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Pips (Leisure Productions) Ltd. v Walton, (1982) 43 P. & C.R. 415

Title
Pips (Leisure Productions) Ltd. v Walton, (1982) 43 P. & C.R. 415
Content

415

Pips (Leisure Productions) Ltd. v Walton

Chancery Division

V.-C. Sir Robert Megarry

April 29, 30, May 1 and 23, 1980

By a letter dated November 8, 1979, the plaintiff vendors purported to confirm their acceptance of an offer by the defendant purchaser to purchase the vendors' lease of certain premises for 21 years from April 16, 1974, for £170,000, subject to the purchaser's references being accepted by the lessors. The letter also stated that both parties would use “their best endeavours” to complete by December 3, 1979. The purchaser signed a duplicate copy of the letter to show that she accepted its terms. In the purchaser's “Inquiries before Contract” one question was “Has the lessor complained of any breach of covenant?” The vendors' solicitors replied “No.” There was no completion. On March 16, 1980, the vendors issued a writ against the purchaser seeking specific performance and damages and alleging that they were and had been “at all material times, ready and willing to complete the contract.” But the purchaser learnt from the lessors that on October 1, 1979, they had issued a writ against the vendors claiming forfeiture of the lease and arrears of rent dating back to September 1978 and amounting to over £32,500, with mesne profits at the rate of £35,000 a year until possession was delivered up. That writ was served on October 2 or 3, 1979. On that date the lease was forfeited. The lessors obtained judgment in default of defence on November 28, 1979. On January 3, 1980, the vendors issued a summons claiming relief against forfeiture and a stay of execution. That summons was pending. The purchaser's solicitors wrote to the vendors' solicitors stating that the vendors were in breach of contract as never having been ready and willing to make title, and giving notice that the purchaser accepted the vendor's breach of the alleged contract and repudiation and treated the contract as rescinded. The vendors entered interlocutory judgment against the purchaser in default of defence for damages to be assessed, having abandoned the claim to specific performance.

On the purchaser giving notice of motion to strike out the statement of claim under R.S.C., Ord. 18, r. 19 and to set aside the interlocutory judgment:—

Held, that time was of the essence of the contract in this case, since the property being sold was a wasting asset which, if there was any delay in completion, would not be of the same value at the time of sale and there were no words in the contract which prevented time being of the essence; that even if time was not of the essence the purchaser validly rescinded the contract on discovering that the vendors had no title; that the vendors' lack of title at both the completion date and at a reasonable time thereafter provided a complete answer to the vendors' claim for damages; and that, accordingly, the interlocutory judgment for damages obtained by the vendors should be set aside, the statement of claim struck out and the action dismissed.416

MOTION.

The defendant purchaser, Martha Walton, gave notice of motion under R.S.C., Ord. 18, r. 19, seeking to strike out the statement of claim of the plaintiff vendors, Pips (Leisure Productions) Ltd., in the vendors' action for specific performance of an alleged contract for sale of certain leasehold premises.

Representation

• T. J. Craven for the purchaser.

• Robert Wakefield for the vendors.

Cur. adv. vult.

Sir Robert Megarry V.-C.

May 23. read the following judgment. This is a motion by the defendant to strike out the statement of claim under R.S.C., Ord. 18, r. 19, as being frivolous and vexatious, or an abuse of the process of the court, and also under the inherent jurisdiction, and for an order dismissing the action. The facts are relatively simple, but they raise points of principle on the law of vendor and purchaser. By a letter dated November 8, 1979, the plaintiffs, a limited company which I shall call “the vendors,” purported to confirm their acceptance of an offer by the defendant (whom I shall call “the purchaser”) to purchase the vendors' lease of certain premises for £170,000, subject to the purchaser's references being accepted by the  landlords. The letter stated that the term of the lease was 21 years from April 30, 1974; in fact, it is 21 years from April 16, 1974, though no point has been taken on this. The letter also stated that “it is understood that both parties will use their best endeavour to complete the purchase by Monday, December 3, 1979.” The purchaser signified her acceptance of the terms by signing a duplicate copy of the letter. For convenience, and without prejudice to the purchaser's contentions, I shall call this letter “the contract.”

