accidental subsequent advantage was nothing, for it had been held, that a contract to sell an estate for a life annuity, if signed, must be executed, though the vendor dies before the end of the first half year. And a specific performance of the agreement was decreed.

Specific performance of a contract by a competent party, and in its nature and circumstances unobjectionable, is as much a matter of course as damages at law."

Mere difference in value though considerable is not of itself a sufficient ground for refusing a specific performance.

A bill for a specific performance of a contract must charge that it was signed by the party, or his agent duly authorized; and that authority must be either proved or admitted before a decree can be made.*

SECT. 4. Of the Vendee's Right of Set-off in Action brought against him by Vendor.

It seems, that if an auctioneer at the time of the sale does not disclose the name of his principal, but sells goods as his own, a purchaser will under such circumstances be entitled, in an action brought against him by the principal for the price of such

a Hall v. Warren, 9 Ves. Jr. 608. White v. Damon, 7 Ves. Jr. 30. b Per Lord Eldon, in Emery v.

Wase, 8 Ves. 517.

Per Lord Eldon, in Howard v. Braithwaite, 1 Ves. & B. 208,

a

goods, to set off a debt due to him from the auctioneer; but as this right is founded upon the principle, that where the buyer has been induced to enter into a contract, under an impression that his contract is with one person, he cannot afterwards be defrauded of the rights which he has against that person by the introduction of a third, to whom he was a stranger; it can only exist in those cases where the purchaser deals with the auctioneer as a principal.

SECT. 5.-Of the Vendee's Right of Action after the Sale has been completed for Deceit and Breach of Warranty.

Ir, after the purchase money has been paid and the sale completed, it appears that there was any defect in the article sold, of which the seller was aware but fraudulently concealed, and which the buyer had not the means of discovering by the exercise of ordinary diligence, the purchaser may maintain an action upon the case for a deceit in the sale.

Thus, in an action upon the case for a deceit in the sale of some pimento, it appeared, that in sales by auction of drugs, it is usual, if they are sea damaged, to express it in the broker's catalogue; and that pimento, although not damaged,

yet if it has been repacked, or is contained in bags that have been discoloured by sea water, produces a less price in the market than pimento of the same quality which has not been repacked nor the bags discoloured, either of those circumstances bringing it into discredit; and it also appeared, that the defendants had purchased the pimento a short time before at a sale, at which it was described as sea damaged, repacked it, and advertised it for sale in catalogues, which did not notice that it was sea damaged or repacked, but referred it to be viewed, with little facility however of viewing it; and they exhibited fair and impartial samples of the quality, and sold it by auction. It was held, that this was equivalent to a sale of the goods as and for goods that were not sea damaged or repacked, and that a an action lay for the deceit."

b

And it has been held, that an action will lie against a vendor for asserting that the estate was let at a higher rent than was actually reserved, as the actual amount of the rent reserved is known only to the vendor and his tenant; and if they are in confederacy, and the tenant refuses to inform the purchaser, he can have no means of obtaining accurate information. And the purchaser may even maintain an action against the vendor, although he did not rely upon the vendor's state

ment of the amount of rent paid, but made further inquiry.**

But the putting down the name of an artist in a catalogue as the painter of any picture, is not such a warranty as will subject the seller to an action, if it turns out that it was not the work of the artist to whom it was attributed.

Thus, where an action was brought to recover damages on the sale of two pictures, one of which was described in the catalogue as a sea piece by Claude Loraine, the other a fair by Teniers, which the defendant had sold to the plaintiff as originals, when in fact they were copies. Lord Kenyon said, "It is impossible to make this the case of a warranty; the pictures were the works of artists some centuries back, and there being no way of tracing the picture itself, it could only be matter of opinion whether the picture in question was the work of the artist whose name it bore, or not. What then does the catalogue import? That in the opinion of the seller the picture is the work of the artist whose name he has affixed to it. The action in its present

Lysney v. Selby, sup.

* A purchaser may maintain an action against a third person, not interested in the property, for a false affirmation made by him with intent to defraud the purchaser; and for the purpose of maintaining this action, it is not necessary to shew either that the defendant was benefited by the deceit, or that he col

luded with the person who was; but it will be sufficient to prove that the representation was fraudulently made. And a material suppression. of the truth will in such case be considered sufficient evidence of fraud, Pasley v. Freeman, 3 Term. Rep. 51. Haycraft v. Creasy, 2 East, 92. Tapp. v. Lee, 3 Bos. & Pull, 367. Eyre v. Dunsford, 1 East, 318

shape must go on the ground of some fraud in the sale. But if the seller only represents what he himself believes, he can be guilty of no fraud. The catalogue of the pictures in question leaves the determination to the judgment of the buyer, who is to exercise that judgment in the purchase."

a

We have seen, that where goods sold are delivered, but in a state different from that in which they appeared or were represented to be at the time of the sale, the purchaser may recover damages against the seller in an action on the case; but it seems quite clear, that where the goods are not delivered at all and the purchase money has -been paid, the purchaser may either declare specially on the contract, and obtain damages for the non-delivery, or he may recover the money which he has paid in an action for money had and re

ceived.

Thus where turpentine in casks was sold by auction at so much per cwt. and the casks were to be taken at a certain marked quantity, except the two last, out of which the seller was to fill up the rest before they were delivered to the purchasers, on which account the two last casks were sold at uncertain quantities, and a deposit was to be paid by the buyers at the time of the sale, and the remainder within 30 days, on the goods being delivered, and the buyers had the option of keeping the goods in the warehouse at the charge of the sellers for those 30 days, after which they were to pay the rent; and the buyers

Jendwine v. Slade, 2 Esp. Ni. Pri. Rep. 572.