268 (23 S. E. Rep. 522). Parties to a contract for the sale of land may make time of its essence, by a distinct provision to that effect in the contract; where they have done so a court of equity will refuse to enforce specific performance in favor of a party who has been in default unless strict performance has been waived. Brown v. Ulrich, 48 Neb. 409 (67 N. W. Rep. 168). After a vendor has accepted delayed payments upon a contract in which time was of its essence, he cannot forfeit such contract for want of payment without first giving his vendee notice of his intention. Monson v. Bragdon, 159 Ill. 61 (42 N. E. Rep. 383). Where the vendee has been in possession and title can be made and there are reciprocal covenants and mutual forbearances, equity will execute the contract at the instance of either party, although the time for the performance has expired, the delay being explained. Mullens v. Big Creek Gap C. & I. Co., Tenn. (35 S. W. Rep. 439). In an ordinary contract for the conveyance of land, in which the purchase money is to be paid at a future day, time is not usually held to be of the essence of the contract. But when the transaction is in the nature of a unilateral contract, where a party is given an option to acquire a right by doing a certain thing within a specified time,—it is held that time is essential, and that in order to secure the right he must comply within the specified period. Johnson v. Portwood, 89 Tex. 235 (34 S. W. Rep. 596). For a collection of authorities on this subject, see Clarno v. Grayson, 30 Ore. 111 (46 Pac. Rep. 426).

Sec. 73.

Breach of land contract-Measure of damages. The measure of the vendor's damage in case of the purchaser's failure to pay the agreed purchase price is the difference between the agreed purchase price and the actual value of the land at the time of the breach of the contract of purchase. Smith v. Newell, 37 Fla. 147 (20 So. Rep. 249). Where there is a contract to convey unimproved land with warranty of title, and the vendee, before conveyance is to be made, erects buildings upon the land without request of the vendor, in an action on contract to recover damages for failure to convey, the vendor's title proving defective, the value of the buildings cannot be recovered by the vendee, Gerbert

v. Congregation of the Sons of Abraham, 59 N. J. L. 160 (35 Atl. Rep. 1121; 59 Am. St. Rep. 578). In an action on contract for a breach of covenant to convey real estate with warranty of title, where the vendor's title is defective, nominal damages only can be recovered. Gerbert v. Congregation of the Sons of Abraham, 59 N. J. L. 160 (35 Atl. Rep. 1121; 59 Am. St. Rep. 578). When the owner of incumbered real estate conveys it to another to secure money which he agrees to advance for the purpose of discharging the incumbrances thereon, he cannot recover more than nominal damages in an action against such grantee for failure to perform his contract, when he had notice of the grantee's refusal to perform his agreement in ample time to procure money elsewhere with which to discharge the liens. Lowe v. Turpie, 147 Ind. 652 (44 N. E. Rep. 25; 37 L. R. A. 233). In an action for the breach of a contract to convey a good title, the plaintiff is entitled to recover "adequate compensation for the actual injury, or as it is briefly expressed, damage for the loss of a bargain." Flecton v. Spicer, 63 Minn. 454 (65 N. W. Rep. 926). For cases which depend upon particular facts and illustrate the measure of damages for the breach of a land contract, see Marsh v. Cavanaugh, 15 Wash. St. 282 (46 Pac. Rep. 239); Warren v. Chandler, 98 Ia. 237 (67 N. W. Rep. 242).

Sec. 74. Breach of land contract-Liquidated damages. Whether the sum mentioned in a contract to be paid upon a breach thereof is to be considered as liquidated damages or as a penalty merely is always a question of law for construction by the court. There is no fixed or settled rule of construction in such case, but, in a large measure, each case must be governed by its facts and circumstances. The sum fixed as security for performance of a contract containing a number of stipulations of widely different importance, breaches of some of which are capable of accurate valuation, for any of which the stipulated sum is an excessive compensation, is a penalty. Where the sum is construed to be liquidated damages it may be recovered by the injured party as upon the special promise to pay that fixed sum. If the sum be construed to be merely a penalty, the injured party must prove

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not only the breach of the contract, but actual damage by reason thereof. The recovery is not limited to the amount of the penalty. Smith v. Newell, 37 Fla. 147 (20 So. Rep. 249).

Sec. 75. Fraud Representations as to amount, quality or value. Ordinarily representations as to amount, quality or value cannot be made the basis of fraud, but when the party making them has superior knowledge in regard to the material facts, makes them with the intention of defrauding the purchaser who relies thereon, the latter may make such representations the ground of his action. Moon v. McKins try, 107 Mich. 668 (65 N. W. Rep. 546); Stochl v. Caley, 48 Neb. 786 (67 N. W. Rep. 783); Brett v. Van Auken, 99 Ia. 553 (68 N. W. Rep. 891). False representations as to value do not ordinarily constitute fraud, Moore v. Recek, 163 Ill. 17 (44 N. E. Rep. 868); but it is otherwise when made by a person occupying a position of trust and confidence in relation to the party relying on them, Manley v. Felty, 146 Ind. 194 (45 N. E. Rep. 74). Mere knowledge of the boundaries of a tract of land do not charge a grantee with knowledge of its area, so as to relieve the grantor from responsibility for his false and fraudulent representations in reference thereto. Cawston v. Sturgis, Ore. (43 Pac. Rep. 656). Citing, Estes v. Odom, 91 Ga. 600 (18 S. E. Rep. 855); Speed v. Hollingsworth, 54 Kas. 436 (38 Pac. Rep. 496); Lynch v. Trust Co., 18 Fed. Rep. 486; Antle v. Sexton, 137 Ill. 410 (27 N. E. Rep. 691); Jackson v. Armstrong, 50 Mich. 65 (14 N. W. Rep. 702); Sears v. Stinson, 3 Wash. 615 (29 Pac. Rep. 205); Ledbetter v. Davis, 121 Ind. 119 (22 N. E. Rep. 744).

