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All ER Reprints Extension/[1881-85] All ER Rep Ext/Re Young and Harston's Contract - [1881-5] All ER Rep
Ext 1239

Re Young and Harston's Contract

[1881-5] All ER Rep Ext 1239
Also reported: 31 Ch D 168; 53 LT 837; 50 JP 245; 34 WR 84
COURT OF APPEAL
SIR JAMES HANNEN, BOWEN, FRY, LJJ
12 NOVEMBER 1885
12 NOVEMBER 1885
Vendor and purchaser - Interest payable by purchaser - Wilful default by vendor - Vendor and Purchaser Act
1874 (37 & 38 Vict c 78), s 9 - Jurisdiction on summons to compel return of interest.
Semble, that there is jurisdiction under the Vendor and Purchaser Act 1874 to compel a return of interest paid
by a purchaser to a vendor under a mistake of law.
Where a purchase was to be completed on a fixed day, and if not so completed interest upon the balance of
the purchase money was to be paid by the purchaser, unless the delay arose from the wilful default of the
vendor; and the purchaser paid interest under protest, alleging that the delay in the completion had arisen
from the wilful default of the vendor in going abroad two days before the day fixed for completion, and in not
procuring the concurrence of certain mortgagees:
Held: that the vendor, by going abroad, had been guilty of wilful default within the meaning of the contract,
and must repay the interest, with the exception of a portion in respect of a reasonable period for obtaining the
execution of the conveyance by the mortgagees.
The judgment of Bacon, VC (52 LT 571; 29 Ch D 691) reversed.
Notes
Considered: Pardon v Waugh (1944) 18 WCR (NSW) 114.
Considered: Re Riley and Streatfield (1886) 56 LT 48. Applied: Re Hetling and Merton's Contract, [1893] 3
Ch 269; Re Wilson and Stevens Contract, [1894] 3 Ch 546. Referred and distinguished: Re London Corpn
and Tubbs' Contract, [1894] 2 Ch 524. Applied: Re Woods and Lewis' Contract, [1898] 2 Ch 211. Considered:
Bennett v Stone, [1903] 1 Ch 509; Re Bayley-Worthington and Cohen's Contract, [1909] 1 Ch 648; Re
Hewitt's Contract, [1963] 3 All ER 419.
See Halsbury's Laws of England, 3rd ed, vol 34, p 78.

Cases referred to in argument:

De Visme v De Visme (1849) I Mac & G 336; 14 LTOS 169.
Dyson v Hornby (1851) 4 De G & Sm 481.
Elliott v Turner (1845) 13 Sim 477.
Esdaile v Stephenson (1822) 1 Sim & St 122.
Jones v Mudd (1827) 4 Russ 118.
Sherwin v Shakespeare (1854) 5 De GM & G 517; 24 LTOS 45.
Vickers v Hand (1859) 26 Beav 630.
Wells v Maxwell (1863) 32 Beav 550; 8 LT 713.
Williams v Glenton (1866) 1 Ch App 200; 13 LT 727.
[1881-5] All ER Rep Ext 1239 at 1240
In this case a summons under the Vendor and Purchaser Act 1874 was taken out by the purchasers of
freehold premises known as Baldwyns, Dartford, in the county of Kent, asking that the vendor might be
ordered to return the interest paid by the purchasers to him upon the balance of the purchase money. The
vendor was the trustee in the liquidation of the separate estate of John Gotch Hepburn.
On 10 July 1884 the property was purchased by private contract for 41,000, but subject to conditions of
sale, and a deposit of 3000 was made.
By the third condition of sale, it was provided that the remainder of the purchase money, and the amount of
valuation as thereinafter provided, should be paid on 8 September 1884 at the office of the vendor's solicitor,
at which time and place the purchase was to be completed, "and if from any cause whatever, other than
wilful default on the part of the vendor, the completion of any purchase is delayed beyond the beforementioned day, the remainder of the purchase money and the amount of the valuation is to bear interest at
the rate of 5 per cent per annum from that day to the day of actual payment thereof."
The conditions further provided that objections to, and requisitions on, the title should be sent in within 14
days from the delivery of the abstract, and that the conveyance, which was to be prepared by the purchaser,
should be delivered at the office of the vendor's solicitor before 20 August for execution by the vendor and
other necessary parties.
The abstract of title was sent 15 days after the date of the contract. Requisitions were sent on 6 August, the
vendor's replies were delivered on 12 August, and the purchaser's observations on replies on 15 August.
On 19 August the draft conveyance was forwarded to the vendor's solicitors for perusal.

