interest being made by it, the vendor must pay interest to the purchaser.*

SECT. 2. Of the Vendee's Right to maintain an Action for Non-compliance with the Conditions of Sale.

IF the vendor fails to comply with the conditions of sale, the vendee may maintain an action against him for such non-compliance, or he may rescind the contract, and recover back his deposit, or, as will be seen hereafter in the case of a purchase of real property, file a bill in equity against him for a specific performance."

By bringing an action for the non-performance of the agreement the vendor affirms such agreement.

A purchaser is not entitled to any compensation for the fancied goodness of his bargain which he may suppose he has lost, where the vendor is without fraud unable to make out a good title; and therefore if he affirm the agreement by bringing an action for the non-performance of it, he will obtain nominal damages only for the loss of his bargain."

If the purchase money has been ready and no interest has been made of it, the purchaser may recover interest upon it. And where he declares on the original contract, and lays the expenses in

1078.

Flureau v. Thornhill, 2 Black.

Lewis v. Lord Lechmere, 10

Mod. 503.

2 Burr. 1011.

d Flureau v. Thornhill, 2 Black. 1078. 3 Bos. & Pull. 167.

e Flureau v. Thornhill, ubi sup. Richards v. Barton, 1 Esp. Ni. Pri. Rep. 268.

curred in investigating the title as special damages, he will be entitled to recover them. But interest cannot be recovered under a count for money had and received. Nor can the expenses incurred in investigating the title, &c. be recovered under a count for money paid.

In an action brought by a purchaser for nonperformance of a contract, he will be compelled to deliver to the defendant a particular of every matter of fact which he intends to rely upon at the trial, as having been a cause of his not being able to complete the purchase; but he will not be bound to state in such particular, any of the objections in point of law arising upon the abstract delivered.a But, as we have seen before, where there has been no particular delivered, a plaintiff will be entitled to a verdict, by proving an infraction of the conditions of sale never before mentioned to the defendant.

As the authority given to an auctioneer to sell is personal and cannot be delegated, a purchaser can have no remedy against the owner of property, under a contract entered into by the auctioneer's clerk without the authority of such owner.f

SECT. 3. Of the Vendee's Right to compel a specific Performance by Bill in Equity.

WE have seen, that where a vendor fails to comply with the conditions of sale, the purchaser may either bring an action against the vendor and recover damages for the non-performance, or he may maintain an action against him for the recovery of his deposit; and we now come to the vendee's right to compel a specific performance by bill in equity.

a

The leading case upon this subject, is Coles v. Trecothick, which was a bill filed to compel a specific performance of an agreement for the sale of an estate by the defendant to the plaintiff. It appeared, that the defendant had proposed to convey all his estates to C. and S. in trust, to sell for the payment of his debts: that no conveyances were executed; that it was resolved to dispose of the estate in lots, and that it was divided into 22 lots by the defendant, his solicitor, and the auctioneer, who fixed the prices, but that the trustees did not interfere: that at the sale the principal lot was bought in for 19,350.: and that after the sale a meeting was had to consider of the lots unsold, at which the defendant's solicitor declared, that the defendant had desired him to offer the principal lot to C., the trustee, or to his father, the plaintiff. C. being a trustee, declined the pur

a 9 Ves. Jr. 234.

chase; but he afterwards informed the auctioneer and the defendant's solicitor, that his father would become the purchaser at 20,000l.; whereupon an agreement was written on one of the particulars, and signed for the plaintiff by his solicitor, and by the auctioneer's clerk (who had an authority from the defendant to sell) thus: "Witness E. P., for Mr. S., agent for the seller." The plaintiff's solicitor paid down a deposit of 20007.; but soon after the defendant applied to C., requesting that his father (the plaintiff) would relinquish the purchase, as another person had offered 25,000l., but the plaintiff refused. The defendant, by his answer, insisted that C. was not authorized by his father to offer 20,000l., and he relied on the statute of frauds he also insisted that S. and P. were not authorized to sell, and that the payment of the 2000/. could not be considered a part performance. P. deposed that he signed or witnessed the concontract for S., as agent for the seller in the usual course of business in his absence. C. deposed that he was authorized by his father to offer 20,000/ The Lord Chancellor declared his full opinion that P. as the clerk of S. was in this case an agent lawfully authorized, within the meaning of the statute of frauds, to sign the contract; but his Lordship did not agree that auctioneers' clerks in general had that authority. His Lordship then proceeded to state two questions in this case; first, whether there was any such agreement as the

Court could carry into execution? secondly, if there was, whether the circumstances which had led the parties to contract were such, not as to call upon the Court to say, the contract did not bind them, but that the Court would refuse the plaintiff the relief beyond the law of a specific performance, leaving him to make what he could of his action ⚫ for damages at law? His Lordship said, that this case as a contract was proved beyond all possibility of doubt; it was an agreement made under the sole interposition of the defendant, without any interference of the trustees, except their sanction, and therefore not to be impeached. As to a purchase by a trustee from the cestuique trust, his Lordship agreed, that a cestuique trust might deal with his trustee, so that the trustee might become the purchaser of his estate, but that it was a transaction of much delicacy, and which the Court would watch so diligently that it was very hazardous. Considering this case then, with reference to the delicacy of a purchase by a creditor, (for the plaintiff was a creditor of the defendant) his Lordship said, it was clearly proved that the defendant meant to sell this lot for 20,000l., and that 25,000l. was not offered him till after he had closed with the plaintiff's son. That inadequacy of price was out of the question there; that in fact, inadequacy, unless amounting in itself to conclusive and decisive evidence of fraud, was not a sufficient ground for refusing a specific performance. That

M