No other conditions of sale were stated, and the contract does not appear to be a contract by correspondence within the Law of Property Act 1925, s. 46, so that the contract is indeed an open contract. The purchaser does not accept that the letter is capable of constituting either a binding contract or sufficient evidence in writing of a contract, or even if it is, that there is an enforceable contract. However, even if this is wrong, the purchaser contends that by reason of certain other facts, to which I shall turn shortly, the statement of claim ought to be struck out.

Before I reach these facts, I must carry matters a little further. December 3, 1979, the contractual completion date (if indeed it were such), came and went without much progress having been made. After signing the contract, the purchaser had consulted solicitors; and on November 30 they had sent to the vendors' solicitors a document entitled “Inquiries before Contract.” On December 11, 1979, the vendors' solicitors answered these. One question was “Has the lessor complained of any breach of covenant?”, and the answer to this was “No.” The contract seems to have continued to hang fire until on 417 March 16, 1980, the vendors issued a writ against the purchaser with a statement of claim endorsed upon it. This alleged that the vendors were and had been “at all material times, ready and willing to complete the contract”; and specific performance and damages were claimed.

At that stage a striking set of facts emerged. The purchaser first had notice of these facts in a letter of April 9; and on April 16 a letter from the lessors' solicitors gave the purchaser's solicitors some details. Put shortly, what had happened was this. On October 1, 1979, the lessors issued a writ against the vendors, claiming forfeiture of the lease and arrears of rent dating back to September 1978 and amounting to over £32,500, with mesne profits at the rate of £35,000 a year until possession was delivered up. That writ was served on October 2 or 3, 1979, and so on that date the lease was forfeited, subject, of course, to the subsequent proceedings establishing that the forfeiture was justified. That posed no difficulty in this case, since on November 28, 1979, the landlords obtained judgment in default of defence for possession and the sums claimed by the writ. Over a month went by, and then on January 3, 1980, the vendors issued a summons claiming relief against forfeiture and a stay of execution; a stay for two months seems already to have been granted. That summons had yet to be heard when this motion came before me.

When the purchaser had discovered this, her solicitors wrote to the venders' solicitors about it on April 18. On April 21 they wrote a further letter to them. This stated that the vendors were in breach of contract as never having been ready and willing to make title, and it gave notice that the purchaser accepted the vendors' breach of the alleged contract and repudiation, “whereby our client treats the alleged contract as rescinded.” The vendors' response was to enter interlocutory judgment against the purchaser in default of defence for damages to be assessed, the vendors abandoning the claim to specific performance. This was done on April 24; and on the same day the purchaser issued the notice of motion to strike out the statement of claim which is now before me. When the motion came on, Mr. Craven, on behalf of the purchaser, sought leave to add a prayer to set aside the judgment in default of defence against the purchaser; and in the absence of any objection by Mr. Wakefield on behalf of the vendors, I allowed this amendment. T

he state of affairs is thus as follows. First, on November 8, when the contract was made, the vendors had no lease to sell: it had been forfeited over a month earlier, and no claim for relief had been made. Secondly, the answer given by the vendors' solicitors to the inquiry by the purchaser's solicitors as to whether the lessors had complained of any breach of covenant was blatantly untrue. At this stage I do not propose to comment on giving the answer “No” when the true reply must have been “Yes; and the lessors have issued and served a writ claiming forfeiture for arrears of rent.” When I have concluded this judgment I propose to afford the solicitors concerned an opportunity of explaining how this untrue answer came to be given. 418 Thirdly, when the vendors issued the writ on March 16 claiming specific  performance and damages, and alleged in the statement of claim that the vendors were and had been “at all material times, ready and willing to complete the contract,” the lease had long been forfeited, and the summons for relief had yet to be heard. Having contracted to sell a lease, the vendors at all material times never had more than a hope of obtaining relief from forfeiture.

