Errors of description; compensation.

(t) 1 Key & Elphinstone, Prec. Conv. 266, 4th ed.; 266, 8th ed.

(u) Above, pp. 33, 43.

(x) 1 Davidson, Prec. Conv. 610, and n., 4th ed.; 520, 5th ed.; 1 Key & Elphinstone, Prec. Conv. 262, 6th ed.: 250, 8th ed.

(y) Flower v. Hartopp, 6 Beav. 476: Curling v. Austin, 2 Dr. &

Sm. 129; and see Sug. V. & P. 26: 1 Dart, V. & P. 153, 154, 5th ed.; 174, 175, 6th ed.; 170, 7th ed.

(z) 1 Davidson, Prec. Conv. 559, 4th ed.: 464, 5th ed.; 1 Key & Elphinstone, Proc. Conv. 267, 4th ed.; 266, 266, 8th ed.

(a) See above, pp. 43,44.

W

10. The execution of the conveyance by the vendor and the payment of the balance of the price by the purchaser on the day fixed for completion are usually the subjects of express provision; and it is generally stipulated that the purchaser shall bear the expense of any assurance or act necessary for getting in or releasing any outstanding estate or interest or perfecting the vendor's title (l); and it is sometimes declared that the purchaser shall bear the expense of the concurrence in the conveyance of all necessary parties other than the vendor (m).

Conveyance.

(b) Nicoll v. Chambers, 11 C. B. 996; Cordingley v. Cheeseborough, 4 De G. F. & J. 379; Whittemore v. Whittemore, L. R. 8 Eq. 603; Re Terry and White's Contract, 32 Ch. D. 14; Dart, V. & P. 740, 6th ed.; 680, 7th ed.; Jacobs v. Revell, 1900, 2 Ch. 858; see below, Chap. XII. Sec. 4.

(c) Dart, V. & P. 741, 6th ed.; 681, 7th ed.; above, pp. 43-45; see below. Chap. XII. Sec. 4.

(d) Joliffe v. Baker, 11 Q. B. D. 255.

(e) Patmer v, Johnson, 13 Q. B.

D. 351

(f) Fliqht v. Booth ,1Bing. N. C. 370; 4 L. J. N. S. C. P. 66; . see below, Chap. XII. Sec. 4.

(g) Re Fawcett and Holmes, 42 Ch. D. 150.

(h) 1 Davidson, Prec. Conv. 468, 5th ed.

(i) See Leslie v. Tompson, 9 Hare, 268; below, Chap. XII. Sec. 4.

(k) 1 Davidson, Prec. Conv. 562, 611, n. (t), 4th ed.; 467,520, n. (i), 5th ed.; 1 Key & Elph. Prec. Conv. 267, 268, 4th ed.; 255, 256, 8th ed,

11. It is usual to provide expressly that the vendor shall be entitled to possession or receipt of the rents and profits and liable to discharge the outgoings up to the day fixed for completion, and the purchaser afterwards; and that the rents and outgoings shall, if necessary, be apportioned for this purpose (n).

Apportionment of rents and outgoings.

12. It is usually stipulated that the purchaser shall pay interest at a specified rate on his unpaid purchase-money, if from any cause whatever the purchase be not completed on the day fixed for completion (o). If the purchaser bind himself to pay interest by an express stipulation in terms like these, he must pay interest in case of delay in completion, notwithstanding that the delay be attributable to the state of the title or otherwise to the vendor; and he will not be relieved from this obligation unless the delay be caused by the vendor's vexatious conduct, dealing in bad faith or gross negligence (p). Nor can he, according to the better opinion, discharge himself from his liability to pay interest by appropriating his money to the purchase (q). Sometimes the contract is so worded as to bind the purchaser to pay interest in case of delay in completion arising from any cause whatever other than the wilful default of the vendor; and in such case the purchaser must pay interest unless the vendor were in wilful default, and such default were the effective cause of the delay (r). In this form the stipulation has been fruitful of litigation, with the result that little else has been clearly established than the futility pointed out by Lord Bowen of attempting a precise definition of the meaning of "wilful default" in such contracts (s), and the question, what conduct amounts to wilful default, can only be solved by consideration of the circumstances of each particular case (t).

Interest in case of delay in completion.

(l) See above, p. 47; 1 Davidson, Prec. Conv. 570, 612, and n., 4 th ed.; 1 Key & Elphinstone, Prec. Conv. 263, 4th ed.; 251, 8th ed.

(m) See above, p. 47.

(n) See above, pp. 49. 60: 1 Davidson, Prec. Conv. 613, 4th ed.; 1 Key & Elphiustone, Prec. Conv. 259, 4th ed.; 247, 8th ed.

(o) See above, p. 50; 1 Davidson, Prec. Conv. 576, 613, 4th ed.: 483, 522, 5th ed.

(p) Sherwin v. Shakspear, 5 De G. M. & G. 517, 529; Bannermcm v. Clarke, 3 Drew. 632; Vickers v. Hand, 26 Beav. 630; William v. Glenton, L. R. 1 Ch. 200; Sug. V. & P. 633-7; Dart, V. & P. 128, 635, 639, 5th ed.: 144. 719, 723, 6th ed.; 140, 661, 664, 7th ed.; and see Re Bayley-Worth-ington & Cohen's Contract, 1909, 1 Ch. 648, 654.

5(2)

13. In conditions of sale by auction the vendor usually reserves the right to re-sell the property, if the purchaser fail to comply with the conditions, and to recover from the purchaser any deficiency in price occurring on the re-sale. But such a stipulation is not commonly inserted in contracts of private sale. A resale under such a condition operates as a rescission of the original contract. The vendor is therefore entitled to retain for his own benefit any excess over the original contract price which may be realised on the re-sale (u).

Right to resell.

(q) Re Riley to Streatfield, 34 Ch. D. 386.

(r) See Re Mayor of London and Tubbs' Contract and Bennett v. Stone, cited below.

(a) Default is said to mean not doing what is reasonable in the circumstances; wilful to imply nothing blameable, but merely the result of the spontaneous action of the will; Bowen, L. J., 31 Ch. D. 174, 175; "moral delinquency, inteutional delay, wilful obstruction on the part of a vendor may be all absent, and yet there may be wilful default"; C. A. 1893, 3 Ch. 281.

(t) See Re Young and Sarston's Contract, 31 Ch. D. 168, where it was held wilful default for the vendor to go abroad two days before the day fixed for completion; Re Hetling and Merton's Contract, 1893, 3 Ch. 269, where a mortgagee was abroad and the vendor relied on a power of attorney from him, which was held insufficient - this was considered wilful default; Re Mayor of London and Tubbs' Contract, 1894, 2 Ch. 524, where the vendors, having omitted to examine their title, misdescribed it in the contract - this was considered by Lindley and Lopes, L. JJ., not to be wilful default, diss. Kay, L. J.; Re Wilsons and Stevens' Contract, 1894, 3 Ch. 546. where it was held wilful default for a vendor of copyholds not to have procured certain admissions necessary to enable him to convey the legal estate; Re Strafford and Maples, 1896, 1 Ch. 235, where Kekewich, J., held it wilful default for a vendor not to have procured the concurrence of necessary parties to the conveyance; Re Woods and Lewis's Contract, 1898, 1 Ch. 433, 2 Ch. 211; North v. Percival, 1898, 2 Ch. 128; Bennett v. Stone, 1902, 1 Ch. 226; 1903, 1 Ch. 509, where four judges were exactly divided in opinion whether it was wilful default for a vendor to insist in good faith upon an unreasonable contention as to the form of the conveyance,