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('H. XI. s. 7.

(c) Time, how far Essence of Contract. Sale of Land (Action by When an abstract was to be delivered, or the conveyance was to Purchaser

against be executed, on or before a certain specified day, the time fixed Vendor).

was, at law, considered to be of the essence of the contract; and At law, time

the vendee might rescind the contract, if the vendor was not ready is of the essence of the before or on the exact day (y) ; but in equity the rule is that time contract.

is not of the essence of the contract, unless it is made so by

direct stipulation or necessary implication (2). Rule in

Where time was not originally of the essence of the contract, it equity.

may, if either party is guilty of improper delay, be made so by a

notice by the other, fixing a reasonable period for completion (a). Judicature

And now, by Judicature Act, 1873, s. 25, sub-s. 7, stipulations Act.

in contracts as to time or otherwise, which would not before the passing of that Act, have been deemed to be, or to have become of the essence of such contracts in a Court of Equity, are to receive in all Courts the same construction and effect as they

would theretofore have received in equity. Rule where Where no time is fixed for completing the contract, the vendor no time fixed.

must be ready to do so within a reasonable time (b). But time may be made of the essence of the contract by special notice subsequent to the conclusion of the contract, and where a contract on the 25th August had stipulated for possession at or soon after Michaelmas, and a notice was given on the 13th October that unless a proper abstract was sent within 14 days the purchaser would treat the contract as at an end, and require a return of the deposit and damages, it was held that the period of 14 days was reasonable, and that no proper abstract having been delivered within it, the purchaser might rescind the contract and recover both the deposit and the expenses of investigating the title (c).

Damages recoverable against vendor.

(d) Damages Recoverable against Vendor. The vendor is, in general, responsible not only for the deposit, but for interest thereon (d); and for interest on moneys purposely kept in hand, and unproductive, in order to pay the remainder of

(y) See per Alderson, B., Hanslip v. Padwick (1850), 5 Exch. 615, 623 ; Wilde v. Fort (1812), 4 Taunt. 334.

(3) See Parkin v. Thorold (1852), 16 Beav. 59 ; per Grove, J., Patrick v. Milner (1877), 2 C. P. D. 312; and llatten v. Russell (1888), 38 Ch. D. 334.

On the sale of a public-house, as a going concern, time is, even in equity, of the essence of the contract. See Cowles v. Gale (1871), L. R., 7 Ch. 12; Day v. Luhke (1868), L. R., 5 Eq. 336.

(a) Per Romilly, M.R., Pegg v. Wisden (1852), 16 Beav. 239; Green v. Sevin (1879), 13 Ch. D. 589; and see Crawford v. Toogood (1879), il. 153.

(6) Sansom v. Rhodes (1840), 8 Scott, 514.

(c) Compton v. Bagley, (1892) 1 Ch. 313, per Romer,

(d) At law he is entitled to interest at 51. per cent. ; Hodges v. Earl of Litchfield (1835), 1 Scott, 443, 452; Davis v. Canvey (1888), 40 Ch. D. 601.

Interest on

money.

the purchase-money (e); and also for the expenses incurred by CH. XI. s. 7. the purchaser in investigating the title (f).

Sale of Land

(Action by So it has been held, that the purchaser is entitled to recover Purchaser

against interest on money borrowed by him, and kept idle to answer

Vendor). the purchase (g). But if such money were borrowed, before the purchaser had ascertained whether the seller could or borrowed could not complete his contract, the former could not recover either the expenses of raising the same, or the loss of interest thereon (h).

So, it is now well decided, that where the vendor of an estate Purchaser is, without fraud on his part, unable to make out a title, the not, in

general, enpurchaser cannot, in an action for breach of the contract, recover titled to

damages for damages for the loss of his bargain ; but only the money he has loss of paid, with interest, and expenses (i). And this rule must now be bargain. taken to be without exception : Bain v. Fothergill having overruled Hopkins v. Grazebrook (k), and other cases decided on the authority of that case (1), in so far as they engraft exceptions on such rule (m).

But the rule of Bain v. Fothergill is based upon the uncertainty Bain v. of making out a good title, and does not apply to the case of

Fothergill. vendor who can make out a good title but will not, or will not do what he can and ought to do in order to obtain one. Therefore, if a vendor of leasehold, assignable subject to the consent of his lessor (as is usual), does not endeavour to obtain that consent, the purchaser will be entitled to damages, although he would not have been so entitled if the vendor had asked for the consent and been refused (n). Although the auctioneer is, in general, liable only for the When auc

tioneer liable amount of the deposit, without interest (o); still, if he sell an

for interest estate without sufficient authority, this rule does not apply; and and expenses. in such a case he is liable, as principal, to pay to the purchaser his deposit, interest and expenses (p).

a

(e) Flureau v. Thornhill (1766), 2 W. Bl. 1078.

