of the general rule as to the assessment of damages for the breach of a contract to sell real property where the bargain goes off on account of a defect in the title. That rule, which is an exception from the general rule of common law, was first laid down in Flureau v. Thornhill (a), as long ago as 1776. It was constantly acted upon until the case of Hopkins v. Grazebrook (b) (which introduced an exception in cases where the vendor was not in possession, on which I shall observe presently). It was again acted upon in Walker v. Moore (c), where Parke J. puts the rule upon what I take to be the true ground, namely, that it is implied from the usage of this particular business. He says, p. 422, "a jury ought not, in the case of a vendor in possession, to give any other damages in consequence of a defect being found in the title than those which were allowed in Flureau v. Thornhill, which was recognised in Johnson v. Johnson (d), Brutt v. Ellis (e), and Jones v. Dyke (f). In the absence of any express stipulation about it, the parties must be considered as content that the damages, in the event of the title proving defective, shall be measured in the ordinary way, and that excludes the claim of damages on account of the supposed goodness of the bargain." In the more recent case of Robinson v. Harman (g), the general rule was recognised, but the exception in 1861. SIKES V. WILD. (a) 2 W. Bl. 1078. (c) 10 B. & C. 416. (b) 6 B. & C. 31. (d) 3 B. & P. 162. Flureau v. Thornhill does not appear to have been cited by name in Johnson v. Johnson. (e) Sugd. V. & P. App. 7; i. e. the 11th and some other editions. (f) Ib. 8. (g) 1 Exch. 850. 1861. SIKES V. WILD. Hopkins v. Grazebrook (a) was acted upon. In the last case on the subject,-1 ounsett v. Fuller (b),—the cases of Hopkins v. Grazebrook, and Robinson v. Harman (c), were expressly recognised as binding authorities; but the Court of Common Pleas considered the general rule applicable under such circumstances as leaves it very difficult to say to what cases, if any, the exception supposed to be established by Hopkins v. Grazebrook still applies. In the present case, however, it is enough to say that, giving the two cases of Hopkins v. Grazebrook and Robinson v. Harman their fullest effect, the exception established by them is one within which the present case does not fall. Hopkins v. Grazebrook was moved in Michaelmas Term, 1826. The facts were that Hill & Co. had agreed to sell real estate to one Harewood, and Haredefendant, who again wood had agreed to sell it to the (a) 6 B. & C. 31. (e) 1 Exch. 850. (e) Ry. & M. 386. (b) 17 C. B. 660. wrong, that any speculative contract to sell things not in possession was illegal and void, as against the policy of the law. It is upon this ground it seems to me that in Hopkins v. Grazebrook (a), p. 33, he makes the case an exception, because the defendant had entered into a contract to sell "without the power to confer even the shadow of a title." Bayley J., as reported, p. 34, says, "The case of Flureau v. Thornhill (b) is very different from this, for here the vendor had nothing but an equitable title." If this was the ground for the decision it is clearly untenable, and is inconsistent with the last decision in Pounsett v. Fuller (c); but in Walker v. Moore (d) Bayley J. says, p. 420, that in Hopkins v. Grazebrook the Court was of opinion that the defendant was "in fault by representing himself as the owner of the property" when he was not so. Littledale J., who had been one of the Judges in Hopkins v. Grazebrook, but whose reasons are not there reported, says, in Walker v. Moore, p. 422, "it seems to me to be contrary to the policy of the law, that a man should offer an estate for sale before he has obtained possession and a conveyance." Parke J., in the judgment already quoted, tacitly assumes that this had been the ground of the decision in Hopkins v. Grazebrook, as in enunciating the general rule on which he acts he confines it to the case of a vendor in possession. In Robinson v. Harman (e) the vendor had, with the object of bringing about the bargain, expressly stated that, under his father's will, the property was his out and out. In fact, it had been devised to trustees to pay the defendant a moiety of the rent during his life only. If the defendant knew this he was guilty of a fraud; 1861. SIKES V. WILD. (a) 6 B. & C. 31. (c) 17 C. B. 660. (b) 2 W. Bl. 1078. (e) 1 Erch. 850. 1861. SIKES V. WILD. if he was ignorant of it, the transaction must have been so recently after his father's death that the will had not yet been acted upon, and he was not in possession; for, if he had been in possession, he could not be ignorant that he only got half the rents. The report leaves it uncertain how the facts were as to this; and the judgment merely being that the case was not distinguishable from Hopkins v. Grazebrook (a), leaves it uncertain whether the Court thought the exception in question was when there was misconduct, or want of possession, or a want of legal title. In Pounsett v. Fuller (b) the Court of Common Pleas expressly held that the mere want of legal title does not bring the case within the exception in Hopkins v. Grazebrook, which they all seem to consider as depending upon misconduct. My brother Williams expresses doubts, in which I fully sympathize, as to the soundness of the exception in Hopkins v. Grazebrook in any point of view. I do not see how the existence of misconduct can alter the rule by which the damages for the breach of a contract are to be assessed: it may render the contract voidable on the ground of fraud, or give a cause of action for deceit, but surely it cannot alter the effect of the contract itself. And if it be said that the rule depends upon an implied condition resulting from the general understanding of vendors and purchasers (which is the ground taken by Parke J. in Moore v. Walker (c), and I think the true one), and that the usage is such that this implied condition excludes such cases as Hopkins v. Grazebrook, I think that it will be worthy of the consideration of any Court competent to review that case, whether the strong opinion of Lord St. Leonards, repeated in his (b) 17 Com. B. GGO. (a) 6 B. & C. 31. (c) 10 B. & C. 420. 13th edition of Vendors and Purchasers, p. 301, does not shew that the general understanding of conveyancers has been misapprehended. However, it is enough for the decision of the case before us that it is not brought within that exception, however it is understood. The defendants here were not out of possession, nor were they entirely without title. The only ground for imputing misconduct in them was that though they knew that their power of making a title free from incumbrances was precarious, as depending on the stability of the lady's mind, they nevertheless put up the property for sale; but the jury have found that this was done bonâ fide and done reasonably, and it is impossible, I think, to say as a matter of law that there is misconduct in putting property up to sale without disclosing every material fact, as if it was a case of marine insurance. And lastly, though the defendants had not the complete legal title at the time they put the property up for sale, Pounsett v. Fuller (a) is a distinct authority that in the absence of misconduct that does not bring the case within the exception. I am, therefore, of opinion that the rule must be made absolute, and in this judgment my brother WIGHTMAN Concurs. COCKBURN C. J. I regret that I am unable to concur with my learned brothers in holding that this rule should be made absolute in favour of the defendants. I cannot bring myself to think that the immunity which the law allows to a party contracting to sell real estate in the event of his being unable to make out a title, from all liability on the breach of his contract beyond the ex(a) 17 Com. B. 660. 1861. SIKES V. WILD. |