What damages are, as a general rule, recoverable at Law, for breach of contract.

(i) Bratt v. Ellis, Sug. 14th ed. 812.

(k) Worthington v. Warrington, (1819) 8 C. B. 134; 18 L.J. C. P. 350.

(I) Hanslip v. Padwick, (1850) 5 Ex. 615; 19 L. J. Ex. 372.

(m) Godwin v. Francis, (1869) L. R. 5C. P. 295; 39 L.J. C. P. 121.

(n) Hodges v. Lord Lichfield, sup.; Cockburn v. Edwards, (1881) 18 Ch. D. 449; 51 L. J. Ch. 46, affords an additional reason for this rule.

(0) Maiden v. Fyson, (1847) 11 Q. B. 292; 17 L.J. Q. B. 85.

(p) Wood v. Scarth, (1855) 2K& J. 33, 44.

(q) Noble v. Edwardes, (1877) 5 Ch. D. 378.

(r) Hadley v. Baxcndale, (1854) 9 Ex. 341 ; 23 L. J. Ex. 179 ; Ebbetts v. Conquest, 1895, 2 Ch. 377 ; 1896, A. C. 490 ; 64 L. J. Ch. 702 ; 65 ib. 808 ; Agius x. G. W. Colliery Co., 1899, 1 Q. B. 413; 68 L. J. Q. B. 312.

But on a contract for the sale of land (t), the exceptional rule first laid clown in Flureau v. Thornhill{u), and confirmed by subsequent authorities, is that the purchaser is not entitled to damages for the loss of his bargain, where the vendor through want of title or otherwise (x), having acted in good faith (y), is unable to convey the estate (z) ; but can recover merely his expenses incurred in relation to the attempted purchase: and where a purchaser, upon the delivery of an abstract showing an apparently good title, resold at a profit, and it subsequently appeared, on comparing the abstract with the deeds, that the title was defective, he was not allowed the expenses of the resale; there being nothing more on the part of the vendor than negligence in the preparation of the abstract, and the purchaser himself being equally negligent in reselling before he had tested its accuracy (a).

The rule introduced by Flureau v. Thornhill, which engrafts an exception upon the Common Law, was, however, subsequently held not to apply in two particular cases.

First, in Hopkins v. Grazcbrooh (b), it was held inapplicable to the case of a vendor of real estate contracting with a knowledge that he had no title; the reason "being that the ordinary contract for the sale of real estate is deemed to be made on the implied condition that the vendor has a good title, and that, if he has not, certain expenses only are to be incurred as damages ; which condition is excluded by evidence of the knowledge of the vendor that he has not such a title (c). So, where a vendor who was a partial owner assumed to sell the entire estate, and the sale fell through in consequence of the refusal of his co-owners to concur in it, the purchaser was held entitled to recover his costs of investigating the title and of endeavouring to enforce the purchase, and also the difference between the contract price and the market price of the estate; and the price at which the estate was afterwards sold was treated as prima facie evidence of the market price (d). The same principle was recognized in other cases (c) ; though in some of them the circumstances were held to be such as took them out of the exception introduced by Hopkins v. Grazebrook to the rule established by Flureau v. Thornhill: which rule was considered to be rested upon an implied condition, incident to every contract for the sale of land, that, in the event of the title proving defective, no damages shall be awarded on account of the supposed goodness of the bargain (/) ; and doubts were entertained whether misconduct, though good ground for avoiding the contract, would justify a departure from the rule.

On contract for sale of real estate, no damages for loss of bargain, unless under special circumstances.

(s) Smccd v. Foord, (1859) 1 E. & E. G02 ; 28 L. J. Q. B. 178 ; see, too, Simons v. Patchett, (1857) 7 E. & B. 568; 26 L. J. Q. B. 195.

(t) See Rowe v. London Seh. Bd., (1887) 36 Ch. D. 619 ; 57 L. J. Ch. 179.

(u) (1776) 2 W. Bl. 1078.

See Tyrer v. King, (1845) 2 C. & K. 149, a case of sale by an agent after the estate has been sold by his principal; but query, whether this is essential. See Lord Chelmsford's judgment iu Bain v. Fothergill, inf.

(y) Walker v. Moore, (1829) 10 B. & C. 416, 421.

(z) Flureau v. Thornhill, sup. ; and see Lord Alvanley's remark, Johnson v. /., (1802) 3 B. & P. 162, 167; Clare v. Maynard, (1837) 6 A. & E. 519 ; 6 L. J. K. B. 138 ; and Hanslip v. Padwiek, (1850) 5 Ex. 615; 19 L. J. Ex. 372; Bain v. Fothergitt, (1874) L. R. 7 II. L. 158; 43 L. J. Ex. 243.

(a) Walker v. Moore, sup,

(b) (1826) 6 B. & C. 31, since overruled : see inf. pp. 993, 994, 995.

And secondly, in Engell v. Fitch (g), it was laid down that the rule was inapplicable where the non-performance arises not from a difficulty as to title, but from the fact of the vendor not having first secured to himself the property which he assumes to sell; and, a fortiori, it cannot apply where the failure either to make out the title, or to deliver possession arises, not from the vendor's inability, but from his unwillingness, on the ground of expense or otherwise, to remedy the defect or to procure possession for the purchaser.

(c) Robinson v. Harman, (1848) 1 Ex. 850; 18 L. J. Ex. 202.

(d) Godwin v. Francis, (1870) L. R, 5C. P. 295; 39 L. J. C. P. 121.

(e) See Worthington v. Warrington, (1849) 8 C. B. 134; 18 L.J. C. P. 350; Ponnsett v. Fuller, (1850) 17 C. B. 660 ; 25 L. J. C. P. 145 :

Sikes v. Wild, (1861) 1 B. & S. 587 ; 4 ib. 421 ; 30 L. J. Q. B. 325 ; 32 ib. 375.

(/) See judgment of Parke, J., in Walker v. Moore, (1829) 10 B. & C. 416.

(g) (1868) L. R. 3 Q. B. 314; 37 L. J. Q. B. 145; aff. (1869) L. R. 4 Q. B. 659.

In Engell v. Fitch mortgagees had contracted to sell and to give possession on a specified day, and the purchaser was ready to complete, hut the mortgagor refused to give up possession, and the vendors, rather than oust him, broke the contract; it was held that the purchaser, who had contracted to resell at a profit, was entitled to recover his deposit and expenses of investigating the title, and also damages for the loss of his bargain. Cockburn, C. J., in delivering the judgment of the Court, rested the exceptional rule, which was first laid down in Flurean v. Thornhill, on the ground that, owing to the complicated state of the law of real property, the owner of an estate is often unable to make out such a title as a purchaser is compellable to accept; and the parties are, therefore, only placed on fair terms, if on the purchaser rejecting the title the liability of the vendor is limited to the repayment of the deposit and the purchaser's expenses of investigating the title. But the Court, it is conceived unnecessarily, for the purpose of deciding the case before it, which was a case not of inability but of wilful refusal on the part of the vendor, recognized Hopkins v. Grazcbrook and Robinson v. Harman as authorities; and drew a distinction between the case of an undoubted owner, in actual possession, who fails to deduce a marketable title, and the case of a person who, having merely a contract for purchase, assumes to sell it as if he were the actual owner; the difficulty of making out the title, which exists in the one case, and which justifies the exceptional departure from ordinary principles, being wholly wanting in the other.