I cannot see how in any fair sense of the words the vendors could be said to have been “ready and willing” to complete the contract then or at any time in the past; for they had never at any time after the contract was made, had what they had contracted to sell (namely, the lease), or any right to obtain it or require it to be conveyed. True, the customary word “able” does not appear in the assertion; but I do not see how anyone could honestly assert that he is “ready and willing” to do something which he knows that he is unable to do. The words “ready and willing” necessarily connote being also “able”: see, for example, Cort v. Ambergate, Nottingham, Boston and Eastern Junction Rly.1 1 In the words of Lord Abinger C.B. in De Medina v. Norman2 2 : “… The words ‘ready and willing’ imply not only the disposition, but the capacity to do the act.” I appreciate, of course, that pleadings are not on oath; but when I have concluded this judgment I shall listen to any explanation that there may be about how this misleading assertion came to be made.

At the outset, it did not seem to me that there would be much difficulty in deciding the case within the proper limits of R.S.C., Ord. 18, r. 19, and the inherent jurisdiction. There is a measure of impudence about an action for specific performance and damages brought by a vendor who at no material time has had any title or any right to acquire one. As the argument proceeded, however, I found it increasingly difficult to regard the case as being “plain and obvious,” and I began to doubt whether I ought to deal with it either under the rule or the inherent jurisdiction.  However, no point on this was taken by counsel, and in the end, after considerable argument, I came to the conclusion, though by no great margin, that it would be proper to deal with it in this way, and burdensome to require the case to go to trial.

Mr. Wakefield's main contention was that the absence of any title to the lease at the date of the contract was no bar to his success. All that he need do was to be in a position to convey what he had contracted to convey when the time came for completion. Time, he said, was not of the essence of the contract and the purchaser had failed to do what she could have done, namely, to give a completion notice which made time of the essence. He further relied on the decision in Meadows v. Clerical Medical and General Life Assurance Society3 3 as showing that after a lease has been forfeited, it still retained some shadowy 419 form of existence so long as an application for relief against forfeiture was pending. The decision in that case was that such a lease had not come “to an end by … forfeiture” within the Landlord and Tenant Act 1954, s. 24 (2), and so it sufficed a tenant as supporting a claim to a new tenancy under that Act. Accordingly, the vendors were not in the position of vendors who had no title whatever to the lease that they had contracted to sell. It clearly sufficed a vendor if between contract and completion he perfected his title, as by obtaining consents to assign or getting in an outstanding legal estate, and so here it sufficed the vendor if relief against forfeiture was obtained before actual completion.

Mr. Wakefield further contended that as it sufficed the vendor if he could show that title could be made by a third party whom he could compel to convey the land, it sufficed if the vendor had, as in the present case, a strong prospect of obtaining the lease by being granted relief against forfeiture. Mr. Wakefield supported this contention by saying that where a vendor's power to compel a third party to convey the land sprang from the vendor having made a contract with that third party to buy the land from him, the vendor's power to convey depended upon his right to specific performance of the contract; and as specific performance was a discretionary remedy, and the vendor had no real certainty of being able to compel the third party to convey the land, it was plain that a high degree of probability, falling short of certainty, sufficed for this purpose. Correspondingly, he said, a lessee seeking relief against forfeiture for non-payment of rent had a high degree of probability of obtaining relief, and so this sufficed.

I shall first consider whether time was of the essence for the contract. As a matter of language, plainly it was not. There was nothing in the contract to make time of the essence, and no notice to make time of the essence had been given. Nor does the language of the contract encourage any inference that time is to be of the essence: the agreement is not that the parties will complete on December 3, 1979, but that they will “use their best endeavour” to complete it by then. However, time may, of course, be made of the essence of the contract by force not of the language of the contract but of the subject-matter. One instance of this is where the property sold is a wasting asset.

In Hudson v. Temple4 a lease for 30 years was sold when nearly five and a quarter years had run; and a term in the contract made time of the essence. Sir John Romily M.R. said that time had not only been made of the essence by express stipulation,5 “but the character of the property sold would of itself make time of the essence of the contract, for where the property is wasting, as if a man agree to take a lease of mines, or to purchase leaseholds, time is of the essence of the contract…” The report completes the sentence with the four words “where it is specified”; but this seems plainly wrong. It is contrary to the sense of the passage, and there is no trace of these four words 420 in other reports of the case.6 The passage in the Law Journal report, for instance, runs: “If a property is wasting or running out, pending the completion, as in cases of leaseholds and mines, equity itself makes time of the essence of the contract.” I may add that the reprint of Beavan's report in English Reports7 makes what is, after all, “late Beavan,” even worse, by printing “wasting” as “vesting.”