(1) See very fully, Hodges v. Earl of Litchfield (1835), 1 Scott, 443; per Cur., Harington v. Hoggart (1830), 1 B. & Ad. 577, at p. 588.

(g) Sherry v. Oke (1835), 3 Dowl. 349.

(h) Hanslip v. Padwick (1850), 5 Exch. 615.

(i) Flureau v. Thornhill (1766), 2 W. Bl. 1078; Bain v. Fothergill (1874), L. R., 7 H. L. 158 ; and see Royal Bristol Building Society v. Bomash (1887), 35 Ch. D. 390, where vendor having delayed, purchaser was held entitled to damages for loss of a tenant and deterioration of the property.

C.C.

(k) Hopkins v. Grazebrook (1826), 6 B. & C. 31.

(l) See Godwin v. Francis (1870), L. R., 5 C. P. 295.

(m) Bain v. Pothergill (1874), L. R., 7 H. L. 158 ; and see Gaslight and Coke Co. v. Towse (1887), 35 Ch. D. 519 ; Rowe V. School Board of London (1887), 36 Ch. D. 619.

(n) Day v. Singleton, [1899] 2 Ch. 320, C. A.

(0) Ante, p. 301 (ro).

(P) Bratt v. Ellis (1805), and Jones v. Dyke, reported Sugd., V. & P., 14th ed., App. 5, 6; and see Godwin v. Francis (1870), L. R., 5 C. P. 295.

20

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(e) Action for Specific Performance.

[See Fry on Specific Performance, and post, Ch. XXIV.] If the purchaser wishes to obtain from the vendor specific performance of his contract, he must proceed by action for that purpose in the Chancery Division of the High Court of Justice (); or if the purchase-money do not exceed 5001. he has an option of suing in the County Court(1). The deposit may be recovered in an action for money had and received (s), or by a summons under the Vendor and Purchaser Act, 1874 (1).

Where the contract has been executed, and the purchaser was induced by the seller to enter into it by means of fraudulent representations, the purchaser may either bring an action for deceit, or take proceedings in the Chancery Division of the High Court, for relief (u), although the representations complained of were not embodied in the written memorandum of the bargain, or in the assignment executed by the parties (x).

And in an action for deceit, the purchaser can recover damages against the seller, which he could not recover against him in an action for breach of the contract of sale (y).

Sect. 8.—Assignment of Contract. The law of assignment of contracts is generally dealt with in Ch. XXVI., post, but reference may be made here to Fleming v. Loe (z). In that case a contract for sale of mining leases and claims was induced by and voidable for misrepresentations by the vendor, who assigned the contract, and the assignee received payments under it by the purchaser, who afterwards avoided it. It was held by Cozens-Hardy, J., in an action by the assignee against both vendor and purchaser which was dismissed, that the purchaser could recover the payments from the assignee by counterclaim (a); but this judgment was reversed on the facts by the Court of Appeal and the House of Lords (a).

Voidable
contract.
Fleming v.
Loe.

(9) Supreme Court of Judicature Ex. Ch.
Act, 1873" (36 & 37 Vict. c. 66), s. 34, (y) See per Lord Chelmsford, Baia v.
sub-s, 3.

Fothergill (1874), L. R., 7 H. L. 159, (r) County Courts Act, 1888 (51 & 52 207, and see n. (i), supra. Vict. c. 43), S. 67.

(*) Fleming v. Loe, (1901) 2 Ch. 594, (8) See ante, p. 50.

per Cozens-Hardy, J., explaining Abera(O) In re Hargreaves v. Thompson man Ironworks Co. v. Wickens (1868), (1886), 32 Ch. D. 454, ('. A.

L. R., 4 Ch. 401, on the ground that the (1) See Bree v. Holbech (1781), Dougl. Court had not then jurisdiction to deal 654 a ; 36 & 37 Vict. c. 66, S. 34, with a legal claim for money had and sub-s. 3.

received. (2) Dobell v. Stevens (1825), 3 B. & C. (a) Fleming v. Loe, (1902) 2 Ch. 359 ; 623 ; and as to action of deceit, see Mackusick v. Fleming (1904), 90 L. T. Wilson v. Fuller (1843), 3 Q. B. 68,

101, C. A.

CHAPTER XII.

CONTRACTS BETWEEN LANDLORD AND TENANT.

[See Fawcett on Landlord and Tenant, 2nd ed., A.D. 1900; Smith's Lectures,

3rd ed., A.D. 1882 ; Smith and Soden on Landlord and Tenant, 2nd ed., A.D. 1878; Redman and Lyon on Landlord and Tenant, 5th ed., A.D. 1901 ; Poà's Law of Landlord and Tenant, 3rd ed., A.D. 1901 ; and Woodfall's Law of Landlord and Tenant, 17th ed., A.D. 1902.]

PAGE 1. Contract for Lease.....

