surance Co., 141 Mass. 292 (4 N. E. Rep. 798); Dearborn Foundry Co. v. Augustine, 5 Wash. 67 (31 Pac. Rep. 327); Edison General Electric Co. v. Canadian Pac. Nav. Co., 8 Wash. 370 (36 Pac. Rep. 260; 24 L. R. A. 315); Trust Co. v. Dorsey, 72 Cal. 55 (12 Pac. Rep. 49; 13 Pac. Rep. 148); Bank v. Matthews, 98 U. S. 621; Mill Co. v. Bartlett, 3 N. Dak. 138 (54 N. W. Rep. 544); Wright v. Lee, 2 S. Dak. 596 (51 N. W. Rep. 706); Lumber Co. v. Thomas, 33 W. Va. 566 (11 S. E. Rep. 37; 25 Am. St. Rep. 925); Dillon v. Allen, 46 Ia. 299 (26 Am. Rep. 145); Pennypacker v. Insurance Co., 80 Ia. 56 (45 N. W. Rep. 408; 20 Am. St. Rep. 395; 8 L. R. A. 236); Ruckman v. Bergholz, 37 N. J. L. 437; Corning v. Abbott, 54 N. H. 469; Aiken v. Blaisdell, 41 Vt. 655; State Mut. Fire Ins. Ass'n v. Brinkley Stave & Heading Co., 61 Ark. 1 (31 S. W. Rep. 157; 51 Am. St. Rep. 191; 29 L. R. A. 712); Rahter v. Bank, 92 Pa. St. 393; Insurance Co. v. McMillen, 24 O. St. 67; De Mers v. Daniels, 39 Minn. 158 (39 N. W. Rep. 98); Machine Co. v. Caldwell, 54 Ind. 270; U. S. v. Martin, 94 U. S. 400."

Sec. 120. Construction of contracts. Where the terms of a written agreement are in any respect doubtful or uncertain, or if the contract contains no provisions on a given point, or if it fails to define with certainty the duties of the parties with respect to a particular matter or in a given emergency, and the parties to it have, by their own conduct, placed a construction upon it which is reasonable, such construction will be adopted by the court, upon the principle that it is the duty of the court to give effect to the intention of the parties where it is not wholly at variance with the correct legal interpretation of the terms of the contract. Shouse v. Doane, 39 Fla. 95 (21 So. Rep. 807). An agreement by a vendee to pay "$100 as rent for five years," in case he failed to pay the purchase money notes at maturity, is not an agreement to pay $100 annually, but to pay that sum as rent for five years. Sample- Carter Co. v. Cox, Miss.

(22 So. Rep. 801). The validity of a contract containing personal covenants concerning real estate is determined by the law of the place where the parties are domiciled at the time of its execution. Polson v. Stewart, 167 Mass. 211 (45

५

N. E. Rep. 737; 36 L. R. A. 771). Particular contract for the sale, management and division of profits held to create a vested interest in a party thereto. Matthews v. Kerfoot, 167 Ill. 313 (47 N. E. Rep. 859). For construction of particular contract, see Haynie v. American Trust Inv. Co., Tenn. (39 S. W. Rep. 860).

Sec. 121. Time as the essence of a contract. An agreement that time shall be the essence need not be in any particular form. Such an agreement will be enforced in a court of equity as well as a court of law; and, if the party fails to perform at the time stipulated, the other party may treat the contract as at an end for all purposes, and therefore no court will declare specific performance thereof. But, even after such a default, the one who was not guilty of it may waive his right to treat the contract as at an end. v. Talcott, 7 N. Dak. 183 (73 N. W. Rep. 207). an option to purchase a mining claim, time is of the essence of the contract, it is obligatory upon the would-be purchaser to perform the stipulations about to be performed within the time specified in the contract; and if he fails to do so his option to purchase may be forfeited. Idaho Gold-Min. Co. v. Union Min. & Milling Co., Ida. (47 Pac. Rep. 95). Par

Fargusson
Where, in

ticular contract in which time is held not to be the essence of the contract. Lynch v. Bechtel, 19 Mont. 548 (48 Pac. Rep. 1112.)

Caper

Sec. 122. Breach of contracts-Actions for-Measure of damages. Damages, not specific performance, is the usual relief for violation of contracts when the loss to the injured party is susceptible of compensation in money. ton v. Forrey, 49 La. 872 (21 So. Rep. 600). Where parents, desiring to have their daughter live near them, agree with her husband that if he would move on certain land and improve it, he should have it when they were done with it, he may maintain an action for damages for their breach of the contract by conveying the land to another. Allbright v. Hannah, 103 Ia. 98 (72 N. W. Rep. 421). The measure of damages for the lessor's breach of an option given to his lessee to purchase the premises, is the difference between the price which

was to be paid for the premises and their value. Marske v. Willard, 169 Ill. 276 (48 N. E. Rep. 290). Where a vendor cannot make title, the vendee may, at his election, recover payments of purchase money made, with interest, or damages. for loss of his bargain. Seaver v. Hall, 50 Neb. 878 (70 N. W. Rep. 373). Where one has received a conveyance of land as the consideration of an executory contract which cannot be enforced by reason of the statute of frauds, and he then refuses to perform the contract, he is liable to the other party to the extent of the value of the property so conveyed. Miller v. Roberts, 169 Mass. 134 (47 N. E. Rep. 585). Profits upon the sale of town lots at prices beyond their present market value, and which depended for their realization upon the working up of a "boom" and upon the contingencies and uncertainties of the future, are speculative and conjectural in character, and cannot be allowed as damages for the breach of a contract. Carbondale Inv. Co. v. Burdick, 58 Kan. 517 (50 Pac. Rep. 442). Where the price agreed to be paid for land was $3,050.00, but by a separate contract the vendee gave his note for an additional sum of $4,000.00, it being provided that such note should be cancelled if he should erect buildings upon the premises of a specified value, it is held that upon his failure to erect such buildings, the $4,000.00 will be considered as liquidated damages and not as a penalty. Everett Land Co. v. Maney, 16 Wash. 552 (48 Pac. Rep. 243). Cal. Civ. Code, § 3306, construed and applied-measure of damages for breach of contract to convey land and water rights. Clark v. Yocum, 116 Cal. 515 (48 Pac. Rep. 498).

