3. The boiler was not fit for the purpose aforesaid. The defendant worked it up to a pressure of 85 lbs. only, when it exploded and became worthless.

Counter-claim.

The defendant says that :

1. He repeats the 1st, 2nd, and 3rd paragraphs of the statement of defence.

2. The explosion of the said boiler destroyed the defendant's said engine, and injured the defendant's works and machinery in the said colliery, whereby the defendant has suffered damage.

3. Full particulars of the damages, amounting to £576, were delivered to the plaintiff before action.

The defendant claims £576.

Statement of Defence to specially indorsed Writ that the Goods were sold on an unexpired Credit.

Defence.

The defendant says that :

1. The goods were sold on the terms that the defendant should have six months' credit for the payment of them, which term of credit has not yet expired.

2. It was another term of the contract of sale that the de fendant should be allowed a discount of £15 per cent off the price.

Claim for not delivering Goods sold with Defences of the Statute of Frauds, and Rescission of the Contract and Plaintiff's Bankruptcy.

1. The plaintiff has suffered damage by breach of contract for sale and delivery by the defendant to the plaintiff of fifteen pipes of port wine, at £150 each, to be delivered f. o. b. at Oporto on the 17th of November, 1883.

2. The defendant did not deliver any of the said pipes of port wine.

Particulars of damage :

Loss of profit on 15 pipes, at £30 each, £450. The plaintiff claims £450.

Defence.

The defendant says that :

1. The 17th section of the Statute of Frauds has not been complied with.

2. The contract was rescinded before breach. Particulars are as follows:-A letter from the defendant to the plaintiff, and an answer of the plaintiff, dated the 14th and 15th of October, 1883.

3. The plaintiff's affairs were liquidated by arrangement, pursuant to the 125th section of the Bankruptcy Act, 1869, and the cause of action vested in the trustees of his property.

Contracts

relating to land must be evidenced by writing.

When plaintiff can proceed by a specially endorsed writ.

What damages can be sought.

Sale of Land (a).

Claim by Purchaser for Deficiency in Acreage.

1. On June 30, 1883, the defendant in writing agreed with the plaintiff to sell to the plaintiff the Paxton Estate, in the

(a) The 4th section of the Statute of Frauds provides (inter alia) that no action shall be brought whereby to charge any person upon any special contract or sale of lands, tenements, or hereditaments, or any interest in or concerning them, unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorised. As to the effect of a written acceptance, referring to the preparation of a formal contract, see Bonnewell v. Jenkins, 8 Ch. Div. 70; Rossiter v. Miller, 5 Ch. Div. 648, 3 App. Cases, 1124; and Hussey v. Horne Payne, 4 App. Cases, 311. Where, as would now scarcely ever happen, an estate was actually conveyed without the purchase-money having been paid, the vendor could claim the amount of the purchase-money, either by a special indorsement on his writ, or in a statement of claim setting out the transaction. In the ordinary case of the contract falling through for some cause or another, before an actual conveyance, it would seem that the plaintiff's (vendor's) claim must sound in damages for breach of the contract by the defendant, the measure of damage being the loss sustained by reason of the breach, as costs incurred and the diminution in value of the land. (Laird v. Pim, 7 M. & W. 474.) Such a claim, therefore, could not be the subject of a special indorsement.

In an action by the purchaser against the vendor for not completing the purchase, the former can claim as damages the costs of the agreement, investigating the title, searching for judgments and of endeavouring to procure a good title, and the deposit with interest. (Hodges v. Earl of Lichfield, 1 N. C. 492; Hanslip v. Padwick, 6 Exch. 615; Sug. Vendors, &c., 14th ed., 362.) In cases where it is decided that the plaintiff is entitled to damages for money or expenses incurred, it is

county of Hereford, describing it as containing 10,000 acres, for the sum of £500,000.

2. By a condition in the agreement it was provided that the vendor should make compensation for any error or misdescription.

sufficient if he has become liable for them. Q. B. 756.)

(Richardson v. Chason, 10

The purchaser cannot recover expenses incurred previously to entering What into the contract, nor expense of a survey he has made before he knows the damages title, nor the expense of a conveyance drawn in anticipation (Hodges v. cannot be Earl of Lichfield, supra; and see Godwin v. Francis, L. R. 5 C. P. 295; recovered. and Gray v. Fowler, L. R. 8 Ex. 249); nor expenses incurred in preparing a conveyance after a defect in the title was discovered (Pounsett v. Fuller, 18 C. B. 660; 25 L. J. C. P. 145); or in further negotiations. (Sikes v. Wild, 30 L. J. Q. B. 325; S. C. ap. 32 L. J. Q. B. 375.) Where the purchaser has brought a suit for specific performance, which was dismissed for want of title, it was held he could not recover his costs in such suit. (Malden v. Fyson, 11 Q. B. 292.) And where the vendor brought such a suit and it was dismissed with costs for want of title, the purchaser could not recover his extra costs in such suit. (Hodges v. Earl of Lichfield, supra.) But since the union of the Courts and the introduction of counterclaims, these questions will no longer arise. A lessee with an option to purchase cannot recover expenses in improving the land before exercising his option where the title proves bad. (Worthington v. Warrington, 8 C. B. 134.)

