there is no ambiguity in the terms of the contract, the defendant cannot be allowed to evade the performance of it by the simple statement that he has made a mistake.(w) In a case beford Lord Romilly, M. R., where the defendant alleged that he misunderstood the particulars of sale, his Lordship observed that "if there appear on the particulars no ground for the mistake, if no man with his senses about him could have misapprehended the character of the parcels, then I do not think it is sufficient for the purchaser to swear that he made a mistake or that he did not understand what he was about."(x) And so where, according to the true construction, the contract made the intended lease determinable at the option of either party, but the lessee insisted that he signed it in the belief that it gave the option to him only, the court overruled the defense based on the alleged mistake. (y) § 734. So, again, where the property sold (an inn and shop) was described in the particulars as consisting of Nos. 454 and 455 on the tithe map, containing by admeasurement twenty perches more or less, and in the occupation of Mrs. K. and Mr. S.,-all which statements were correctand correct plans of the property were exhibited at the auction; and the purchaser deposed that he did not see the plans, but had known the property from his boyhood, and bought it in the belief that it included two plots of garden ground which had for many years been occupied with the gardens behind the inn and shop respectively; it was held by Baggallay, L. J. (sitting for Malins, V. C.), and by the court of appeal that the purchaser was not entitled to be released from his bargain. (2) "If," said James, L. J., "a man will not take reasonable care to ascertain what he is buying, he must take the consequences. * * * It is not enough for a purchaser to swear I thought the farm sold contained twelve fields which I knew, and I find it does not include them all,' or, 'I thought it contained 100 acres and it only contains 80.' It would open the door to fraud if such a defense was to be allowed. Perhaps some of the cases on this subject go too far, but for the most part the (w) Per Baggallay, L. J., in Tamplin v. proved by Baggallay, L J., in Tamplin v. James, 15 Ch. D., 217; Morley v. Clavering, James, 15 Ch. D., 218. 29 Beav., 84. (x) Swaisland v. Dearsley, 29 Beav., 430. This statement of the law was cited and ap (y) Powell v. Smith, L. R 14 Eq., 85. cases where a defendant has escaped on the ground of a mistake not contributed to by the plaintiff, have been cases where a hardship amounting to injustice would have been inflicted upon him by holding him to his bargain, and it was unreasonable to hold him to it." (a) § 735. A mistake purely attributable to one party may furnish a defense to specific performance. It does not thence follow that it enables the party so falling into error unconditionally to rescind for such error. So, where the defendants sold to the plaintiffs 100 chests of tea ex Star of the East, and the sale was made by a sample produced by the defendants as from that ship when, in fact, it had nothing to do with that cargo, and the defendants gave notice that they would, on that account, treat the contract as void, the Court of Queen's Bench determined that there was no equity in the defendants simply to rescind the contract. (b)' § 736. We may now proceed to consider the effect of a parol variation set up by the defendant as a ground for refusing the specific performance of a written contract alleged by the plaintiff. It depends on the particular circumstances of each case whether the variation "is to defeat the plaintiff's title to have a specific performance, or whether the court will perform the contract, taking care that the subject matter of this parol agreement or understanding is also carried into effect, so that all parties may have the benefit of what they contracted for. (c) § 737. (1) Where the parol variation set up by the defend (a) 15 Ch. D., 221. (b) Scott v. Littiedale. 8 El. & Bl., 815. Birmingham Railway Co. v. Winter, Cr. & 1 Party defrauded may rescind.] The party who would rescind a fraudulent contract, must return whatever he has received upon it, in order to recover what he has paid upon it; but if the other party has intangled himself by his own fraud, so that he cannot be restored to his original condition, he must bare the loss. Masson v. Bovert, 1 Den., 69; Arnold v. Nichols, 64 N. Y., 117; Eastman v. Plumer, 46 N. H., 464; Hammond v. Pennock, 6 N. Y., 145. Where a party has been defrauded in the purchase or sale of real property, he may rescind the contract, so as to restore the parties to the same situation they were in when the contract was made; or he may affirm the contract, so far as it has been executed, and claim a compensation for the fraud. Bradley v. Bosley, 1 Barb. Ch., 125. Some cases hold that the rescission must be made after the party has had a reasonable opportunity to discover the fraud, and that vigilance and care must be exercised. Ross v. Filterton, 6 Ohio, 287; Lepton v. Firltlock, 13 Alb. Law J., 27. But these cases must be considered in connection with the facts then presented, and do not establish any general rule applicable to all cases. Miller, J., in Baker v. Lener, 67 N. Y., 304. ant shows that after the parties to the contract mutually agreed with one another, an error occurred in the reduction of the contract into writing, and it appears that the written contract varied according to the defendant's contention represents the true contract between the parties, the court will, it seems, enforce specific performance of the contract so varied.' § 738. Thus, where a bill was brought for the specific performance of a contract to grant a lease at a rent of £9 per annum, and the defendant insisted that it ought to have been a term of the contract that the plaintiff should pay all taxes: Lord Hardwicke granted specific performance, and directed that the terms of the verbal contract should be carried into effect by the covenants to be inserted in the lease. (d) Again, where