if a man sell for a particular price "my house and lands called Broadlands, containing 100 acres," and Broadlands contain a little less than that quantity, he may enforce specific performance with compensation: but if Broadlands contain rather more than 100 acres, it is thought that the vendor cannot oblige the purchaser to perform the contract specifically on payment of a proportionately increased price (r). But where a vendor makes inadvertently and in good faith a serious error to his own disadvantage in the description of the property sold or the price to be paid for it, the Court will not compel him to perform the contract specifically at suit of the purchaser; but will leave the latter to his remedy at law, unless he elect to take without compensation what the vendor really intended to sell or to pay the price the vendor meant to ask. The Court will not, however, rescind the contract at the vendor's instance in such a case (s).