sum of money was awarded by him to them by way of compensation for the error: Held, following Collins v. Collins (26 Beav. 306; 28 L. J. (Ch.) 184), that the reference indicated in the condition being one of the quantum of compensation only, was not a reference to arbitration of an existing or future difference within the meaning of the Common Law Procedure Act, 1854, s. 11; and that the plaintiffs had, therefore, no power under s. 13 of that act, to appoint their referee as sole arbitrator. DECLARATION that the defendants put up for sale by public auction certain properties described in certain particulars of sale, and amongst others a property described by the defendants in the particulars as two freehold dwelling-houses and shops, one of which was let "to Mr. Beard at 307. per annum." That amongst the conditions of sale was the following condition: "The several properties are believed, and shall be taken, to be correctly described as to quantities and otherwise, and are sold subject to all chief and other rents, rights of way and water, and other easements if any charged or subsisting thereon. If any mistake be made in the description of any of the properties, or if any error whatever shall appear in the particulars of sale, such mistake or error shall not annul the sale of the lot to which such mistake or error may relate; but in such case a reasonable compensation or equivalent shall be given or taken, as the case may require either way, such compensation or equivalent to be settled by two referees, one to be appointed by either party, or an umpire to be named by the referees before they enter upon the reference, whose decision shall be final." That at the auction the plaintiffs were the purchasers of the said property, upon and subject to the above condition, at the price of 6907., and thereupon the plaintiffs and the defendants agreed that the defendants should sell to the plaintiffs, and that the plaintiffs should buy of the defendants the property so described, at the said price, subject to the said condition. Averment, that a mistake was made in the description of the said property, and that an error in the description of the said property appeared in the particulars of sale to the prejudice of the plaintiffs, to wit, that the property was described in the particulars as of a higher annual rent and a greater annual value than the same then really was, and it was not stated in the particulars, as the fact was, that all the rates and taxes of the houses were, by agreement with the tenant, paid by 1866 Bos V. HELSHAM. 1866 Bos V. HELSHAM. the landlord; that thereupon the plaintiffs became entitled to be paid or allowed by the defendants a reasonable compensation or equivalent in respect of the said mistake or error, to be settled in the manner prescribed by the conditions; that thereupon the plaintiffs appointed a referee to settle such compensation or equivalent according to the condition, and did all things necessary, &c., to entitle the plaintiffs to have the defendants appoint a referee on their part. First breach, that the defendants did not nor would appoint any such referee, but neglected and refused to do so. Second breach, that the defendants failed to appoint an arbitrator or referee according to the condition, or at all, for seven clear days after the plaintiffs had appointed an arbitrator, and had served the defendants with notice in writing to make the appointment of an arbitrator on their part; that the plaintiffs did all things necessary on their part, &c., to entitle them to appoint the said arbitrator, to act as sole arbitrator in the reference, and did thereupon appoint him to act as sole arbitrator; that the said arbitrator duly took upon himself the reference, and duly made his award in writing, and pursuant to the condition awarded that the amount payable in respect of such reasonable equivalent and compensation for the said mistake and error to be paid by the defendants to the plaintiffs was 1137., of all which the defendants had due notice; that the plaintiffs did all things, &c., necessary on their part to entitle them to be paid the said sum by the defendants, yet the defendants did not pay the same. Plea on equitable grounds, setting out all the conditions of sale [the third of which stated that the defendants were selling as trustees and executors under the will of one Percy Sadler; the fourth of which enabled the purchaser within a specified time to make requisitions and objections to the title; and the ninth of which was that set out in the declaration], and averring that the defendants agreed to sell the property therein mentioned to the plaintiffs upon the terms stated; that the defendants had no beneficial interest in the property, but were trustees and executors only; that the plaintiffs, acting under the fourth condition, investigated the title and approved of it; that afterwards the defendants by their deed, in consideration of the sum of 6907., conveyed the hereditaments so agreed to be sold to the plaintiffs in fee, and the plaintiffs accepted the conveyance and paid the purchase-money, and the purchase was then finally completed; that the plaintiffs had, from the time of the execution of the conveyance, been in receipt of the rents and profits; that after the completion of the sale by execution of the conveyance and payment of the purchase-money, and after the lapse of a reasonable time from the completion of the purchase, the plaintiffs discovered and gave notice to the defendants of the alleged error and mistake in the particulars of sale, and until then the defendants had no notice of it; and that the referee was not appointed until afterwards. Demurrer and joinder. J. Brown, Q.C. (Lopes with him), for the plaintiffs in support of the demurrer. First, the liability of the defendants is not affected by their being sued in their fiduciary character. At law they are liable for a breach of their agreement, whether they have or have not a beneficial interest. [This point was conceded on the part of the defendants.] Secondly, as