shall, in all respects, fulfil on his part, the above-written condi tions of sale. As witness my hand, this Purchase-money £ Deposit-money £. Remainder unpaid £. Witness day of The purchaser may sign the following Agreement: I do hereby acknowledge, that I have this day purchased by public auction, lot of the estates mentioned in the abovewritten particulars, for the sum of L. ; and have paid into the as a deposit and in part payment of the said purchase-money; and I do hereby agree to pay the remaining sum of £ , unto , at on or before the day of ; and in all other respects, on my part, to fulfil the above written conditions of sale. As witness my hand, this Purchase-money, £. Deposit-money, £. day of Remainder unpaid £ Witness No. VI. Agreement for Sale of an Estate by Private Contract (m). Articles of agreement made and entered into this day of between A, of, &c. for himself, his heirs, executors, and administrators, of the one part, and B, of, &c. for himself, his heirs, executors, and administrators, of the other part, as follow: viz. The said A doth hereby agree with the said B to sell to him the messuages, &c. (parcels) with their appurtenances, at or for the price or sum of £ and that he the said A will within one month from the date hereof, at his own expense, make and deliver unto the said B, or his solicitor, an abstract of the title of him the said A to the said messuages and premises; and will also, at his own expense, deduce a clear title thereto. And also that the said A, or his heirs, and all other necessary parties, shall and will, on or before the day of next, on receiving of and from the said B, his executors or administrators, the said sum of £ at the costs and charges of him the said B, his heirs, executors, administrators, or assigns, execute a proper conveyance, for conveying and assuring the fee simple and inheritance of and in all the said messuages and premises, with their appurtenances, unto the said B, his heirs or assigns, free from all incumbrances. And the said B hereby agrees with the said A, that he the said B, his heirs, executors, administrators, or assigns, shall and will, on the execution of such conveyance as aforesaid, pay the sum of unto the said A, his executors or administrators. £ And it is hereby further agreed by and between the said A and B as follows: viz. That the conveyance shall be prepared by and at the expense of the said B, and that the same shall be settled and approved of on the parts of the said A and B by their respective counsel; and that each of them, the said A and B, shall pay the fees of his own counsel. day of And that all rates, taxes, and outgoings payable for or in respect of the premises to the , shall be paid and discharged by the said A, his executors or administrators. day of And lastly, that if the said A shall not deliver an abstract of his title to the said B, or his solicitor, before the expiration of one calendar month from the date hereof, or shall not deduce a good and marketable title to the said messuages and premises, before the said day of then and in either of the said cases, immediately after the expiration of the said one calendar month, or the said (as the case may be), this present agreement shall be utterly void to all intents and purposes whatsoever, and the jurisdiction of equity wholly barred; it being the true intent and meaning of the parties hereto, that in the event aforesaid execution of this agreement shall not be enforced by any court of equity, notwithstanding any rule (if such there be) that time cannot be made the essence of a contract, or any other rule or maxim whatsoever (n). In witness, &c. (n) Vide supra, ch. 8. sect. 2. a 4 A provision A provision may also be inserted in agreements, making time the essence of the contract, in case the purchase-money is not paid at the day appointed; but clauses making agreements void if a title is not made, or the purchase-money paid by a stated time, should never be inserted unless it be the express intention of the parties. Where time is not deemed material, clauses to the following effect should be inserted: That the said B and his heirs shall have, receive, and take the rents and profits of the said messuages and premises, from the day of next, for his and their proper use. And that if the said conveyance shall not be executed by the necessary parties, and the said purchase-money paid on or before the said day of then and in such case the said B, his heirs, executors, or administrators, shall from the same day of pay interest for the said purchase-money unto the said A, his executors or administrators, after the rate of per cent. per ann. No. VII. Eratt v. Ellis (0), C. B. Mich. and Hil. Terms, 45 GEO. III. JOHN GOODWIN being indebted to Ellis, the defendant, an auctioneer, deposited the title-deeds of some houses with him, as a security; and gave him a written authority to sell them by auction, at any time before Midsummer, 1803. They were accordingly put up at Garraway's; and not fetching the