Sec. 123. Fraud-Representations as to quality or value. A sale of land will not be set aside on account of misrepresentations as to the character of its soil and water supply where the vendee inspected the premises in detail, and had his son, a practical farmer, preparing the soil for seeding for some time before the contract was closed. Brackett v. Carrico, Ky. (38 S. W. Rep. 694). A vendee cannot obtain relief on account of the fraudulent representations of his vendor as to the existence of minerals on the land, where he had equal opportunity with the vendor of knowing the land. Phillips v. Charles, Ky. (41 S. W. Rep. 297). Representa

tions as to the rental value constitute statements of fact and not mere expressions of opinion. Ruberg v. Brown, 50 S. C. 397 (27 S. E. Rep. 873). A contract of sale, procured by the fraudulent representations of the vendor's tenant as to the rental value of the property, may be rescinded where such representations were made by the direction of the vendor. Briggs v. Dunne, 168 Ill. 226 (48 N. E. Rep. 48). An action for fraud in procuring a contract for the sale of land, based upon fraudulent representations of the vendor's agent, will not lie unless it appears that the vendor had knowledge of such representations. Keefe v. Sholl, 181 Pa. St. 90 (37 Atl. Rep. 116). An expression of opinion, estimate, or judgment of the value of property, even if false, does not ordinarily constitute actionable fraud. But a willful misrepresentation by a vendor affirming that the rental from the property exchanged was greater than it was, when relied upon the vendee, is an actionable fraud. So a willful representation by an owner, in the exchange of real estate, that the property exchanged was high and dry, and located in a particular place, which representation was relied upon by the purchaser as true, without inspection of the premises, but which was false, and which operated to the purchaser's injury, is an actionable fraud. Hecht v. Metzler, 14 Utah 408 (48 Pac. Rep. 37; 60 Am. St. Rep. 906). A contract for the sale of a hotel procured by the vendor's fraudulent representations as to its earnings, upon which he knew the vendee relied, may be rescinded. Miller v. Voorheis, 115 Mich. 356 (73 N. W. Rep. 383). A purchaser of real estate has a right to rely upon the representations of his vendor touching the quality and location of the property and the character of the improvements thereon, whenever the facts concerning which such representations are made are not within the knowledge of the vendee. Mullen v. Kinscy, 50 Neb. 466 (70 N. W. Rep. 18). A fraudulent represen. tation as to the amount due on a mortgage on exchanged land is not shown where the false information conveyed was not the result of any fraud or deceit of the part of the party giving it, but arose on account of his inability to accurately calculate the amount due. Whalen v. Tipton, 31 Or. 566 (50 Pac. Rep. 1016).

A written contract under which property is conveyed in

consideration of the assignment of certain contracts will not be set aside on account of fraudulent representations as to the value and character of such contracts made by the assignor, unless the proof of such fraud is clear and cogent, where the party taking the assignment was a man of business experience and had an opportunity to investigate the contracts and by his contract released the assignor from any liability as to them except as stipulated in the contract. Hand v. Waddell, 167 Ill. 402 (47 N. E. Rep. 772). Particular evidence held in sufficient to set aside an exchange of land for mining stock on account of fraudulent representations as to the value of the stock. Crocker v. Manley, 164 Ill. 282 (45 N. E. Rep. 577; 56 Am. St. Rep. 196). Particular evidence held sufficient to authorize the cancellation of a conveyance of land made for worthless mortgage notes secured by a fictitious mortgage on other land, on account of the vendee's fraudulent representations as to their value. Rice v. Silverston, 170 Ill. 342 (48 N. E. Rep. 969). Particular evidence in an action by a lessee for the fraudulent representations of a lessor's agent, held to authorize a submission to the jury of the question as to whether the lessee acted with due care in relying on the representations. Ladner v. Balsley, 103 Ia. 674 (72 N. W. Rep. 787).

Sec. 124. Fraud-Representations as to title or cost of land. Where a vendee was induced to waive his right to an abstract of title by the false and fraudulent representations of his vendor that the land was swanp land and that a deed produced by him from the county constituted a complete chain of title, he is entitled to a rescission upon showing that the land was not swamp land and had been patented to another. Herman v. Hall, 140 Mo. 270 (41 S. W. Rep. 733). Particular facts held to entitle one to recover for fraudulent representations as to title. Baker v. Hallam, 103 Ia. 43 (72 N. W. Rep. 419).

False representations of a vendor as to what the land cost will not authorize a rescission. Sowers v. Parker, 59 Kan. 12 (51 Pac. Rep. 888). Citing, Holbrook v. Connor, 60 Me. 578 (11 Am. Rep. 212); Hemmer v. Cooper, 8 Allen 334; Cooper v. Lovering, 106 Mass. 77; Tucker v. Downing, 76 Ill. 71; Graffenstein v, Epstein, 23 Kan. 443 (33 Am. Rep. 171);