1840. METCALFE ย. FOWLER. defendant, his heirs, executors, or administrators, the said Exch. of Pleas, sum of £2115, in full for the absolute purchase of the said estate and premises; and it was mutually agreed between the said parties thereto, that the expenses of making out the title to the said estate and premises, and of a covenant for the production of the original title-deeds, if required, should be paid by the defendant and his heirs; and that the expenses of the conveyance and surrender of the estate and premises to be made in pursuance thereof, should be paid by the plaintiff and his heirs and it was further mutually agreed between the said parties thereto, that in case the purchase of the said estate should not be completed on the said 25th day of March then next, then and in such case the plaintiff was to pay interest on the said purchasemoney, at and after the rate of £4 per cent. per annum, from that time until the said purchase should be completed. The declaration then (after setting forth other stipulations, which it is not necessary to state, and averring mutual promises) alleged as a breach, that, although the plaintiff was always, from the time of the making of the agreement until and upon the said 25th day of March, ready and willing to accept from the defendant, and at the expense of the plaintiff, a good and proper conveyance, &c., of the said premises, in the manner stated in the said agreement, and to pay him the said purchase-money or sum of £2115, as in the agreement also mentioned, and in all things to perform the said agreement on his the plaintiff's part, whereof the defendant afterwards, to wit, on the day and year last aforesaid, had notice; and the plaintiff then requested the defendant to deduce and make, or cause to be made, to the plaintiff a good and sufficient title to the said tenements (except as in the said agreement mentioned), enabling the defendant to convey and assure the same to the plaintiff; yet the defendant did not nor would, on the day and year last aforesaid, or at any other time whatsoever, deduce or make or cause to be made to the plaintiff a good 1840. METCALFE v. FOWLER. Exch. of Pleas, and sufficient title to the said tenements, &c.; and the defendant further deceived the plaintiff in this, to wit, that he had not, on the day and year last aforesaid, or at any other time since the making of his said promise, any such title as aforesaid; by reason of which said several premises the plaintiff not only lost and was deprived of all the benefits and advantages which might and would otherwise have arisen and accrued to him from the said completion of the said purchase, &c., but was put to great charges and expenses, amounting in the whole to, &c., in and about the negotiating and agreeing for the purchase of the said tenements, as aforesaid, and in and about the investigating the title to the same, &c., &c.; and also thereby the plaintiff lost and was deprived of the interest and profit which he might and otherwise would have made and acquired from using and employing the said sum of £2115, provided and kept by him for the completion of the said purchase, amounting to &c., and the plaintiff hath been and is otherwise injured.—There was also a count on an account stated. Pleas-1st, non-assumpsit; 2ndly, as to the first count of the declaration, payment into Court of £20, and no damages ultra.-Replication thereto, damages ultra. At the trial before Lord Abinger, C. B., at the sittings at Guildhall after last Hilary Term, the plaintiff claimed to recover a sum of 717. 4s. 9d.; viz., for the expenses of investigating the title, 381. Os. 4d., and for loss of interest on money paid in to a banker's for the purpose of completing the purchase of the property in question, (which consisted of freehold and copyhold lands, of borough English tenure, at Kirton in Lindsey, in Lincolnshire), 331. 4s. 5d. It appeared, however, that the expenses of investigating the title, incurred up to the 25th March, 1838, the day on which the purchase was, according to the contract, to have been completed, did not amount to £20, the sum paid into Court; but much negotiation took place between the parties after that period, 1840. METCALFE V. FOWLER. and it was not until the 12th January, 1839, that the plain- Exch. of Pleas, tiff served the defendant with a notice of his abandonment of the contract, on the ground of defects in the title. It was objected for the defendant, that upon the declaration as framed, the plaintiff was not entitled to recover any damages accruing after the 25th March, the material day specified in the written contract for the completion of the title, the ground of action being its non-completion on that day, and the subsequent expenses and loss of interest not being a consequence of that default. The Lord Chief Baron reserved the point, and a verdict was found for the plaintiff, damages £41; leave being reserved to the defendant to move to enter a nonsuit. In Easter Term, R. V. Richards obtained a rule nisi accordingly, citing Flureau v. Thornhill (a), and Sherry v. Oke (b) against which Bayley (with whom was Kelly) now shewed cause.The plaintiff is entitled to recover, on this declaration, the expenses of investigating the title, and also the loss of interest which accrued between the 25th March and the day when the contract was ultimately broken off. The declaration contains a sufficient averment of the non-performance of the contract by the defendant, subsequently to the 25th March. It is averred, that the plaintiff was ready and willing to perform his contract on the 25th March; but that the defendant did not, on that day or at any other time whatsoever, deduce a good title to the premises; and that he had not, on that day or at any other time since the making of his promise, any such title. [Alderson, B.-The words "at any other time whatsoever," must be taken to mean at any other time before the day appointed for the completion of the purchase.] (a) 2 W. Bl. 1078. VOL. VI. KKK (b) 3 Dowl. P. C. 349. M. W. METCALFE บ. Exch. of Pleas, Time was not of the essence of the contract; and it was a 1840. question for the jury to determine, on all the circumstances of the case, whether the parties did not treat it as one which was to be completed subsequently to the day originally limited, and whether all the subsequent negotiations did not take place with the assent of the defendant.-He cited Morton v. Lamb (a). FOWLER. R. V. Richards and Gurdon, in support of the rule, were not called upon: and PER CURIAM. The objection made on the part of the defendant is, that the plaintiff, not having averred in his declaration that he was ready and willing to complete the purchase after the 25th March, cannot recover in respect of the expenses of investigating the title, or the loss of interest which accrued subsequently to that day; and we think the objection must prevail. Time is clearly of the essence of such a contract; and if the plaintiff sought damages for loss incurred subsequently to the period limited by the contract for the completion of the purchase, he ought to have framed his declaration accordingly. He was under no necessity of keeping his money at the banker's after the 25th March. The rule must be absolute to enter a nonsuit. Rule absolute. (a) 1 T. R. 125. Exch. of Pleas, 1840. POOLE v. HILL. in covenant by the vendor a gainst the inchaser of lands, tended pur for non pay. ment of the ney according to the contract, that the plain purchase-mo COVENANT. The declaration stated, that, by articles A declaration of agreement, dated the 11th October, 1839, made between the defendant of the one part, and the plaintiff of the other part, [profert], after reciting that the defendant, on the 19th day of April, 1838, entered into four several contracts or agreements with Mr. T. W. Jones, as agent for and on behalf of the plaintiff and other owners of the hereditaments thereinafter described, for the purchase of a messuage or dwelling-house, outbuildings, gardens, orchard, and premises, with nine several fields, closes, pieces or parcels of land or ground thereunto belonging, in the lege that the said indenture more particularly described, lying and be- plaintiff has ing in Hough, in the parish of Wybunbury in the county ready and wilalways been of Chester, and which were then in the several holdings ling to execute need not aver tiff offered or tendered a con defendant; it is sufficient to al veyance to the a conveyance: as, or occupations of the plaintiff, T. Hassall, George Glover, the absence of pulation to the contrary, it is the duty of the purchaser to prepare the conveyance, and tender it to execution. and Anne Steele,their respective assigns or under tenants, an express sti for the several prices or sums of £800, £510, £260, and £350, making together the sum of £1920, exclusive of the timber trees, and saplings of the value of 2s. 6d. and upwards, growing on the said lands; and that all the objections to the title of the said purchased messuage, lands, and premises, (except the want of a conveyance from Miss Anne Maria Hopkins, of the legal estate affecting one moiety of the said messauge, land, and premises, which was outstanding in her as the infant heiress at law of the party in whom such legal estate was last vested), having been cleared up and obviated, the defendant was then desirous, and had proposed and agreed to complete his said purchase and contracts, and to accept a conveyance of the said purchased premises from the plaintiff and the other citing that the contracted with J., as the agent of the plaintiff and the other defendant had owners of the property, for the purchase of the lands therein mentioned, the defendant co venanted with the plaintiff, and the several other parties beneficially interested, to perform such contract by paying the purchase-money on a certain day, &c. :-Held, that this covenant was several, and that the plaintiff might sue alone for the non-payment of his share of the purchase-money, without joining the other parties beneficially interested. 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