sum expected, they were bought in by Goodwin. Ellis not being paid, put up the houses again in September, 1804, under the usual conditions. The plaintiff was declared the highest bidder at 3157.; paid a deposit of 757. and signed an agreement to complete the contract. The defendant delivered possession to the plaintiff, who expended about 107. in repairs; and the defendant sent the deeds to the plaintiff's attorney, who approved of the title, and prepared a conveyance; and the defendant undertook to procure Goodwin to attend and execute the deed. Goodwin, however, upon being applied to, refused to complete the contract, which was made without his authority. The plaintiff brought the present action (0) Vide supra, p. 36. to to recover the deposit money and interest, and the expense of perusing the abstract, preparing the conveyance, &c.; and the damages the plaintiff had sustained by losing such a good bargain. The plaintiff gave 3157. for the houses and a surveyor, examined on his behalf, proved that they were worth 7517. The defendant suffered judgment to go by default. Upon the execution of the writ of inquiry of damages, the defendant's counsel admitted, that he was liable to repay the deposit, with interest, and fair expenses incurred in investigating the title, &c. But as it appeared by the declaration that the defendant was only an auctioneer, and Goodwin was the owner, he insisted that the de fendant was not answerable for the difference of value. The sheriff, in his charge to the jury (which was specially summoned), said, it was admitted on all hands, that the deposit and interest, and expenses, must be paid to the plaintiff. With respect to the demand for the loss of the bargain, he thought, that the demand was recoverable; for the defendant had admitted that he had sold the property without authority; but the amount of the damages was in their discretion. They would consider whether it would have sold for 7517. If they believed the surveyor, it would be quite competent to give the whole, or what they pleased. The jury returned a verdict for 3501. being upwards of 2501. as damages for loss of the bargain. The court of Common Pleas, however, granted a rule to shew cause, why the writ of inquiry should not be set aside, and the defendant let in to plead in the action, upon paying into court the deposit money, and interest, and on payment by the defendant to the plaintiff of his costs occasioned thereby, together with his costs of the present application. Upon shewing cause, the court made the rule absolute; on payment to the plaintiff of the deposit, with interest, the costs of investigating the title, and the costs of the action, as between attorney and client. No. VIII. Jones v. Dyke and others (p), Hereford summer assizes, cor. Macdonald, C. B. The circumstances of the case were shortly these. Some estates in Wales having been advertised for sale, the plaintiff came to town, and after some treaty with the defendants, who were the auctioneers employed, he agreed to purchase the estate in question, at £975, and it was agreed that he was to pay the deposit in nine days, and to give his note for it at that date, which he accordingly did. Tuchin, one of the defendants, by the desire of his partner Dyke, gave the plaintiff a receipt for the deposit, and signed a printed particular, which together amounted to an agree ment in writing. In a few hours after this transaction, Dyke and Tuchin called on a friend of the plaintiff's to acquaint him that they had just received a letter from Wales, stating that the estates were sold for more money, and requesting the particular and receipt to be returned; and the plaintiff refusing to relinquish the agreement, and having immediately returned to Wales, they by the next post sent to him his note of hand, and a particular signed by him, both of which he instantly returned. The £100 was tendered in payment of the note, and refused: the residue of the purchase-money was prepared in time, and deposited at a banker's. The plaintiff filed a bill in equity against the owner of the estate, and his trustees for sale, who denied the authority of the defendants to sell, in consequence of which the plaintiff was advised to dismiss his bill. The plaintiff then brought an action against the defendants, in which he proved by two witnesses that the estate purchased was worth £2117. 10s. so that he lost upwards of £1140 by breach of the agreement. It appearing that the defendants had no authority to sell, the plaintiff had a verdict by consent, for 2617. the Judge thinking the items of which that sum was composed reasonable, but the plaintiff did not obtain any damages for the loss of his bargain. The sum of £261 was thus made up: Costs of the plaintiff's solicitor Costs of the trustees in equity, about Interest of £975 from April 1804 to April 1807, Journies to London and Llandilo, about 20 days, } horse-hire and travelling expenses Journey to London £ S. d. 47 19 4 30 0 0 146 5 0 21 0 0 15 15 0 260 19 4 No. |