the whole declaration taken together, that, at the same moment, by a simultaneous act, a promise was made, that, on the plaintiff's accepting bills drawn by one of the parties then present, the defendants should deliver certain deeds to the plaintiff when the bills were paid, it was held, that a good consideration was disclosed for the defendant's promise. So, where the promise of the plaintiff and that of the defendant are simultaneous, the one will be a good consideration for the other, provided they are reciprocally binding; as, where [*603] two parties, upon the same occasion, *and at the same time, mutually promise to perform a certain agreement not then actually entered into, the consideration moving from the one party is sufficient to support the promise by the other.3

Again, where by one and the same instrument, a sum of money is agreed to be paid by one of the contracting parties, and a conveyance of an estate to be at the same time executed by the other, the payment of the money and the execution of the conveyance may very properly be considered concurrent acts; and, in this case, no action can be maintained by the vendor to recover the money, until he executes, or offers to execute, a conveyance. It may, indeed, be stated generally, that neither party can sue on such an entire contract without showing a performance of, or an offer, or, at least, a readiness to perform, his part of the agreement, or a wrongful discharge or prevention of such performance by the other party; in which latter case the party guilty of the wrongful act shall not, in accordance with a maxim already considered, be allowed to take advantage of it, and thereby to relieve himself from liability for breach of contract."

1 Tipper v. Bicknell, Id. 710.

2 Even if there be a want of mutuality at the inception of the contract, an action will nevertheless lie when the consideration has become executed quoad one of the contracting parties. See the Law Mag. No. 9, N. S., pp. 264, 265, citing The Fishmongers' Company v. Robertson, 6 Scott, N. R. 56; Arnold v. The Mayor of Poole, 5 Scott, N. R. 776.

3 Thornton v. Jenynes, 1 Scott, N. R. 52. See Tucker v. Wood, 12 Johns. R. (U.S.) 190; King v. Gillett, 7 M. & W. 55; (*) Harrison v. Cage, 1 Ld. Raym. 386; 2 Steph. Com. 114.

4 Per Lord Tenterden, C. J., Spiller v. Westlake, 2 B. & Ald. 157; E. C. L. R. 22. 5 See Atkinson v. Smith, 14 M. & W. 695;(*) per Lord Kenyon, C. J., Rawson v. Johnson, 1 East, 208.

6 Ante, p. 209 et seq. Lovelock v. Franklin, 15 L. J., Q. B. 146; Short v. Stone, Id. 143. "If a party does all he can to perform the act which he has stipulated to do, but is prevented by the wrongful act of the other party, he is in the same situation as if the performance had been performed." Per Holroyd, J., Studdy v. Sanders, 5 B. & C. 639; E. C. L. R. 11; Caines v. Smith, 15 M. & W. 189.(*)

In addition to cases in which the consideration is concurrent, or is altogether past and executed, others occur wherein the consideration is continuing at the time of *making the promise; thus, it [*604] has been held, that the mere relation of landlord and tenant is a sufficient consideration for the tenant's promise to manage a farm in a husbandlike manner.1 Among promises made on a continuing consideration, may also be noticed that class which are founded on legal liabilities; as, where in consideration of a sum of money being legally due, the debtor makes an express promise to pay. This, it may be observed, has no immediate reference to any reciprocal act done, or to be done, by the other party, or consideration strictly so called; yet it is not a nudum pactum, the legal duty being in the nature of a consideration: indeed, it is a promise which (even where nothing is expressed between the parties) the law will imply.2

Lastly, "Whenever the consideration of a promise is executory, there must," it has been observed,3 "ex necessite rei, have been a request on the part of the person promising; for if A. promise to remunerate B., in consideration that B. will perform something specified, that amounts to a request to B. to perform the act for which he is to be remunerated." Here the consideration constitutes a condition precedent to be performed by B. before his right of action accrues; and such performance must be laid in the declaration with certainty, and proved at the trial; but whether or not, in any given case, one promise be the consideration of another, or whether the *performance, and not the mere promise, be the considera[*605] tion, must be gathered from, and depends entirely upon, the words and nature of the agreement, and the intention of the contracting parties.5

1 Powley v. Walker, 5 T. R. 373; recognised Beale v. Sanders, 3 Bing. N. C. 850; E. C. L. R. 32.

2 2 Steph. Com. 114. In Bac. Abr. “Assumpsit” (D.) which treats of considerations executed and continuing, will be found other cases illustrating this species of consideration. See, also, Jackson v. Cobbin, 8 M. & W. 790, 797; (*) Cotton v. Westcott, 3 Bulstr. 187; Pearle v. Unger, Cro. Eliz. 94; Jones v. Clarke, 2 Bulstr. 73. 3 1 Smith, L. C. 70. 41 Chit. Plead., 6th ed. 296.

5 Thorpe v. Thorpe, 1 Lord Raym. 662; S. C., 1 Salk. 171, is a leading case on "this subject.

CAVEAT EMPTOR.

(Hob. 99.)

Let a purchaser beware.

It seems clear, that, according to the civil law, a warrantee of title was, as a general rule, implied on the part of the vendor of land, so that in case of eviction an action for damages lay against him at the suit of the vendee, sive tota res evincatur, sive pars, habet regressum emptor in venditorem ;1 and again, non dubitatur, etsi specialiter venditor evictionem non promiserit, re evictâ ex empto competere actionem. With us, however, the negative of the above proposition holds, and it is accordingly laid down, that, "if a man buy lands whereunto another hath title, which the buyer knoweth not, yet ignorance shall not excuse him." By the civil law, as observed by Sir E. Coke, every man is bound to warrant the thing that he sells or conveys, albeit there be no express warranty; but the common law binds him not, unless there be a warranty, either in deed or in law; for caveat emptor, qui ignorare non debuit quod jus alienum emit-let a purchaser, who ought not to be ignorant of the amount and nature of the interest which he is about to buy, exercise proper caution.

