1826. HOPKINS against GRAZEBROOK. Thursday, ASSUMPSIT on an agreement for the sale of certain Where a per son who The contracted for the purchase of an estate, but premises at Stourbridge, in Worcestershire. declaration stated, that the defendant caused the premises to be put up to sale by auction in November 1825, subject to certain conditions, and amongst others, that the purchaser should immediately pay down a deposit, and should pay the residue of the purchase-money on the 25th of March then next, and that on payment thereof he should be let into possession, and a proper conveyance should be executed by the vendor, who undertook to make a good title. Averment that the plaintiff became the purchaser, paid a deposit, and was ready to pay the remainder of the purchase-money at the time specified, and requested the defendant to make a good title to the premises; that he did not do so, and did not execute a proper conveyance to the plaintiff, had not ob tained a conveyance, put up the estate for sale in lots by auction, and engaged to make a good title by a certain day, which he was unable vendor never to do, as his made a conveyance to him: Held, that a purchaser of certain lots at might, in an the auction action for not making a good title, recover not only the ex pences which he but also da contract car whereby plaintiff was deprived of all benefit to be de- had incurred, rived from the purchase, and was put to great expence, mages for the &c. Plea, the general issue. The defendant paid into loss which he Court the amount of the expences which the plaintiff not having the had been put to, and a small sum for nominal damages ried into effect. for the breach of contract. At the trial before Garrow B., at the last Worcester assizes, it appeared that the premises in question were part of certain property belonging to Hill and Co. of Worcester. Hill and Co. had contracted for the sale of it to one Harwood, and the defendant had entered into an agreement to purchase the same from Harwood. Some misunderstanding arosę 1826. HOPKINS against GRAZEBROOK. arose between Hill and Co. and Harwood, and the conveyance to the latter was never executed, the defendant, however, expecting that the matter would be arranged, and that the contract between Harwood and himself would be carried into effect, put up the premises to auction, as stated in the declaration, but in consequence of the disputes between Hill and Co. and Harwood, he was unable to complete his contract with the plaintiff. For the defendant, it was contended, that he had acted bona fide, (which was admitted,) and therefore could not be charged with more than nominal damages beyond the repayment of the expences which the plaintiff had incurred, and that as such damages had been paid into Court, the plaintiff must be nonsuited. The learned Judge told the jury that they were not bound to confine their verdict to nominal damages, but gave the defendant leave to move for a nonsuit. A verdict having been found for 701. damages, Campbell now moved to enter a nonsuit. The case of Flureau v. Thornhill (a), is an express authority against the propriety of the verdict. There the defendant acting bonâ fide, had sold property and contracted to make a good title, but could not, and the jury gave 20%. damages beyond the expences incurred. A motion was made for a new trial, and De Grey C. J. said, "I think the verdict wrong in point of law. Upon a contract for a purchase, if the title proves bad, and the vendor is, without fraud, incapable of making a good one, I do not think that the purchaser can be entitled to any damages for the fancied goodness of the bargain which (a) 2 W. Bl. 1078. he he supposes he has lost;" and Blackstone J. added, "These contracts are merely upon condition, frequently expressed, but always implied, that the vendor has a good title. If he has not, the return of the deposit, with interest and costs, is all that can be expected." This law was adopted by Lord Alvanley in Johnson v. Johnson. (a) Brig's case (b), Bratt v. Ellis (c), and Jones v. Dyke (d), are also to the same effect. ABBOTT C.J. Upon the present occasion I will only say, that if it is advanced as a general proposition, that where a vendor cannot make a good title the purchaser shall recover nothing more than nominal damages, I am by no means prepared to assent to it. If it were necessary to decide that point, I should desire to have time for consideration. But the circumstances. of this case show that it differs very materially from that which has been quoted from Sir W. Blackstone's reports. There the vendor was the owner of the estate, and an objection having been made to the title, he offered to convey the estate with such title as he had, or to return the purchase-money with interest; here no such offer was or could be made. The defendant had, unfortunately, put the estate up to auction before he got a conveyance. He should not have taken such a step without ascertaining that he would be in a situation to offer some title, and having entered into a contract to sell without the power to confer even the shadow of a title, I think he must be responsible for the damage sustained by a breach of his contract. 1826. HOPKINS against GRAZEBROOK. (d) Ibid. 8. VOL. VI. D BAYLEY 1826. HOPKINS against GRAZEBROOK. BAYLEY J. The case of Flureau v. Thornhill is very different from this, for here the vendor had nothing but an equitable title. Now where a vendor holds out an estate as his own, the purchaser may presume that he has had a satisfactory title, and if he holds out as his own, that which is not so, I think he may very fairly be compelled to pay the loss which the purchaser sustains by not having that for which he contracted. HOLROYD and LITTLEDALE Js. concurred. Rule refused. Thursday, Replevin for taking plaintiff's corn in four closes. Avowry for rent arrear, stating that plaintiff held the closes in which, &c., at and under a certain yearly rent. Plea in HARGRAVE against SHEWIN and DIGBY. REPLEVIN. The declaration stated that the defendants took the growing corn of the plaintiff in four closes, mentioned by name in the count. Avowry by Sherwin and cognizance by Digby alleged that W. M., P. F., and J. H., for a long space of time, to wit, &c., ending, &c., and from thence until and at the same time when, &c., held and enjoyed an undivided moiety of the said closes, in which, &c., with the appurtenances, as tenants thereof to defendant Shewin, by virtue of a certain demise thereof theretofore made, at and under a certain yearly rent, to wit, the yearly rent of 147. 1s. 2d., and two others payable, &c., and so justified taking the corn for rent also, at the rent arrear. Plea in bar, that W. M., P. F., and J. H. did mentioned in the avowry: not hold modo et formâ. At the trial before Abbott C. J., Held, that this bar, non tenuit modo et formâ. It appeared in evidence that the tenant held the four closes mentioned in the declaration, evidence supported the avowry. at the last Summer assizes for Lincoln, it appeared in evidence, that W. M., P. F., and J. H., held an undivided moiety of six closes, at the rent mentioned in the avowry, avowry, and it was thereupon objected that this was a Reader now moved accordingly, and contended, that the evidence did not support the avowry. If the rent of 147. 1s. 2d. was payable for six closes, it could not be due as rent of the four closes mentioned in the declaration and referred to in the avowry. It was not perhaps necessary for the defendants to specify what premises were holden, but they should have alleged that the closes in which, &c. were holden (amongst others) at a certain rent, but as the avowry contains a precise allegation that the closes mentioned in the declaration were holden at and under a certain rent, it was incumbent on the defendants to prove the tenancy as alleged. In replevin, the contract upon which the rent becomes due must be truly stated, Brown v. Sayce. (a) The judgment in this case may hereafter be used to prove that the rent of the four closes is 14l. 1s. 2d. ABBOTT C. J. Each part of the land is liable to the whole rent, the defendants might, therefore, properly say that the closes in which the distress was taken were held under the whole rent payable for the six closes. HOLROYD J. The tenant held the portion of the farm mentioned in the declaration at the whole rent, 1826. HARGRAVE against SHEWIN. |