to the first breach, the plea affords no answer. The terms of the ninth condition of sale are perfectly general. They are not limited to errors or mistakes discovered before the completion of the sale by the execution of the conveyance, and that being so the plaintiffs are entitled to compensation at whatever time the error or mistake in the particulars of sale is discovered: Cann v. Cann (1); Thomas v. Powell. (2) Thirdly, as to the second breach, the plaintiffs are entitled to recover the amount awarded by the sole arbitrator appointed by them. The reference indicated in the ninth condition is an arbitration within the meaning of the Common Law Procedure Act, 1854, s. 11, which applies to future as well as to existing differences. The plaintiffs were therefore justified in appointing, under s. 13, an arbitrator to act alone and assess the amount of compensation due to them. Henry Matthews, contrà. First, as to the first breach; although the language of the condition is general, the purchaser cannot recover for errors in the particulars of sale, unless he discovers them before the completion of the sale by execution of the conveyance: Okill v. Whittaker. (3) In Dart's Vendors and Purchasers, 3rd ed. p. 503, it is said that with "some few special exceptions, (1) 3 Sim. 447. (2) 2 Cox Chanc. Cas. 394. (3) 2 Phill. 338. 1866 Bos V. HELSHAM. 1866 Bos v. HELSHAM. a purchaser, after the conveyance is executed by all necessary parties, has no remedy at law or in equity in respect of any defects either in the title to or quantity or quality of the estate"; and the same doctrine is laid down in Lord St. Leonards' Vendors and Purchasers, 13th ed. pp. 232, 233, where the writer remarks that a conveyance executed will not easily be set aside without fraud, or without some unconscionable circumstance being proved whence fraud might be implied. In the same work it is also stated (p. 197) that after contract executed, "a bill cannot be filed simply for compensation, e.g., where the rental of the estate was represented higher than its actual amount": Newham v. May. (1) The "special exceptions" above referred to are cases where there is fraud express or implied on the part of the vendor, or where the estate is sold compulsorily under a decree of the Court, as was the case both in Cann v. Cann (2) and Thomas v. Powell. (3): [KELLY, C.B. It is admitted that there are "special exceptions to the general rule. Is not this one of them? Have not the parties expressly contracted that compensation shall be given whenever the error is discovered? Moreover, the knowledge that the condition is perfectly general in its terms, and unlimited as to time, might well throw a purchaser off his guard during the progress of completing the sale.] The same observation would apply to a case where, as invariably happens, there is an express covenant for title; yet it is clear that no objection to the title can be taken after conveyance executed. Again, the construction contended for is reasonable, and confines the liability of the vendors, who are trustees, within moderate limits. It is warranted, too, by the language of the condition, which only applies to errors whose existence would have annulled the sale: Leslie v. Thomson. (4) This error would not have done so, for there is no warranty that the rent shall be exactly as stated. Secondly, as to the second breach. This is not an "arbitration" within the meaning of the Common Law Procedure Act, 1854, s. 11. In Collins v. Collins (5) it was held that a reference of the price simply of certain property to arbitrators does not constitute an arbitration within that act. But under this ninth (1) 10 Price, 117. (2) 3 Sim. 447. (3) 2 Cox Chanc. Cas. 394. condition of sale, nothing but the quantum of compensation can be assessed. The case is one of valuation only. The condition assumes that the parties are agreed as to there being some error or other, and only empowers the referees to inquire how much is to be given or taken in respect of it. The plaintiffs, therefore, had no right to avail themselves of the provisions of the Common Law Procedure Act, 1854, s. 13, and the award of damages by their sole arbitrator is of no effect against the defendants: Russell on Arbitration, 4th ed. p. 32; Leeds v. Burrows (1); Lee v. Hemingway. (2) J. Brown, Q.C., in reply. I KELLY, C.B. I am of opinion that, as to the first breach in the first count of the declaration, the plaintiffs are entitled to our judgment. It is unnecessary to enter into the nice distinctions which exist between warranties and false representations. acquiesce in the general doctrine laid down on the subject in Sugden's Vendors and Purchasers, and in the difference which the author points out between objections entitling a purchaser to annul a contract before completion of the conveyance, and those which may be raised after completion, where a court of equity will not interfere, and there is no remedy at law, even though the objections are well-founded, because they have not been taken in proper time. But in this case, as if with a view of avoiding these distinctions and differences, the parties themselves have expressly contracted that if any mistake be made in the description of the property, or any error occurs in the particulars of sale, such mistake or error shall not annul the sale, but a reasonable compensation, to be assessed in a specific manner, is to be given. Now, here it is to be observed that no distinction is made, though it would have been easy to make it, between an error or mistake discovered before, and one discovered after, the execution of the conveyance. Such a distinction is sought on the part of the defendants to be imported into the contract, although the contract itself is silent. I do not think it necessary so to import it, for this reason, if for no other, that here in order to avoid any inquiry involving delay into the value of the property or its rental, there is an express condition in the terms I (2) 15 Q. B. 305 (note). (1) 12 East, 1. 1866 Bos v. HELSHAM. |