Where the purchaser is held entitled to recover for the loss of his bargain, the measure of damages is the difference between the contract price and the market price at the time of the breach; and the price at which the estate was afterwards sold is primâ facie evidence of the market value. (Engell v. Fitch, supra; and see Godwin v. Francis, supra.)

The parties may, in appropriate language, name a sum which is to be paid as liquidated damages by either of them on his failing to carry out his contract, which of course would include a failure to show a good title; and in such a case the sum named can be recovered. (Lea v. Whitaker, L. R. 8 C. P. 70.) The mere fact of designating the sum named as "liquidated damages" will not necessarily make it such; and where the contract contains a variety of stipulations of different importance, and a sum is named to be paid on breach of any of them as liquidated damages, this will be treated as a penalty. (Magee v. Lavell, L. R. 9 C. P. 107, 111.)

Where the defendant failed to carry out an agreement to demise certain land and deduce a good title, the intended lessee was held not entitled to recover the expense of raising the purchase-money, or the interest thereon, while awaiting completion, nor the expense of forming and registering a company for the purpose of carrying on certain works on the land, nor the profits that would have accrued to the company from the lease, or to the plaintiff as their solicitor in carrying their project into effect, such heads of expense being either premature or merely speculative. (Hanslip v. Padwick, supra.)

The principle is now settled that a purchaser cannot recover damages for the loss of his bargain, i.e., the difference between the contract price and the price which he could get on resale, unless the vendor has been guilty of fraud in the transaction. (Flureau v. Thornhill, 2 Wm. Bl. 1078; Sug. Vend. & Purch. 14th ed. 358 (c.); Pounsett v. Fuller, supra; Sikes v. Wild, supra; Bain v. Fothergill, L. R. 6 Ex. 59; aff.

Effect of agreeing on a sum as "liquidated

damages."

A purchaser cannot generally have damages for the loss

3. The plaintiff has paid the purchase-money, £500,000.

4. Since paying the purchase-money the plaintiff discovered, and the fact is, that the estate does not contain 10,000 acres, but 9,000 acres only.

The plaintiff claims £50,000 damages.

Defence.

The defendant says that :

1. The conveyance of the estate has been executed, and the contract of sale completed.

2. By the agreement, and by the conveyance, the estate was not described as containing 10,000 acres, but as containing "by estimation 10,000 acres, or thereabouts, more or less."

3. Until some time after the completion of the contract, and after execution of the conveyance, the defendant reasonably believed that the estate contained 10,000 acres.

4. The estate before the sale had been estimated, and at the time of sale was estimated by the defendant to contain 10,000 acres or thereabouts more or less.

of his bar gain.

Action by Vendor of Land and House against Purchaser for Breach of Contract, claiming Damages for Interim Depreciation.

1. The plaintiff has suffered damage by the defendant's breach of a contract in writing, dated June 15, 1883, whereby the defendant agreed with the plaintiff to purchase from the plaintiff, at the price of £2,000, a piece of land called Meadow Field, with the house thereon, situate in the parish of Ulla

L. R. 7 H. L. 158; 43 L. J. H. L. 245.) Where, however, though the defendant has not been guilty of fraud in the contract, he by deliberately failing to give the plaintiff possession, prevents an advantageous resale by the latter, he is liable to compensate the plaintiff for the loss of his bargain. See Engell v. Fitch, L. R. 3 Q. B. 314, affirmed in Ex. Ch., L. R. 4 Q. B. 659, which does not appear to be disturbed by the decision in Bain v. Fothergill, supra.

The balance of authority is in favour of the view that if the vendor should innocently misrepresent the acreage of the property sold, the purchaser cannot, after completion, recover damages or compensation for the deficiency. (Joliffe v. Baker, 11 Q. B. Div. 255; Bos v. Helsham, where there was an agreement that compensation should be given, L. R. 2 Ex. 72; Re Turner & Skelton, 13 Ch. Div. 130, and Allen v. Richardson, 13 Ch. Div. 524, and the cases there cited.)

thorne, in the county of Cumberland, and to complete the said purchase on the 15th of July, 1833.

2. On the 14th of July, 1883, the defendant refused to complete the purchase.

3. The defendant has paid a deposit, on account of purchasemoney, of £200.

Particulars of special damage :

1883. Paid Mr. A., auctioneer, expenses

1. The defendant was induced to enter into the contract by the plaintiff's representation that the premises agreed to be sold were free from any easement.

2. In fact the Meadow Field was and is subject to a right of way over it for foot passengers.

3. The defendant could not make a good title to the premises.

The defendant says:

Counter-claim.

1. He paid the plaintiff £200 on account of the purchasemoney of the premises on the 15th of June, 1883.

2. He repeats all the allegations contained in the statement of defence.

3. He has suffered damage by the plaintiff's breach of contract to convey the said premises free from any easement.