[*606]

*The following examples will perhaps suffice to show generally the mode in which the maxim caveat emptor has been applied in practice to the sale of realty; and since it would be incompatible with the plan of this volume to enter at length into an examination of the very numerous cases which have been decided at law and in equity with respect to the operation of the above rule, we must content ourselves with referring below to several works of high authority in which this important subject will be found minutely treated."

Where, on the sale of an estate, certain woods were falsely represented as actually producing £250 per annum, on an average of the fifteen preceding years, but it appeared that the manner of making the calculation was explained at the sale, that a paper was exhibited, 2 C. 8, 45, 6.

1 D. 21, 2, 1.

3 Doct. and Stud., bk. 2, ch. 47.

4 Co. Litt. 102, a. "I have always understood that in purchases of land the rule

is caveat emptor," per Lawrence, J.: Gwithin v. Stone, 3 Taunt. 439.

5 Hobart, 99.

6 Sugd. V. & P., 11th ed. 377 et seq; 1 Story, Eq. Jurisp., 4th ed., ch. 6.

showing that the woods had not been equally cut, and that the purchaser likewise sent down his own surveyors, who thought that the woods had been cut in an improper manner, Lord Thurlow refused to give the purchaser relief by ordering an allowance to be made, and held that the maxim caveat emptor, applied; but he observed, that if the representation were made generally, and it was distinctly proven that the fact stated, though literally true, yet was made out by racking the woods beyond the course of husbandry, that would be a fraud in the representation, which might be relieved against; and he further remarked, that the maxim, caveat emptor, does not apply "where there is a positive representation essentially material to the subject in question, and which, at the same time, is false in fact," provided proper diligence be used by the purchaser in the course of the transaction.1

*By agreement for the purchase of a piece of land, entered [*607] into between the defendants, who were the assignees of B., and the plaintiff, it was stipulated on behalf of the defendants that they should not be obliged to make any warranty of title, the plaintiff having agreed to accept a conveyance of such right or title as might be the defendants', with all faults and defects if any. Before any conveyance was executed, the plaintiff asked the defendants whether any rent had ever been paid for the land, and they replied that none had been paid by the bankrupt, nor by any person under whom he claimed, whereas, in fact, rent had been paid by the person who had sold the land to the bankrupt. The plaintiff having been evicted sued the defendants for recovery of his purchase-money, and the judge having left to the jury the question whether the non-communication of the fact of payment of rent was fraudulent or not, a verdict was found for the defendants. This verdict the Court in banc refused to set aside, and Bayley, J. observed, "I make no distinction between an active and a passive communication; if a seller fraudulently conceal that which he ought to communicate, it will render the contract null and void. But the authorities establish that the concealment must be fraudulent." The case just cited is a direct authority in support of the general rule of law laid down by Sir E. Sugden, who says, "If, at the time of the contract, the vendor himself was not

1 Lowndes v. Lane, 2 Cox, 363.

2 Early v. Garrett, 9 B. & C. 928, 932; E. C. L. R. 17; Duke of Norfolk v. Worthy, 1 Camp. 337; White v. Cuddon, 8 Cl. & Fin. 766; Turner v. Harvey, 1 Jac. 169, 178; Phillips v. Duke of Bucks, 1 Vern. 227.

aware of any defect in the estate, it seems that the purchaser must take the estate with all its faults, and cannot claim any compensation for them."

[*608] *Where, however, a particular description of the estate is

given, which turns out to be false, and the purchaser cannot be proved to have had a distinct knowledge of its actual state and condition, he will be entitled to compensation, although a court of equity will compel him to perform his contract. The rule of caveat emptor, indeed, has no application where the defect is a latent one, and of such a nature that the purchaser cannot by the greatest attention discover it, and if, moreover, the vendor be cognizant of it, and do not acquaint the purchaser with the fact of its existence; for in this case the contract would not be considered binding at law, and equity would not enforce a specific performance. It appears, however, to be settled, that if the subject-matter of the contract of sale be agreed to be taken "with all faults," the insertion of this condition will excuse the vendor from stating those within his knowledge, although he will not be justified in using any artifice to conceal them from the purchaser. And even if the purchaser might, by exercise of proper precaution, have discovered the defect, equity will not assist the vendor in case he has industriously concealed it. So, from the important case of Attwood v. Small, the principle is clearly deducible, that if a purchaser, choosing to judge for himself, does not effectually avail himself of the knowledge or means of knowledge accessible to him or his agents, he cannot afterwards be permitted to say that he was deceived and misled by the vendor's misrepresentation; for the rule in such a case is caveat emptor, and the knowledge of his agents is as binding on him as his own knowledge. It is his own folly and laches not to use the means of knowledge within his reach, and he may properly impute [*609] any loss or *injury in such a case to his own negligence and

indiscretion.4

Where the defects are patent, and such as might have been discovered by a vigilant man, or where the contract was entered into with

11 Sugd., V. & P. 11th ed. 2.

* Id. 381, 383.

3 Id. 386, 388.

4 Attwood v. Small, 6 Cl. & Fin. 232, 233; 1 Story, Eq. Jurisp., 4th ed. 228. Equity will not "interpose in favour of a man who wilfully was ignorant of that which he ought to have known,— ‚—a man who, without exercising that diligence which the law would expect of a reasonable and careful person, committed a mistake, in consequence of which alone the proceedings in court have arisen," per Lord Campbell, Duke of Beaufort v. Neeld, 12 Cl. & Fin. 248, 286.