In the case before me, the lease was for 21 years from April 16, 1974, so that over five and a half years had run at the date of the contract. A lease for 21 years with less than 15 and a half years to run is even more of a wasting asset than the lease for 30 years with over 24 and a half years to run that was the subject of Hudson v. Temple.8 Accordingly, apart from the language of the contract, I would hold that time was of the essence of this contract. Mr. Wakefield invited me to refuse to follow Hudson v. Temple; but he failed to persuade me that there were any good grounds for doing so. The principle, I think, is that time is of the essence where what is sold is property “which by delay will not be of the same value as at the time of sale”: Withy v. Cottle,9 per Lord Eldon L.C. The question, then, is whether the language of the contract prevents time being of the essence.

It is now clearly settled that under a contract for the sale of land with a fixed date for completion, the contract has the same meaning in law and in equity, and that it is broken, both at law and in equity, if completion does not take place on that date, even if time has not been made of the essence. The intervention of equity in cases where time was not of the essence was, first, by way of allowing proceedings for specific performance to be brought even though the date for completion had passed, and, second, I think, by preventing a party in proceedings at law from treating the contract as having been determined by repudiation merely by reason of failure to complete on that date. See generally, Raineri v. Miles,10 affirmed by the House of Lords on April 24, 1980.11 I must therefore first determine the meaning of the contract in this case, and then consider whether it has been broken, and, if it has, what are the consequences of the breach.

I would construe a contract by the parties to “use their best endeavour” to complete a purchase by a given date to mean what it says. “Best endeavours” are something less than efforts which go beyond the bounds of reason, but are considerably more than casual and intermittent activities.  There must at least be the doing of all that reasonable persons reasonably could do in the circumstances. I think 421 that this view accords with Terrell v. Mabie Todd and Co. Ltd.12 The question, then, is one of the effect of the words of the contract, thus construed, on time having been made of the essence of the contract by reason of the nature of the subject-matter.

I do not think that the words suffice to negative time being of the essence. Instead, I think that they substitute a time defined not solely by the fixed date of December 3, 1979, but a time defined by that date as qualified by the provision as to best endeavours. The words do not negative the essence but alter the time; the contract is to be completed by December 3 or so soon thereafter as the exercise of the best endeavours of the parties would make it possible to complete. It follows that if one of the parties does not exercise his best endeavours, at any rate after December 3, the other party can claim that the term in the contract as to time has been broken.

Now in this case the vendors, knowing that the lease had been forfeited for non-payment of rent, contracted on November 8, 1979, to use their best endeavours to complete the transaction by December 3, 1979. Only by defeating the action for possession or obtaining relief against forfeiture could they enable themselves to convey what they had contracted to convey. After judgment for possession had been given against them on November 28, 1979, only relief against forfeiture would suffice them: unless they obtained relief, they could not complete on December 3 or, indeed, on any date. How, then, did they discharge their obligation under this head of using their best endeavours to complete by December 3? The short answer is “By doing nothing for two months.” For the first three weeks or so, until judgment for possession was obtained against them on November 28, they did not even seek relief against forfeiture in the lessors' action. Neither in the next four days before December 3 nor in the month following did they apply for relief: they did not issue the summons for relief until January 3, 1980. It seems to me that this delay, whether described as eight weeks from the date of the contract, or five weeks from the order of possession, could not possibly be described as anything short of a substantial breach of the vendors' obligation to use their best endeavours to complete by December 3.

