Page:Harvard Law Review Volume 9.djvu/139

111 THE RISK OF LOSS. Ill principles discussed in the last paragraph, even though the warranty- had in fact been broken.^ The development of the law in regard to risk of real property under contract of sale has been entirely apart from the law govern- ing sales of chattels, and has taken place in courts of equity rather than courts of law. .The matter was first touched upon by Sir Joseph Jekyll, M. R., who said, " If I should buy an house, and, before such time as by the articles I am to pay for the same, the house be burnt down by casualty of fire, I shall not, in equity, be bound to pay for the house." ^ The leading case on the subject is Paine V. Meller,^ a decision by Lord Eldon. This was a suit for specific performance. The con- tract was made on September i for a conveyance at Michaelmas. Owing to the seller's failure to make out a good title, the convey- ance was not made then, but on December i6th or 17th the parties continued treating with each other, and there was evidence that the defect in the title was remedied to the buyer's satisfaction. On December i8th the house was burned. Lord Eldon held that if the buyer had accepted the title he was bound to complete the purchase, but otherwise not The case is generally cited as a de- cision that the buyer is liable from the date of the contract, and it seems that such is the effect of it, though it has been cited also as 1 See McKnight v. Nichols, 147 Pa. 158. « Stent V. Bailis, 2 P. Wms. 217, 220. The case of Cass v. Rudele, 2 Vernon, 280, S. C. Eq. Cas. Ab. 25, pi. 8, is not in point, because according to the reports the houses in question were destroyed after the purchaser was in default, and, according to a note in the latter report, after conveyance. There is also a whole series of cases which should be distinguished. White v. Nutt, i P. Wms. 6t, may be taken as an instance. That was a suit to enforce a contract to purchase an estate for two lives. Before the time for conveyance one of the lives determined. Specific performance was decreed. This clearly follows from the nature of the contract. The contingency the happening of which lessened the value of the estate was an ordinary one necessarily in the con- templation of the parties. An agreement for the purchase of an annuity is subject to a similar risk. Mortimer z/. Capper, i Bro. C. C. 156. Cf. Popez/. Roots, i Bro. P. C. 370. On the same principle, the case of Akhurst v. Jackson, i Swanst. 85, is entirely right. There a trader agreed to take two persons in partnership for a period of eighteen years, in consideration of a sum payable in several instalments. Five months later, when only one instalment had become due, the trader became bankrupt. It was held that his assignees were entitled to recover the remaining instalments when they became due. Such cases do not differ in principle from appreciation or depreciation in the market value of property between the days of contract and conveyance, and do not fall prop- erly within the subject of this article, which relates to risks not only accidental, but extraordinary-
 * 6 Ves. 349.