(s) Flureau v. Thornhill, 2 W. Black. 1078; Sikes v. Wild, 1 B. & S. 587, 4 B. & S. 421; Bain v. Fothergill, L. R. 7 H. L. 158.

This rule also applies to contracts to grant a lease of land in which the lessor undertakes to show a good title; Robinson v. Harman, 1 Ex. 850; Hanslip v. Padwick, 5 Ex. 615; Gas Light and Coke Co. v. Towse, 35 Ch. D. 519, 543; Pease v. Courtney, 1904, 2 Ch. 503, 511, 512; see above, p. 78, n. (k).

(t) Engel v. Fitch, L. R. 4 Q. B. 659; Day v. Singleton, 1899, 2 Ch. 320.

(u) 2 W. Black. 1078.

(x) Bain v. Fothergill, L. R. 7 H. L. 158, 207, 210.

Bain v. Fothergill.

Day v. Singleton.

(y) Above, pp. 576 - 578, 743, 744.

(z) S. C, overruling Hopkins v. Grazebrook, 6 B. & C. 31, and Robinson v. Harman, 1 Ex. 855, which decided the contrary. The innocent misrepresentation is not a cause of action for damages; above, p. 739.

(a) Above, pp. 358 - 360.

[b) Bain v. Fothergill,ubi sup.; see also Pease v. Courtney, 1904, 2 Ch. 503.

(e) See Turner, L. J., Williams v. Glenton, L. R. 1 Ch. 200, 209.

(d) Above, pp. 358, 359, and n. (y), 914.

(e) Bay v. Singleton, 1899, 2 Ch. 320.

(f) Consider Jones v. Gardiner, 1902, 1 Ch. 191. Quære, whether this principle should not have been applied in Compton v. Bagley, 1S92, 1 Ch. 313.

(g) Above, pp. 509, 539, n. (q).

Engel v. Fitch.

(h) Engel v. Fitch, L. R. 4 Q. B. 659; Godwin v. Francis, L. R. 5 C. P. 295, 306, 308; Lay v. Singleton, 1899, 2 Ch. 320, 329, 332 - 334: and consider Cornwall v. Henson, 1900, 2 Ch. 298; Jones v. Gardiner, 1902, 1 Ch. 191.

(i) See previous note.

(k) A mortgagor in possession is in the position of a tenant by sufferance at law; notes to Keech v. Hall, 1 Smith, L. C.; Wms. Real Prop. 534, and n. [a), 19th ed.

(l) Above, pp. 446, 419.

(m) Turner, L. J., Williams v. Glenton, L. R. 1 Ch. 200, 208.

A purchaser affirming the contract for sale and claiming damages for the vendor's breach of the agreement is entitled, as we have seen (o), to recover his deposit, with interest. And if the deposit were paid to an auctioneer or other stakeholder, he can recover interest thereon, as damages, from the vendor (p). The purchaser may also claim, as damages, to be recouped, with interest, any other sums he may have paid on account of the purchase money, beyond the deposit (q), or to be compensated for any other property, which he may have parted with, or for any act done to his detriment as part of the consideration for the sale. For where land is agreed to be conveyed for any consideration immediately executed in favour of the person promising to convey, it is impossible to suppose that the parties contracted on the understanding implied in cases like Flureau v. Thornhill (r), where the contract is executory on both sides; and the other party is entitled, as regards the executed consideration, to be placed, as far as damages can do it, in as good a position as if the contract had been carried out (s). It appears, however, that if in such a case the purchaser bought with full notice of the state of the vendor's title (t), and the vendor were prevented from carrying out the contract by a defect in the title and not by his own fault, the purchaser affirming the contract would not be entitled to more than nominal damages for loss of his bargain (u). Where the purchaser affirming the contract has the right to recover his expenses as damages, he is entitled to be recouped his expenses of preparing, stamping and executing the written memorandum of the contract (x), as well as those properly incurred in carrying out the agreement for sale. And under the latter head he may recover his costs of investigating the title (y) and searching for incumbrances (z), or, if the vendor's breach did not occur until after the acceptance of the title (a), the costs of preparing the conveyance (b). And the purchaser may recover the costs due from himself to his solicitor in respect of these items, although the solicitor's bill have not been paid (c). But the purchaser cannot recover any expenses which were purely preliminary to entering into the agreement for sale; as of any negotiations leading up to the sale, or of a survey or a valuation made before the sale for his own information (d). Nor can he get back any expenses of carrying out the agreement, which have been prematurely incurred. Thus, the purchaser is not justified in preparing a conveyance until the vendor has shown such a title as he is bound to accept; and if he do so before that time, he cannot recover the expense of it in case the vendor fail to show such a title and so break the contract (e). So also he should not get the land surveyed until a good title has been shown, and cannot charge against the vendor the expenses of a survey prematurely made (f). But if the land were surveyed after a good title had been shown on the abstract, it is thought that the expense of the survey would be properly incurred (g), and would therefore be recoverable in case of a subsequent breach of the contract. The purchaser cannot recover, as expenses, any loss or outlay incurred in raising the purchase money; as a loss by selling any stock, shares or securities to provide the money (h), or the costs or charges of borrowiug the money (i): but if before the breach the contract had proceeded to such a point that it was reasonable for the purchaser to have the money ready to complete the purchase, he may recover, as damages, interest on any money so lying idle, whether it were actually raised or were only held ready by a third party to be applied to the purchaser's use at call (k). The purchaser cannot recover the extra costs as between solicitor and client of an action for specific performance of the contract brought against him by the vendor and dismissed with costs as between party and party (l), or his own costs of an action for specific performance brought by himself and dismissed without costs on the vendor's failure to prove a good title (m). Where the purchaser has been let into possession pending completion, with liberty to do repairs or make alterations or improvements at his own expense, he cannot recover any money so spent among his expenses of carrying out the agreement (n). A fortiori, he cannot recover any money so spent, where he did the repairs or made the improvements without any express agreement with the vendor authorizing him to do so (o). If the purchaser choose to incur any expenses in assumed furtherance of the agreement after he has been made aware of a definite breach of contract on the vendor's part, he must pay them out of his own pocket and cannot charge the vendor therewith, as damages (p).