66 good title: Dart's Vendors and Purchasers(1); Johnstone v. Milling(2). Wilful default means literally wilful: In re Mayor of London and Tubbs's Contract(3). The vendor is entitled to retain the deposit: Essex v. Daniells(4); Depree v. Bedborough (5). Skerrett, for the plaintiff, in reply : The defendant had no title whatever on the day for completion; he had no equitable interest: he had merely an equity. He was not in possession as a purchaser: he was in possession merely as a lessee, with an express provision that he was not to assign or part with the possession without the consent of the Wellington Trust and Loan Company. He had no right to call for the concurrence of the company in an agreement. If the plaintiff had gone into possession without the company's consent, he would have run the risk of the defendant forfeiting all his privileges to the company, and would have had a bare right of action against the defendant for damages. The construction of clause 3 of the agreement is immaterial. The plaintiff is entitled to succeed either way. There was to be either cash or an agreement on the 1st of December. In either case there was to be completion on the 1st of December. [STOUT, C.J.-The clauses about the interest are against you.] What is to produce interest is failure to complete. Clause 5 is wholly applicable to clause 3A; it is inapplicable to clause 3B. Clause 6 is applicable to clause 3в, perhaps also to clause 3A. In any case any case" possession means possession with a title made manifest: Tilley v. Thomas(6). Clause 9 cannot take the case out of that doctrine. There was undoubtedly a refusal to show title. And, if there was a refusal, that ends the matter: Dart's Vendors and Purchasers (7). Where there is a deliberate and unqualified refusal, the other party is not bound to wait any time before rescinding, even though (1) 6th ed. Vol. ii. 1088. (2) 16 Q.B.D. 460, 467. (3) [1894] 2 Ch. 524. (4) 32 L.T. 476; L.R. 10 C.P. 538. (5) 33 L.J. Ch. 134. (6) L.R. 3 Ch. 61. (7) 6th ed. Vol. i. 486. S.C. 1901. BODLEY MACDONALD. S.C. 1901. BODLEY the time for completion has not arrived. It is admitted that the plaintiff did not treat the refusal as a repudiation until the 1st of December. A locus pœnitentia was allowed, but MACDONALD. they did not avail themselves of it. There is the same right of immediate rescission where there is no title and no right to get a title; the purchaser is not bound to wait until the vendor can get some third person to join: Forrer v. Nash(1); Hoggart v. Scott(2); Weston v. Savage(3); Brewer v. Broadwood(4): Hatten v. Russell(5): In re Bryant and Barningham's Contract(6); In re Head's Trustees and Macdonald(7); Bellamy v. Debenham(8). [STOUT, C.J.—Here, however, they say they had a right to get the title.] But only on payment of purchase-money. That is a defect of title, not a mere defect of conveyance. There was no power to force the Trust and Loan Company to concur in this sale. The only power was to complete their own purchase and obtain a title. The cases just cited may not require to be applied, (a) because the possession which the contract contemplated was the possession of a purchaser, whilst the possession offered was that of a sub-lessee, and (b) because in those cases there was not a distinct and absolute refusal, whilst here there was. If there was a refusal to give an agreement, a fortiori there was a refusal to give a conveyance. But the substance of the request was to be satisfied as to the title. As to time being of the essence of the contract, it is said that the transfer of the licence is the ground of the hotel cases; but the authorities are quite against that. The principle is applicable wherever there is a transfer of a business as a going concern: Cowles v. Gale(9); Fry on Specific Performance(10); Bythewood and Jarman's Conveyancing(11). Patrick v. Milner(12) was a sale of a reversionary interest; the conditions (1) 35 Beav. 167. (2) 1 Russ. & My. 293. (3) 10 Ch.D. 736. (4) 22 Ch.D. 105, 108. (5) 38 Ch.D. 334. (6) 44 Ch.D. 218; 59 L.J. Ch. 636 (7) 45 Ch. D. 310. (8) [1891] 1 Ch. 412, 417. (10) 3rd ed. 494. (11) 4th ed. Vol. ii. 662. (12) 2 C.P.D. 342. were special, and different from these; and it was not a case of an absolute refusal to show title. It would not now be upheld. Hislop (was allowed to comment on the new cases): Suppose there was a refusal, the right to repudiate at once should have been exercised at once. The plaintiff chose to go on negotiating, and could not afterwards repudiate on the ground of a previous refusal. On the facts, there was no refusal. The line of cases cited as to the right of rescission is inapplicable. Easton v. Montgomery(1) shows the true position. A refusal to get an agreement is not a refusal to get a conveyance. As to time being of the essence, there was no sale of a business, no sale of goodwill. Sales of hotels gene: rally include sales of stock as well as a transfer of licence. Here the furniture was not sold. Cur. adv. vult. STOUT, C.J.: In this case