On 26 August the purchaser's solicitors wrote asking for the return of the draft conveyance at earliest
convenience, and stating that their clients' money would be quite ready on 8 September, and that they would
consequently object to pay any interest if the purchase was not completed on that day.
The solicitors of the vendor replied that the draft conveyance was with the first mortgagees' solicitors, and
would go from them to the second mortgagees' solicitors, and that the terms of the contract with regard to
interest must be observed.
On 3 September the solicitors of the purchaser wrote asking the cause of the delay, and repeating that they
objected to pay interest. The vendor's solicitors returned the draft conveyance on 6 September with a letter
stating that, if they could have the engrossment during the next Monday (8 September), they thought they
could get the vendor to execute it before his departure.
This letter was not received by the purchaser's solicitors till 8 September, but on the afternoon of that day
they sent the engrossment, when they were informed that the vendor had left London for Switzerland on 6
September without leaving his address, which was being asked for in order that the engrossment might be
sent out to him for execution.
On 18 September, the engrossment, executed by the vendor, was returned from Switzerland.
Further delay occurred in procuring execution by the mortgagees. One of the mortgagees was at Whitby and
the other at Dover, and they were not expected to return to town till 3 October.
[1881-5] All ER Rep Ext 1239 at 1241
The purchaser's solicitors, on 27 September, wrote suggesting that the vendor's solicitors should send a
clerk to Whitby and Dover to obtain the execution by the mortgagees, adding that they hoped that payment of
interest would not be required "as the purchase money was ready to be paid on 8 September, and
particularly as the estate was in hand, and no income was recoverable from it."
The vendor's solicitors declined to send a special messenger to Whitby and Dover unless at the purchaser's
expense.
On 14 October the purchase was finally completed; the purchaser paid 38,000, the balance of the purchase
money, together with 183 9s 9d, being interest on such balance at 5 per cent from 8 September. The latter
payment was stated to be under protest, and without prejudice to contemplated proceedings.
On 19 November a summons for the return of this interest was taken out, and dismissed with costs by
Bacon, VC, on the ground that there was no jurisdiction, on a summons under the Vendor and Purchaser Act,
to order repayment: (52 LT 571; 29 Ch D 691).
The purchaser appealed.
Grosvenor Woods for the appellant.
A G Marten, QC, and Northmore Lawrence for the vendor.

SIR JAMES HANNEN:

The question in this case is, whether or not the delay which has occurred in the completion of this purchase
has arisen from wilful default on the part of the vendor. The cardinal point in the case appears to be this,
whether, when a person has entered into a contract to be completed upon a particular day--in this case 8
September--and he, knowing that, goes away upon the 6th to take his autumn holiday, thereby causing the
non-completion of the contract, he has been guilty of wilful default. It seems to me a very plain case, and we
have come to the conclusion that he made default in not being in the position to complete the contract, so far
as it lay with him, upon 8 September, and that was a default of an intentional character on his part, and
therefore wilful. It has been said, indeed, that that reason does not apply, because there had been a delay in
forwarding the engrossment by 20 August under the conditions of sale. It has not been suggested, however,
and nothing has been shown from which we can infer, that there was any blame upon anybody in respect of
that; and we are not now considering whether there has been a default for which damages could be
recovered against anybody by reason of the engrossment not having been supplied by that day, but we are
dealing with a state of facts in which it is established that this contract might have been completed, so far as
Mr Young was concerned, upon 8 September, if he had not gone away to Switzerland. Our judgment,
therefore, is that where a man, knowing that some act has to be done by him on a particular day, goes away
in disregard of that obligation, he is guilty of default, and, doing it intentionally, it is wilful within the terms of a
contract of this kind. But then there undoubtedly still arises the question. What delay was occasioned by his
so going abroad? In the first place, the actual time that it took for the conveyance to be sent to him, and to be
received back, must obviously be taken into account; and that was ten days. But then it is said that, even if
he had been here on 8 September, his signing the conveyance would not have been the end of the matter,
because there were still the signatures of the mortgagees to be obtained. But it appears to us--I am not so
conversant as I wish I
[1881-5] All ER Rep Ext 1239 at 1242
were with subjects of this kind, but I collect from the argument, and I believe it is the opinion of my learned
brethren--that it was the duty of the vendor in this case to obtain the execution by the mortgagees. If, then, it
was his duty to obtain these signatures, undoubtedly a question arises as to what difficulties would have
been found at that season of the year in finding the mortgagees; and I do not think it can be imputed to Mr
Young as a wilful default that they could not be found exactly at the moment the conveyance was brought
back. But we have to deal with this as a jury; and we are not bound, and I do not know that it is possible, to
arrive at any very exact definition of the time which has been lost by reason of Mr Young going abroad, and
so delaying the time when application could be made to the mortgagees. We think we are allowing ample
time if we say that the execution by the mortgagees with due diligence might have been obtained in another
fortnight; and we therefore come to the conclusion that, with the exception of the fortnight, the delay must be
considered as arising from the wilful default of Mr Young, and that therefore the interest must be returned to
that extent.

