Purchaser has no lien for damages.

It has been mentioned (z) that, on breach of an essential stipulation in the contract, the injured party electing to affirm the agreement has the alternative of suing at law for damages for the breach, or suing in equity for specific performance of the contract. Under the present practice, he can pursue these remedies in one action claiming alternative relief (a): but his recovery of judgment for damages will bar his right to enforce the contract specifically, as that is a conclusive election to adopt the legal remedy (b), and the other party's obligation under the contract is then merged in the judgment (c). And if he obtain an order for specific performance of the contract, that will be a bar to his recovering damages for the breach (d); for in equity the plaintiff suing on a breach of contract was required, as a rule, to elect which remedy he would pursue (e); and a man entitled to alternative remedies is barred, after judgment on the one, from asserting the other (f). If an action claiming damages for a breach of the contract he brought against a party thereto, he may counterclaim for specific performance; when, if the counterclaim be successful, the action will fail (g), and vice versâ (h), and the unsuccessful party will be estopped from again asserting a right to enforce the contract (i). And if such a counterclaim were not made, and judgment for damages were recovered, the defendant would equally lose all right to enforce the contract specifically; for the judgment would be conclusive against him that he had committed a breach of contract, so that he could then no longer maintain that he had always been ready and willing to carry out his part of the contract (k). This doctrine, however, applies only in the case of breach of an essential stipulation contained in the contract. If the stipulation broken were not essential, judgment for damages for a breach thereof would not preclude either party from asserting afterwards the right to enforce the main duty of the contract either at law or in equity (l).

A party may sue for specific performance or damages in the alternative.

Judgment for either remedy bars the other.

(x) Jaques v. Millar, 6 Ch. D. 153; Jones v. Gardiner, 1902, 1 Ch. 191.

(y) Cornwall v. Henson, 1900, 2 Ch. 298, 30.5; above, p. 964. Cf. above, p. 950.

(z) Above, p. 947.

(a) Cornwall v. Henson, 1900, 2 Ch. 298. Under the old Chancery practice such alternative relief could not have been obtained inequity; Sainsbury v. Jones, 5 My. &: Cr. 1; and, of course, not at law. After Lord Cairns' Act, stat. 21 & 22 Vict, c. 27, it was possible to claim damages in equity as an addition to or in substitution for specific performance. Under the present practice a party suing in the alternative for specific performance or damages must take care to claim particularly such damages as he is entitled to recover at law for breach of the contract; otherwise his claim for damages may be treated as if it were merely made in substitution for the equitable remedy of specific performance, and may be defeated by anything which would bar his right to specific performance; see Hipgrave v. Case, 28 Ch. D 356; Nicholson v. Brown, 1897, W. N. 52.

(b) Orme v. Broughton, 10 Bing. 533, 638; Sainter v. Ferguson, 1 Mac. & G. 286, 290.

(c) Above, p. 943.

(d) In default of the defendant's compliance with the order, the plaintiff may rescind the con.

If either party to the contract bring an action for its specific performance, and the action be dismissed upon any ground which furnishes a good defence to an action at law for breach of the contract, the unsuccessful plaintiff is estopped by the judgment from proceeding to recover damages for the breach (m), unless the judgment were expressly declared to be without prejudice to the plaintiff's remedy at law (n). If, however, the action for specific performance were dismissed upon any ground (such as hardship or unfair dealing (o)) which affords no defence to an action at law for breach of the contract, the unsuccessful party would not be precluded from afterwards pursuing his legal remedy, notwithstanding that his right to sue at law were not expressly reserved (p). In either case the defendant would not be precluded from suing on the contract at law (q), unless the defence, which he had established to the specific performance of the agreement, involved his own inability to enforce it, as if he had proved that the contract was void for his mistake (r) or for illegality (s).

Effect of the dismissal of tract, but cannot claim damages thereunder; Henty v. Schroder, 12 Ch. D. 666; above, p. 948, n. (m).

(e) Carrick v. Young, 4 Madd. 437; Phelps v. Prothero, 7 De Gr. M. & G. 722, 733, 734; Gedye v. Montrose, 26 Beav. 45, 47; Dan. Ch. Pr. 757, 4th ed.; 2 Dart, V. & P. 993, 5th ed.

(f) Scarf v. Jardine, 7 App. Cas. 345; Morel v. Westmorland, 1904, A. C. 11; and note (b), above.

(g) Green v. Sevin, 13 Ch. D. 589.

(h) Compton v. Bagley, 1892. 1 Ch. 313.

(i) Above, p. 943.

(k) See Walker v. Jeffreys, 1 Hare, 341, 352; Fry, Sp. Perf. Sec. 922, p. 427, 3rd ed.; above, p. 936. It appears that, under the old practice in equity, a judgment for damages at law for breach of a contract was in general a good plea in bar of a suit for specific performance of the contract; Hit-ford on Pleading, 253 (296, 5th ed.); Dan. Ch. Pr. 611-614, 4th ed.

(l) Above, pp. 935, 940, 947.

An action for specific performance.

If the vendor's action for specific performance be dismissed because the Court considers that the title shown is too doubtful to be forced upon an unwilling purchaser (t), it appears that he is not estopped from asserting his remedy at law (u). And at law the vendor is entitled to recover substantial damages (x) from the purchaser if the latter refuse to accept such a title to the land as he had contracted to take, notwithstanding that a Court of Equity, in proceedings for specific performance against the purchaser, would not oblige him to take the title shown, or that to accept the title would expose him to the risk of instant ejectment (y). The question is thus raised, What title does the vendor contract to show according to the construction to be placed on the agreement in a Court of law? As we have seen (z), where the parties enter into special stipulations restrictive of the purchaser's right to investigate the title, these are rigidly enforced at law; and unless the vendor has made a misrepresentation sufficient to justify the rescission of the contract (a), the purchaser is liable in damages for a breach of the agreement, regardless of the fact that in equity the contract is not specifically enforceable or the stipulation is thought to be unfair. With respect to the title contracted to be shown under an open contract, conflicting opinions have been judicially expressed. It has been asserted, on the one hand, that the vendor contracts to show a good marketable title (b); and this would oblige him to show such a title as a Court of Equity would force an unwilling purchaser to accept (c). But against this it has been decided that, according to the true construction of the contract in a Court of law, the vendor is only obliged to prove such a title as a Court of law shall consider to be good; and that, where the title depends on a doubtful point of law, the Court will decide the question and pronounce definitely whether the title is such as should be accepted or not, without regard to the doctrine of equity concerning doubtful titles (d). The weight of authority is in favour of the latter conclusion (e). But where the vendor is claiming damages under the contract, the onus lies on him of proving his title (f); and, as we have seen (g), if his title depend on proof of a fact, the purchaser is not bound at law to accept it, unless the vendor can prove the fact to be reasonably certain. If a vendor should have expressly contracted to show a good marketable title, it is thought that he could not recover damages for the purchaser's refusal to accept the title in case it were too doubtful for a Court of Equity to force upon an unwilling purchaser (h).