Sec. 76. Fraud-Statements of opinion or intention. One who, as an inducement to a sale of land, in good faith, states to the vendee that reliable third persons had represented the land to him as being a certain character, and who at the same time states that he has no personal knowledge in regard to the land, does not thereby adopt such representations as his own, and rescission cannot be had merely because they prove false. The statement that such third persons are relia ble being merely the expression of an opinion, is insufficient

to charge the vendor in an action to rescind, at least where he honestly believed them reliable when the statement was made. Moore v. Scott, 47 Neb. 346 (66 N. W. Rep. 441). The mere expression of an opinion held by the party making it, cannot, standing alone, be held a misrepresentation. The statement must be the affirmation of an existing fact, Brady v. Cole, 164 Ill. 116 (45 N. E. Rep. 438); and not of a future intention, Orr v. Gooloe, 93 Va. 263 (24 S. E. Rep. 1014). Cases depending upon particular facts and which illustrate what constitutes fraud in procuring a real contract. See Beasley v. Swinton, 46 S. C. 426 (24 S. E. Rep. 313); Beckley v. Riverside Land Co., Va. (23 S. E. Rep. 778). It is held that there can be no such crime as obtaining land under false pretense. People v. Cummings, 114 Cal. 437 (46 Pac. Rep. 284). The expression of an opinion by a vendor as to the improvements others may make which will enhance the value of the property cannot be made the basis of a rescission. Moore v. Barksdale, (25 S. E. Rep. 529).

Va.

Sec. 77. Innocent misrepresentations-Concealment of facts. A party may be charged with a fraud by making representations to another which that other relies upon, and he knows that the other is relying upon them, without knowing whether they are true or not. In such case he is responsible for the damages resulting from the false representations as much as if he knew they were not true when he made them. Cawston v. Sturgis, 29 Ore. 331 (43 Pac. Rep. 656). Citing Kerr, Fraud & M. 54; Hamlin v. Abell, 120 Mo. 188 (25 S. W. Rep. 516); Leavitt v. Sizer, 35 Neb. 85 (52 N. W. Rep. 832); Furnace Co. v. Moffatt, 147 Mass. 403 (18 N. E. Rep. 168); Halcomb v. Noble, 69 Mich. 396 (37 N. W. Rep. 497). Busterud v. Farrington, 36 Minn. 320 (31 N. W. Rep. 360); Burns v. Dockray, 156 Mass. 135 (30 N. E. Rep. 551); Cooper v. Schlessinger, 4 Sup. Ct. Rep. 360; U. S. v. Camp,2 Ida. 215(10 Pac. Rep. 227). Where one sustaining fiduciary relations to a vendor of real estate conceals to his own advantage facts which have come to his. knowledge by reason of such fiduciary relations and thereby procures the sale and conveyance to himself, the same may

be set aside on the ground of fraud. Prince v. Du Puy, 163 Ill. 417 (45 N. E. Rep. 298).

Sec. 78. Relief from fraud-Election of remedies— Sufficiency of proof. Where an agreement has been procured by means of material fraudulent representations by one of the parties, the other has his election of equitable remedies. He may have specific performance, or he may rescind the agreement. Friday v. Parkhurst et ux, 13 Wash. 439 (43 Pac. Rep. 362). Where one takes a conveyance to a certain tract of land, on which the grantor has falsely represented that there is situated a certain site, the remedy of the grantee is a suit to rescind the contract or for damages, and not to have the deed reformed. Norris v. Colorado Turkey Honestone Co., 22 Colo. 162 (43 Pac. Rep. 1024). Citing Sheld. Subr., § 37; Collins v. Swan, 7 Rob. (N. Y.) 623; Willoughby v. Middlesex Co., 8 Metc. (Mass.) 296; Lawrence v. Montgomery, 37 Cal. 183; Davis v. Clark, 33 N. J. Eq., 579; Chambliss v. Miller, 15 La. Ann. 713. Fraud is never presumed, but must be clearly proved in order to entitle the party to relief upon the ground that it has been practiced upon him. Davidson v. Crosby, 49 Neb. 60 (68 N. W. Rep. 338). A rescission of a contract for the purchase of land and the cancellation of conveyances on account of fraud of vendor is an extraordinary power of equity and should not be exercised unless the fraud is clearly established and that the false representations are relied on by the purchaser. Wood v. Staudenmayer et al, 56 Kas. 399 (43 Pac. Rep. 760). In Alabama it is held that fraud must be made out by clear and convincing evidence. Johnson v. Rogers, 112 Ala. 576 (20 So. Rep. 929). Citing, Howle v. Land Co., 95 Ala. 389 (11 So. Rep. 16).

Sec. 79. Statutes in restraint of contracts-Gambling contracts. Liberty to acquire property by contract can be restrained by the general assembly only so far as such restraint is for the common welfare and equal protection and benefit of the people, and such restraining statute must be of such a character that a court may see that it is for such general welfare, protection, and benefit. The judgment of the gen