(l) Leslie v. Tompson, sup.; and see Painter v. Newby, (1853) 11 Ha. 26; 22 L. J. Ch. 871.

(m) Price v. North, (1837) 2 Y. & C. 620; 7 L. J. N. S. Ex. Eq. 9; and see sup. p. 139. See Lethbridge v. Kirhman, (1856) 25 L. J. Q. B. 89.

Difficulty of forcing a more expensive purchase on a purchaser.

In the absence of a condition as to misdescription the rule is that if the vendor is in a position to convey sub-stantially what the purchaser contracted to buy, the Court will, at the instance of the vendor, decree specific performance with compensation in respect of any small and practically immaterial compensation, provided that the vendor has not disentitled himself to this remedy by intentional misrepresentation or otherwise (o).

When vendor entitled to specific performance making compensation for misdescription.

A condition that "the description and quantity stated are believed to be correct; and that the sale shall not be annulled or rendered voidable, neither shall any compensation be required by vendors or purchaser, in case any inaccuracy or omission shall be discovered therein," may bind the vendor, though there has been a serious error, shared in by all parties as to the acreage. But where property, sold under a decree of the Court, was described in the particulars as containing 753 square yards, and in fact contained only 573 square yards, and there was the usual condition against any compensation for misdescription being allowed by either vendor or purchaser, it was held that the condition was intended only to cover small unintentional errors, and that, as the vendor by his counsel insisted on specific performance, the purchaser was entitled to compensation (p).

Case of large excess of acreage, and condition against compensation.

Case of deficiency of acreage, and condition against compensation.

(n) Sug. 14th ed. 320.

(o) Rutherford v. Acton-adams, 1915, A. C. 866, 879, 880; and see the note in Key & Elph. 12th ed. vol. i. pp. 259 and 260.

As to the right to compensation in respect of variations in the quality of the estate, - there does not appear to be any case in which a vendor has obtained an increase of purchase-money, upon the ground of the character of the property being better than he had himself described it.

Variations in quality of estate, no allowance semble in favour of vendor.

On the other hand, the purchase-money is liable to be diminished by deductions, either (1) in respect of proceeds of the estate received, or which ought to have been received by the vendor, and which belong to the purchaser; or (2) in respect of mere deteriorations to the estate; or (3) of original defects in the estate.

Purchase-money, how diminished.

As to deductions of the first description; - We have already seen that the entire inheritance belongs to the purchaser from the date of the contract; but that the profits or income belong to him only from the time fixed for completion. If timber is blown down, or felled, or stone or materials quarried or worked, after the date of the contract, the proceeds must be accounted for at completion; so, the vendor must account for such rents and profits as he has, or might, but for his wilful default (q), have received from the time appointed for completion up to such time as the purchaser has, or might safely have, taken possession (r): and, in one case, where many years' delay had occurred by the default of the vendor, who had received one-third of the purchase-money and retained possession of the estate, he was charged with interest at 4Z. per cent. upon one-third of the rents (s). In one case in which completion had been delayed without any _ fault on the part of the purchaser, and the vendor received rents after the date fixed for completion, it was held that the vendor could not appropriate the money so received to rent due at the date of the contract, or subsequently but before the date fixed for completion (t).

By proceeds of estate received or which might have been received by vendor.

(p) Whittemore v. W., (1869) 8 Eq. 603; and see this case discussed in Re Terry and White, (1886) 32 Ch. D. 14; 55 L. J. Ch. 345. Of. Re Courcier and Harrold's Contract, 1923, 1 Oh. 565.

(q) Acland v. Cuming, (1816) 2 Mad. 28; Wilson v. Clapham, (1819) 1 J. & W. 36; see Crosse v. Duke of Beaufort, (1851) 5 Do G. & S. 7; Moloney v. Henshaw, (1891) 29 L. R. Ir. 352; Bennett v. Stone, 1903. 1 Ch. 509; 72 L. J. Ch. 240. See sup. p. 543.

(r) See sup. p. 543.

(s) Burton v. Todd, (1818) 1 Sw. 255. See the order, ib. 263, 264.

As to deductions of the second description; - The vendor from the date of the contract holds the estate in trust for the purchaser, subject to payment of the purchase-money (u); with a right, until the time fixed for completion, to receive the interim profits; and his fiduciary position demands that he shall, while in possession, take reasonable care to preserve the property in a fair state of preservation, and, so far as may be, as it was when the contract was made (x). If, therefore, by his wilful acts (y), or mere negligence (z), he cause or permit the property to deteriorate (a), - as by allowing hedges and fences to get out of repair, or the land to remain uncultivated (b), or by an improper course of husbandry (c), or by determining tenancies without the purchaser's consent, or acting so improvidently as to occasion their loss (d), or permitting injury by trespass to the land (e), or by improperly neglecting to relet (f), - the purchaser is entitled to an allowance: and, of course, deterioration may be of such a nature, or to such an extent, as to relieve him from the contract: and the vendor must answer for deteriorations occasioned by the conduct of his tenant, even though the lease has expired (g).

By amount of deteriorations to estate through fault of vendor.

(t) Plews v. Samuel, 1904, 1 Ch. 464.

(«) See Royal Bristol Permanent Building Soc. v. Bomash, 35 Ch. D. pp. 397 - 398; and see sup. p. 265.