307 2. Lease

308 3. Tenancy at Will

312 4. Tenancy from Year to Year.... 313 5. Estoppel of Tenant from dis

puting Landlord's Title 315 6. Rent

316 7. Distress for Rent

318 8. Repair .........

319 9. Alienation of Demised Premises 322

PAGE 10. Determination of Tenancy. 324 (a) By Surrender

324 (b) By Notice to Quit

324 (c) By Forfeiture

328 (d) Relief against Forfeiture... 330 (e) Rights of Landlord

330 (f) Rights of Tenant...

331 11. Agricultural Holdings

332 12. Market Gardens

333 13. Action for Use and Occupation 334

Sect. 1.The Contract for a Future Lease. In order to ascertain whether an instrument amounts to a When an present demise, or operates merely as an agreement for a future instrument letting of the premises, the intention of the parties, to be collected an immediate

demise. from the whole of the words used by them in such instrument, is to be considered (a). And it is said, that if the words of the instrument be ambiguous, the acts done under it may be called in aid as a clue to the intention of the parties (). The words “A. agrees to let, and B. agrees to take" (which words are frequently used in contracts obviously intended to operate as present demises), may of themselves operate as words of present demise, and so may any instrument by which it appears that one party is to give possession and the other to take it (c).

Although, as we shall see presently, a lease for less than three Contract for years may be oral, a contract for a lease for however short a time

written. must, by virtue of the 4th section of the Statute of Frauds Edge v. (ante, p. 76), be in writing signed by the party to be charged Strafford,

lease must be

(a) Curling v. Mills (1843), 6 M. & G. 173 ; Gore v. Lloyd (1844), 12 M. & W. 463, 478.

(6) Chapman v. Bluck (1838), 5 Scott,

515; per Tindal, C.J., Doe d. Pearson v Rics (1832), 8 Bing. 178.

(c) See Curling v. Mills (1843), 6 M. & G. 173, supra.

CH. XII. s. 1. thereby; and this rule applies to an executory contract to take
Landlord and lodgings (d) or a furnished flat (e), but not to a contract for board
(Contract for and lodging (1).
Lease).

Where a person contracts to grant a lease, there is an implied Lodgings.

agreement that he has a good title or right to grant such lease (9). Furnished flat.

Thus, where A. agreed to grant a lease to B., in consideration of Implied con- a sum of money, part of which was paid by B. at the time of tract for

making the agreement; and it afterwards appeared that A. had title.

not power to grant the lease in question; it was held that B.

might rescind the contract, and recover back the money so paid (1). • Usual

A contract for “usual covenants appears to carry covenants covenants."

for rent, taxes, and repair (but not against alienation) on the part of the lessee, and the qualified covenant for quiet enjoyment (see

p. 311, infra) on the part of the lessor (i). Lessee taking Nor does the fact of the intended lessee taking possession of the possession not waiver of premises, with the knowledge and consent of the lessor, operate objection to

per se as a waiver by the former, of an objection to the lessor's title, title.

although it is primâ facie evidence of his acceptance thereof (k). Rule under But the intended lessee is not entitled, unless there be a stipuV. and P. Act, 1874.

lation in the contract to that effect, to call for the title to the freehold (1), or if the intended lessor be himself a leaseholder, to the

leasehold reversion (m). Notice to And upon an agreement to grant an underlease, the intended under-lessee

lessee, if he has had a fair opportunity of ascertaining the proof terms of original lease. visions of the original lease, is held to have constructive notice of

those provisions (11). Stamp.

The stamp is the same as on a lease at the same rent (ante,

p. 118).

SECT. 2.—The Lease.

When
lease must
be by deed
under Real
Property Act,
1815.

The first section of the Statute of Frauds provides that all leases of any messuages, manors, lands, tenements, or hereditaments, not put in writing, and signed by the parties so making

(a) Edgev. Strafford (1831), 1 C. & J. 391.

(e) Thursby v. Eccles (1900), 70 L. J., Q. B. 913, per Bigham, J., holding also that part payment of rent, without taking possession, was not such payment of rent as to take the case out of the statute.

V) Wright v. Stavert (1860), 29 L.J., Q. B. 161.

(9) Stranks v. St. John (1867), L. R., 2 C. P. 376.

(h) Roper v. Coombes (1827), 6 B. & C.

534.

(i) Hampshire v. Wickens (1878), 7 Ch. D., at p. 761, and p. 323, infra, per Jessel, M.R.

(k) Hyde v. Warden (1877), 3 Ex. D. 72, C. A.

(1) V. and P. Act, 1874, 37 & 38 Vict. c. 78, s. 2, sub-s. 1.

(m) Conv. Act, 1881, 44 & 45 Vict. C. 41, s. 13.

(n) Hyde v. Warden (1877), 3 Ex. D. 72, C. A.

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