Page:Harvard Law Review Volume 9.djvu/143

115 THE RISK OF LOSS, I15 the loss falls upon the vendor. So too if the loss was due to the vendor's own negligence.^ It has not been considered whether partial destruction of an estate stands on any different footing from total destruction, but no such distinction seems tenable. On any true construction of a promise to convey an estate, the promise is no more fulfilled by conveying the land without the house than by conveying nothing. And any reasoning which requires the vendee to pay when the vendor materially though excusably fails to fulfil his promise must require payment when the vendor totally and equally excusably fails to perform. In a Kansas decision ^ the question of total destruction seems involved. In that case the estate was taken by eminent domain so that the vendor could convey nothing at all. It was held that the vendee must pay the price, becoming thereby of course entitled to the damages payable on account of the taking. In jurisdictions at least where equitable defences and replica- tions are allowed at law, there should be no difference in the effect of a decision on this point by a court of law and a decision of a court of equity. If the promise of the buyer is made expressly conditional on receiving the property in good order, a court of equity can dis- regard the expressed intent of the parties no" more than a court of law. On the other hand, if the promise of the buyer is in terms absolute, this promise should not be held in a court of law subject to an implied condition of performance by the seller, if the contrary is held by a court of equity. The basis of implied conditions is that there is a failure of the consideration for a promise if the per- formance promised in return is not given. Whether there has been such a failure of consideration is a question which should be decided in the same way by a court of law and a court of equity. If it is proper for a court of equity to hold that a vendee before conveyance is in the owner in equity and hence liable for the price, a court of law should hold either that there are no implied conditions that the legal title to the property shall be transferred, and that the property shall be in substantially the same state, or that, if there are such conditions, accidental destruction or injury of the property is an excuse for non-performance. In fact, though most of the decisions holding the vendee not liable have been made by courts of law, and all the contrary decisions by courts of equity or by courts administering both law and equity, it is not probable that 1 Marks v. Tichenor, 85 Ky. 536, 538. 2 Gammon v. Blaisdell, 45 Kan. 221. 16