That is not all. If a vendor contracts to use his best endeavours to complete by a given date, I think that the purchaser is entitled to assume that the endeavours are to be endeavours which relate to a normal conveyancing transaction on the facts known to the purchaser. If a vendor contracts to sell land without revealing that he has no title to it, and no right to compel it to be conveyed, I do not think that he can claim that the time while he is using his best endeavours to acquire the land is time which can be added on to the given date before he will be in breach of contract. Time taken while the vendor is doing his best to arrange for mortgages to be discharged or necessary consents to be obtained or inquiries or requisitions to be answered is 422 one thing; time taken by his efforts to obtain the title which the purchaser justly assumed that the vendor was already entitled to convey is very much another. If a vendor wishes  to be allowed the time taken in the latter type of best endeavours, he must disclose his lack of title in time for his agreement to use his best endeavours to be understood and construed in relation to it by the purchaser.

In the result, I consider that this was a contract in which time was of the essence, and that long before the purchaser sent her letter of rescission on April 21 the vendors were in breach of their obligation to complete in time; for they had not used their best endeavours to complete on December 3 or, for that matter, reasonably soon thereafter, and they could not rely on any endeavours of theirs to obtain relief from forfeiture as extending their time. If it is necessary to specify a precise date by which completion should have taken place, I would, for the reasons that I shall give later in this judgment, allow not more than 28 days from December 3, thereby making December 31 the last day for completion.

I turn to the other main issue between the parties. If I am wrong in holding that time was of the essence of the contract, and in holding that the vendors were in breach of their obligation to complete, even though no completion notice had been served on them, was the purchaser nevertheless entitled to treat the contract as having been repudiated by the vendors when she discovered that the vendors had no title to the lease? Plainly the purchaser acted promptly enough, for her letter treating the contract as being rescinded was sent on April 21, written a fortnight after the first warning of the vendors' lack of title. But if, contrary to my view, the vendors were still in time to complete then, is it open to a purchaser to treat the contract as being at an end, both at law and in equity, on discovering that the vendor cannot make title or compel someone else to make it? Or must the purchaser wait until the last day for completion has gone by?

The principle was laid down by Sir John Romilly M.R. in Forrer v. Nash13 :

…when a person sells property which he is neither able to convey himself nor has the power to compel a conveyance of it from any other person, the purchaser, as soon as he finds that to be the case may say, “I will have nothing to do with it.” The purchaser is not bound to wait to see whether the vendor can induce some third person (who has the power) to join in making a good title to the property sold. That was a case in equity where specific performance was claimed; it was not a claim for damages at law. In Bellamy v. Debenham14 the principle was applied where the purchaser had treated the contract as being rescinded before the time for completion had expired. There was an alternative claim for damages in that case which failed because 423 the vendor had not got in the title even by the date when completion was due; but Lindley L.J. suggested that the vendor might have been able to claim damages, despite the purchaser's rescission, if the vendor had thereafter completed his title before completion was due.15 In Halkett v. Earl of Dudley16 Parker J. expressed the view that the principle applied only to the remedy of specific performance and did not apply to damages at law. As appears from what Harman J. said in Harold Elliott and H. Elliott (Builders) Ltd. v. Pierson17 the principle is an exception from the ordinary rule that a man may validly contract to sell what he has not got, arising out of the peculiar difficulty of making title to land in England: and see Price v. Strange.18

Now in this case there is no question of specific performance, since the vendors have abandoned any claim to it and have instead entered interlocutory judgment for damages alone. Does the principle apply to such a claim? The dicta that I have mentioned suggest that it does not. However, I am not sure that all the authorities have been duly considered. In Brewer v. Broadwood19 which was not cited in Halkett v. Earl of Dudley,20 Fry J. applied the principle to a case in which the only claim was for damages for breach of a contract which had been made less than six days before the repudiation. In Roper v. Coombes 21 a contract was made in March to grant a lease for 21 years from Michaelmas, with the lessee paying £10 down and £90 in April. The lessor demanded the £90 in April but refused to show his title to grant the lease until September; in fact he had none. The lessee then rescinded the contract and, without waiting for September, sued for the return of his £10. The Court of King's Bench held that he was entitled to it, and also to refuse to pay the £90, since the contract had been validly rescinded by the time that the action had been commenced. This case shows, I think, that as soon as a vendor with no title seeks to enforce the contract against the purchaser, the purchaser may thereupon terminate the contract at law even if the time for completion has not arrived. In the case before me on March 16, 1980, the vendors commenced their action to enforce the contract, and this, if no more, entitled the purchaser to terminate the contract on April 21. Again, in Re Hucklesby and Atkinson's Contract22 on a vendor and purchaser summons not involving any question of specific performance, Eve J. stated the principle, in perfectly general terms, as being the purchaser's right to repudiate the contract as soon as he discovers the vendor's lack of title.