BOWEN LJ:
I am of the same opinion. The question in the case is what delay (if any) has been caused by wilful default on
the part of the vendor within the meaning of the condition. What does "wilful default" mean in a contract like
this? The term "wilful default" is not a term of art, though the words are in very common use in this class of
contract, and they are in very common use in every other class of business contract with which we are
familiar; and to pursue authorities with a view to defining for all time what is the meaning of the words "wilful
default" in a contract like this, appears to me to pursue citation far beyond the point at which it ceases to be
useful. Default is a purely relative term, just like negligence. It means nothing more, nothing less, than not
doing what is reasonable under the circumstances--not doing something which you ought to do, having
regard to the relations which you occupied towards the other persons interested. The other word which it is
sought to define is "wilful." That is a word of familiar use in every branch of law, and, although in some

branches of the law it may have a special meaning, as used in courts of law it generally implies nothing
blameable, but merely that, there being a person who is acting as a free agent, that which has been done
arises from the spontaneous action of his will. It amounts to nothing more than this, that he knows what he is
doing, and intends to do what he is doing, and is a free agent. Now, if that is all you can get out of the
analysis of these words, it becomes plain that to cite cases to show that you can define more rigidly or
classify every conceivable contingency, with a view to showing what is and what is not wilful default, would
be a delusion and an idle pursuit. You cannot define the words "wilful default" unless you explain them in
perfectly simple words. I only use the definition I have given for the purpose of showing that all definition is
really useless when once you understand the meaning of the simple terms. The next question is whether
there has been wilful default here, and, with regard to that, I entirely agree with the view which has been
taken by the learned president. How can it be said that the vendor knew that the engrossment would not be
ready for execution by 8 September? He ought to have waited to see, but, instead of that, he goes away from
England and is absent on the 8th, which was the day fixed for completion. That being so, we bare to deal
with the question as if we were a jury, and I think a fortnight is sufficient to allow for the execution by the
mortgagees. With the exception
[1881-5] All ER Rep Ext 1239 at 1243
of that fortnight, having regard to all reason and logic, the delay must be considered to have arisen from Mr
Young's wilful default in being absent from England at the time fixed for the execution. Therefore, with the
exception of the fortnight, he must return the interest for the period over which his delay extended.

FRY LJ:
I entertain the same view, and I think that, by this contract of sale, Mr Young undertook, as part of his duty as
a vendor, to execute the conveyance to the purchaser on or before 8 September. On 8 September the
conveyance had been settled, not only as between the vendor and the purchaser, but as between them and
the mortgagees, and the document had been engrossed and was in the hands of his solicitors. Nothing
whatever remained for Mr Young to do but to put his hand to the seal of that document. The reason why he
did not do so on 8 September was because he had gone away to Switzerland. That appears to me to be a
default in the performance of his duty. It appears to me pretty plain that it was a spontaneous act of default
on his part, and consequently the act is wilful. Then it is said that the conditions of sale required that the
engrossment should be delivered on 20 August, and that, in consequence, he was to be allowed 18 days or
more for the execution of the conveyance before 8 September, and that, as it was not delivered till 8
September, Mr Young was set free from the obligation to execute on that day. In my judgment, that argument
must be unsuccessful, and for this reason: that the contract contained no stipulation as to the time within
which the abstract was to be delivered. It did contain stipulations as to the time for sending objections and
requisitions. Those stipulations were observed, and there was no unreasonable delay on the part of the
purchaser as to anything which led up to the delay of the engrossment. Consequently, I think, nothing
released Mr Young from the obligation to execute on 8 September. Futher than that, in my judgment, there
was a wilful default on the part of the vendor in not obtaining the execution of the conveyance by the
mortgagees. He declined to send a messenger at his expense to the places where some of the mortgagees
were residing, and said he would only do it at the expense of the purchaser. That, I think, was an
unreasonable and improper course to pursue. Plainly, the vendor's solicitors understood that it was their duty
to obtain the execution by the mortgagees. They undertook that duty, and it appears to me that they were
guilty of wilful default in the performance of that duty. I think, therefore, that in these two particulars there has
been wilful default on the part of the vendor. Taking into consideration, on the one hand, what the course of
events would have been if Mr Young had done his duty, and, on the other hand, the course of events by his
not doing his duty, I think the justice of the case will be fully met by what my learned brethren have indicated,
viz that the vendor shall repay to the purchaser the whole interest which he has received, except what is
attributable to the 14 days.
Appeal allowed.

Solicitors for the appellant, Crosley and Burn.

Solicitors for the vendor, Hollams, Son, and Coward.