the plaintiff sues for the sum of £500, with interest thercon from the 1st day of November, 1900, until the date of the judgment. The sum of £500 was deposited with the defendant in pursuance of a contract of sale entered into between the plaintiff and defendant for the purchase of land and buildings known as McNab's Gardens." The question that has to be considered in the case, and round which the controversy at the hearing was waged, was whether the plaintiff had properly and lawfully rescinded the contract for sale. If he had, then it was not contested that he was entitled to succeed in the action. The contract was in writing, and contained various provisions. There are three documents-viz., 1, a plan; 2, particulars; and, 3, conditions of sale. On the plan the property is described at length. Part of the description says, "To the ordinary investor the property strongly appeals from another standpoint. Its value as a Its value as a public garden and private hotel "(without licence) is very great.. Having been kept in first 66 (1) 25 Amer. St. Rep. 123, at p. 129. SC.. 1901. BODLEY 66 V. 66 class order as a going concern,' it has a substantial and important value in that respect," &c. The vendor was the defendant. The clauses in the condiMACDONALD. tions of sale that were most discussed are the following: "2. The purchaser shall immediately after the sale pay a deposit equal to ten pounds (£10) per centum of the amount "of the purchase-money into the hands of the auctioneers for "the use of the vendor, and sign the subjoined agreement. 66 "3. The balance of the purchase-money shall be paid by "the purchaser in either of the following ways at his option : “(a.) By a cash payment in one month from the day of sale "-viz., the 1st day of December, 1900. (b.) By executing "an agreement covenanting to pay the balance on the 15th day of June, 1902, such agreement to be prepared by the "vendor's solicitor, and to contain such covenants as to the 'payment of interest and other matters as he may deem necessary in the vendor's interests.' 66 666 66 "4. The purchaser shall pay to the vendor interest on the 'unpaid portion of his purchase-money at the rate of five "pounds (£5) per centum per annum from the 1st day of "December, 1900, until the payment of the whole of the purchase-money. "5. The purchase shall be completed at the offices of the "auctioneers on the 1st day of December, 1900. If from any cause whatever the purchase shall not be completed "at the time above specified, the purchaser shall pay interest 66 on the unpaid portion of his purchase-money at the rate "of ten pounds (£10) per centum per annum from that time "to the time of completion, without prejudice, however, to "the vendor's right to avoid the sale or resell the property, "or to claim a forfeiture of the deposit-money as hereafter "mentioned if he shall think fit. 66 "6. The purchaser shall be entitled to the possession of "the property from the 1st day of December, 1900, all out'goings up to that date being cleared by the vendor; and "all current outgoings, such as insurance, municipal rates, and Government land-tax shall be apportioned for the purposes of this condition." 66 66 S.C. There was power given by clause 10 to forfeit the deposit and to resell the property "if the purchaser shall fail to comply with " the conditions(1). 66 We On the 16th of November, 1900, the solicitor of the vendor wrote the plaintiff asking to know by Monday, the 19th, which of the two courses, (a) or (b), mentioned in clause 3 he would adopt in completing the purchase. On the same day or on the following day the plaintiff elected to complete the purchase under clause (b), and on the 19th the defendant's solicitors forwarded him a copy draft agreement for perusal. On the 21st the plaintiff's solicitors wrote the defendant, saying, "We have searched the title to the land included in the sale, ' and find that no title is registered in Mr. Macdonald. "should be glad to have full particulars of Mr. Macdonald's "title, and we at once inform you that we shall require an agreement for sale in which the owner in fee and all mortgagees and persons having an interest in the land shall join and agree to convey to Mr. Bodley upon payment of the "balance of the purchase-money." This request was met by the defendant's solicitors by their letter of the same date, which, after reciting the particulars that the defendant was the vendor, and the option under clause (b) of clause 3, proceeded as follows: "Mr. Bodley having elected to postpone 66 66 payment of the balance and to execute the agreement, "Mr. Macdonald instructed us to prepare one, and, having regard to the smallness of the deposit and the special character of the property (it being one of which a month of bad management would cause a considerable depreciation "in value), we drew the one which you now return. If Mr. 66 66 Bodley would prefer to withdraw his election and pay cash "our client is prepared to adduce a good title, and will 1901. BODLEY V. MACDONALD. |