424

I find some difficulty in the concept of a right of rescission which operates in equity but not at law as relieving the purchaser from specific performance, but leaving him exposed to an action for damages if the vendor obtains a proper title before the last day for completion. Contracts for the sale of land differ from most other contracts for sale in that they contemplate a period between contract and completion which will suffice, inter alia, for the investigation of title. If the day after the contract is made the vendor tells the purchaser that he, the vendor, has not title, but that he has hopes of getting title in time for completion, so that until he has got it he cannot deduce title, I cannot see much justice in telling the purchaser that he can rescind the contract forthwith so as to escape from specific performance, but that if he does so he will remain at risk of damages in case the vendor succeeds in obtaining a title in time. Of course, properly drawn conditions of sale may well obviate the difficulty; but as this case shows, not all contracts have such conditions. The vendor is often said to be under a duty to disclose any latent defects in his title; and on this footing it would be strange if, having failed to disclose a complete but latent absence of any title at all, he were to be held able to recover damages if he obtains a title by the time for completion. His so-called duty of disclosure may instead be regarded as more of a warning to him that if he does not disclose latent defect of title he will not be able to require the purchaser to take such title as he has as constituting compliance with his obligation to convey what he has contracted to convey. But however it is put, I would, despite some hesitation, in view of the state of the authorities, hold that upon discovering that a vendor has no title or power to convey what he has contracted to convey, the purchaser may thereupon treat the contract as at an end, both at law and in equity. In saying that, I speak only of defects such as the absence of title in this case, and not of minor deficiencies, removable defects and so on. In the end Mr. Wakefield accepted the view that I have tried to express as being the position at first instance, while reserving his right to challenge it on appeal.

How, then, does this apply to the facts of this case? At the date of the alleged recission the vendors plainly had neither the power to convey the leasehold interest nor the power to compel anyone else to convey it, so that on the face of it the case falls within the principle of Forrer v. Nash.23 Mr. Wakefield's escape from his conclusion was that the vendors, with their pending application for relief against forfeiture, had as great an expectation of being able to convey the leasehold as a vendor who had to rely on the specific performance of his contractual right to compel a third party to convey it: I summarise briefly the argument that I have already set out.

The argument is ingenious; but I think that it is unsound. Contracts for the sale of land are based on ownership and rights, and not on 425 mere hopes or expectations, however well founded. A vendor whose contract is supported by an enforceable right to compel a third party to convey the land has a right in support of his contract; and this is so even if in the event his right proves, exceptionally, not to be specifically enforceable but sounding only in damages. A vendor who has no more than the benefit of an unenforceable promise to give him the land, or a claim to relief against forfeiture, has no right which supports his contract, however well-founded his expectations. If disappointed, he has no claim to specific performance or damages, but only his feelings of regret. In my opinion, a vendor who lacks any title to the land that he has contracted to convey, and also lacks any right to compel a third party to convey it, cannot escape from the principle of Forrer v. Nash24 by pointing to his prospects of obtaining a title by being given relief against forfeiture, however excellent those prospects are. He has power neither to convey the land nor to compel anyone else to convey it, and that is the end of the matter. As for Meadows v. Clerical Medical and General Life Assurance Society25 I do not think this does more than show that for the purposes of the Landlord and Tenant Act 1954, Part II, a subsisting claim for relief against forfeiture prevents a lease from having “come to an end by …forfeiture”; and that is very different from holding that such a claim gives a vendor any title or right to compel the conveyance of the leasehold interest. In the result, I hold that when the purchaser rescinded the contract, the vendors' subsisting claim for relief against forfeiture did not take the case out of the principle of Forrer v. Nash26 and so did not prevent the rescission from being effective.

