HYNDMAN-JONES J

In this case the Plaintiff sought to recover $11,500 damages for loss of profit; or in the alternative the return of $500 and interest thereon at the rate of 7% from the 28th July, 1900, until judgment. The case was very carefully argued on both sides. Two points were raised for the defence.

(I) That the Plaintiff was not entitled to maintain the action because he did not tender a conveyance for execution or the purchase money, a condition precedent to the enforcement of his rights.

(2) That if he were entitled to maintain the action then so far at all events as what have been called profit damages were concerned he could not recover.

With regard to the first point the doctrine is well established that the purchaser cannot as a rule sue upon his contract without tendering the conveyance and the sum, if any, due on account of the purchase money; but to that doctrine there are exceptions, one of which is where the Vendor has neglected to furnish an abstract of title; another exception is where the Vendor has disabled himself from performing his part of the contract. It was urged that it is not the practice in the Colony to furnish abstracts of title and further that the title deeds themselves were in the hands of the Chitty to whom the property had been mortgaged. No evidence was given on this point, but even were the title deeds still in the hands of the Chitty the Defendant under s. 18 of the Conveyancing Ordinance of 1886 could have easily obtained copies or extracts of them and so have furnished the Plaintiff with the material necessary to enable him to tender a conveyance. I cannot therefore hold the Defendant in any way absolved from the obligation which lay on him to comply with the terms of the notice of October 9th (Exhibit G), the fulfilment of which obligation was a condition precedent to his right to rely on the fact that the Plaintiff has not tendered a conveyance. It was, indeed, urged that the Defendant might not have understood the terms of the notice but the answer to that appears to be that the notice was in the hands of his solicitors on October 11th or two days after he received it.

As to a tender of the purchase money if we turn to the agreement of the 28th July, 1890, we find that the Defendant received $500 as earnest money, and that it was agreed between the Plaintiff and the Defendant that "after YEO BIAN HONG has obtained "letters of administration both parties will go to a lawyer's office and "make a new deed and the balance of the purchase money will be "paid and settled." A perusal of the correspondence shows that so far as the Plaintiff was concerned he was most anxious to perform his part of the contract but that the Defendant for one reason or another kept putting him off until finally the property was conveyed by YEO BIAN HONG to another party. Under these circumstances the Plaintiff cannot be held responsible for not tendering a conveyance and the purchase money; and the first ground of defence therefore fails.

Coming now to the second point. The Common Law rule as to damages is that when a party sustains a loss by reason of a breach of contract then he is, so far as money can do it, to be placed in the same position with respect to damages as if the contract had been performed. There is a qualification to that rule which was first recognised in the case of Flureau v. Thornhill 2 W. Bl. 1078, decided in 1776, viz., that upon a contract for the purchase of real estate if the Vendor without fraud is capable of making a good title the intended purchaser is not entitled to any compensation for the loss of his bargain. There was an exception to that qualification introduced in the case of Hopkins v. Grazebrook 6 B & C 31, decided in 1826, which with drew the protection of the rule in Flureau v. Thornhill 2 W. Bl. 1078 from those cases in which a person who knew that he had no title to real estate yet entered into an agreement to sell it; in other words when he had been