Page:Harvard Law Review Volume 9.djvu/151

123 THE RISK OF LOSS, 1 23 % property. Even if, as is not infrequently provided, the vendor's insurance is by agreement to be assigned to the vendee when the property is transferred, or to be held for his benefit in the mean time, either the vendor or the vendee is not protected by the English law.^ Finally, the doctrine of equity here criticised does not follow the analogy of cases indistinguishable on principle. In Taylor v. Caldwell,^ the plaintiff had contracted with the defendant for the hire of a music hall for several specified days. The hall was burned before the time. The action was brought against the owner for damages. The trial court directed a verdict for the plaintiff, but a rule to enter a verdict for the defendant was made absolute. Blackburn, J., at the end of an elaborate opinion, said : " We think, therefore, that the music hall having ceased to exist, without fault of either party, both parties are ex- cused, the plaintiffs from taking the gardens and paying the money, the defendants from performing their promise to give the use of the hall and gardens and other things." ^ It is true the agree- ment could not have been specifically enforced as a whole, because the defendant had agreed to provide certain things necessary for the proposed entertainments besides the hall ; but the principle is stated as a general one, and the case has become a leading author- ity for similar cases. It has not been suggested that the prin- ciple does not apply to a contract that might have been specifically enforced owing to the nature of the property to which it related. The decisions in regard to interest on the purchase money and the rents and profits of the land are inconsistent both with the doctrine that the contract itself makes the vendee owner in equity, and with the doctrine that the vendor is invariably to be regarded as the owner until the transfer of the legal title. It is well settled that the vendor is not entitled to immediate 1 " The common practice of inserting in conditions of sale that the purchaser shall have the benefit of any insurance effected by the vendor exposes the vendor to the dan- ger of having to hand over the insurance money to the purchaser, and at the same time of being liable to the insurance company for an equivalent amount of his purchase money." Dart, Vendors and Purchasers (6th ed.), p- 913; see also p. 197. The pur- chaser is not, without agreement, entitled to the insurance of the vendor. Poole v. Adams, 12 W. R. 683; Rayner v. Preston, 18 Ch. D. i ; King v. Preston, 11 La. An. 95 ; Clinton v. Hope Ins. Co., 45 N. Y. 454, 465. Gilbert v. Port, 28 Ohio St. 276; Reed v. Lukens, 44 Pa. 200, contra. See also Hill v. Cumberland Valley Co., 59 Pa. 474; Parcell v. Grosser, 109 Pa. 617. a 3 B. & S. 826. 8 Page, 840. 17