There is one other aspect to be considered if I am wrong in holding time to be of the essence. If a vendor has no title at the contractual date for completion, that provides the purchaser with a complete defence to an action by the vendor for damages at law for breach of the contract: see Bellamy v. Debenham,27 per Lindley L.J., and per Lopes L.J.28 In the case before me, the vendors had no title either on December 3, 1979, or at any reasonable time thereafter. If a further 28 days is allowed as a reasonable tolerance to take account of the provision for best endeavours,  then still the vendors had no title: they had not even applied for relief against forfeiture. If a contract fixes no date for completion, there is an implied term that completion is to take place within a reasonable time, to be measured by the time needed for the legal business connected with investigating title and preparing documents: see Simpson v. Hughes29 ; Johnson v. Humphrey.30 30 Where, as here, the contract states a date for completion which is qualified by words of best endeavour, I would readily 426 imply a reasonable limit to the time by which the best endeavours may postpone completion; and on the facts of this case 28 days seems ample. Accordingly, at the end of the 28 days, if not before, the purchaser had “a complete defence to an action at law for damages”: I borrow the words of Lindley L.J. in Bellamy v. Debenham.31 31 I cannot see that anything has deprived her of that defence.

It has taken a little while to get there, but in the end the result is clear. The purchaser's contentions are right, and the contract was duly terminated. I say this on three grounds. First, time was of the essence, and the vendors were unable to complete in time. Second, if, contrary to my view, time was not of the essence, the purchaser validly rescinded the contract on discovering that the vendors had no title. Third, in any case the vendors' lack of title at the date fixed for completion provided a complete answer to the vendors' only remaining claim, namely, for damages. Accordingly, I set aside the interlocutory judgment for damages obtained by the vendors on April 24 last, strike out the statement of claim, and dismiss the action. I shall now hear any explanation that may be offered as to the answer to the enquiries before contract that I have mentioned, and as to the assertion in the statement of claim that the vendors were “ready and willing” to complete the contract. Order accordingly.

END OF DOCUMENT


1 (1851) 17 Q.B. 127, 144.
2 (1842) 9 M. & W. 820, 827.
3 [1981] Ch. 70; [1980] 2 W.L.R. 639; [1980] 1 All E.R. 454; (1979) 40 P. & C.R. 238.
4 (1860) 29 Beav. 536. 
5 Ibid. at p. 543.
6 (1860) 30 L.J. Ch. 251, 254; (1860) 7 Jur.(N.S.) 248, 250; (1860) 9 W.R. 243, 246; (1860) 3 L.T. 495, 497.
7 (1860) 54 E.R. 735, 738.
8 (1860) 29 Beav. 536.
9 (1823) T. & R. 78, 80.
10 [1981] A.C. 1050; [1980] 2 W.L.R. 189; [1979] 3 All E.R. 763; (1979) 39 P. & C.R. 129,C.A. 
11 [1981] A.C. 1050; [1980] 2 W.L.R. 847; [1980] 2 All E.R. 145; (1980) 41 P. & C.R., 71 H.L. 
12 [1952] 2 T.L.R. 574.
13 (1865) 35 Beav. 167, 171.
14 [1891] 1 Ch. 412, C.A.
15 Ibid. at pp. 420–421. 
16 [1907] 1 Ch. 590, 596. 
17 [1948] Ch. 452, 455, 456; [1948] 1 All E.R. 939.
18 [1978] Ch. 337, 355; [1977] 3 W.L.R. 943; [1977] 3 All E.R. 371; (1977) 36 P. & C.R. 59, C.A. 
19 (1882) 22 Ch. D. 105. 
20 [1907] 1 Ch. 590.
21 (1827) 6 B. & C. 534.
22 (1910) 102 L.T. 214, 217.
23 (1865) 35 Beav. 167. 
24 Ibid.
25 [1981] Ch. 70; (1979) 40 P. & C.R. 238.
26 (1865) 35 Beav. 167.
27 [1891] 1 Ch. 412, 421.
28 Ibid. at p. 422.
29 (1897) 66 L.J. Ch. 334, C.A. 
30 [1946] 1 All E.R. 460, 463.
31 [1897] 1 Ch. 412, 421.

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