a bill prayed the execution of a contract for the sale of an estate, and the defendant resisted, and proved parol declarations by the auctioneer as to a right of common, and that previously to the sale the particular had been altered as to a certain right of common; the plaintiff proposed that his bill should be dismissed, but Lord Eldon pursued the court which the defendant insisted on, which was specifically performing the contract as contended for by the defendant, thus saving the expense of a cross-bill. (e) § 739. (2) But where the mistake or parol variation set up by the defendant does not show a mere mistake in the reduction of the contract into writing, but that one party understood one thing and the other another, there is no such contract as the court will enforce, and the plaintiff's action is consequently dismissed. (d) Joynes v. Statham, 3 Atk., 388. (e) Fife v. Clayton, 13 Ves., 546. See, also, Gwynn v. Lethbridge, 14 1d., 585. 1 Bradford v. Union Bank of Tennessee, 13 How. (U.S.),57 is an ample authority, upon this branch of equity. It is laid down in that case, that where one party to a contract in writing, brings a bill in equity for a specific performance thereof, and the defendant in his answer, submitting to a specific performance of the real agreement, alleges that the written contract was entered into by mistake, and under a misapprehension of the facts, and establishes this by evidence, he is entitled to a specific performance of the agreement as proved, even against the claim of the plaintiff to have his bill dismissed. See Bradbury v. White, 4 Green, 391. Upon this same principle, in Arnold v. Arnold, 2 Dev. Ch., 467, where a vendor of a chattel received payments by the vendee, with notice that he mistook the price of the sale, the court compelled a conveyance in favor of the vendee, at the price understood by him See Ferussac v. Thorn, 1 Barb. Sup. Ct. R., 44; Wells v. Kruger, 5 Paige, 164. Therefore, where the court thought that the plaintiff and defendant had both been mistaken in a contract which contained certain ambiguous conditions as to the payment for timber, the bill was dismissed. (f) § 740. The same result follows where, from any other circumstance, the enforcement of, the parol variation set up by the defendant would be unfair on either party. Accordingly, where the plaintiff set up a contract which the defendant successfully resisted by parol evidence of a subsequent contract, and the plaintiff insisted on a performance of the contract so set up; Strange, M. R., refused to grant it, on the grounds that it would be a surprise on the defendant to insist, under the prayer for general relief, on the performance of a contract which was not put in issue by the record, and that the plaintiff had really caused the litigation by his refusal to adopt the real contract.(g) Again, where the defendant proved a parol variation, and a great lapse of time had occurred, and compensation in respect of the term in dispute must have been allowed, if the contract had been enforced, for the period whilst the doubt about the terms of the contract had been subsisting, the plaintiff's bill was dismissed, but without costs. (h)1 So in Lindsay v. Lynch, (2) where the plaintiff had refused throughout to adopt the contract which the defendant ad (f) Clowes v. Higginson, 1 V. & B., 524. See the judgment in this case observed on by Lord St. Leonards, Vend., 183, and by Stuart, V. C., in Dear v. Verity, 17 W. R., 568. See, too, Butterworth v. Walker, 13 W. R., 168. (g) Legal v. Miller, 2 Ves. Sen., 299. See the statement of this case by Grant, M. R., in Price v. Dyer, 17 Ves., 364. (h) Garrard v. Grinling, 2 Sw., 244. (i) 2 Sch. & Lef., 1, 10-11. See Jeffery v. Stephens, 6 Jur. (N. S.), 947; 8 W. R., 427; Smith v. Wheatcroft, 9 Ch. D., 223. 1 Where there is doubt whether the parties understood the contract alike, specific performance will be denied. Therefore, where a block of land, which had been subdivided into several distinct lots, was put up and sold at auction, and was struck off to the purchaser at a specific sum, and the vendor, upon a bill filed for a specific performance, insisted and proved that the premises were put up and sold by the lot, and the purchaser, in his answer, insisted that the premises were put up as one entire parcel, and he bid for the premises at a price which was for the entire block; and the evidence was such as to render it doubtful whether the defendant understood that the premises were put up and sold by the lot, the court decided that the complaint was not entitled to a specific performance of the contract. Coles v. Bowne, 10 Paige, 526. See James v. The State Bank, 17 Ala., 69; Story's Eq. Jur., § 134; Lyman v. United States Insurance Company, 17 John., 383, is an authority of the same nature. There, the appellants applied to the respondents for insurance on a brig, as a Portugese vessel; but the policy was made out for an American vessel. It was apparent that there was no fraud in the case, but that the parties had contracted in mutual misunderstanding and error. Platt, J., was, therefore, of the opinion that clearly no relief could be granted. mitted, the bill was dismissed, but without prejudice to another bill. § 741. (3) Where, as is often the case, the court does not decide that the parol variation falls clearly under either of the previous cases, but merely that the defendant contracted under mistake, it puts the plaintiff to his election either to have his action dismissed, or to have the contract executed with the parol variation.(j) § 742. Thus, in Higginson v. Clowes, (k) where the conditions of sale were likely to have misled the defendant, and the defendant contended for a different construction from that of the plaintiff, Grant, M. R., offered the plaintiff either to have his bill dismissed, or to have the contract executed on the defendant's construction. The counsel for the defendant contended that it was not competent to the plaintiff to have his bill dismissed, but that the defendant, without filing a cross-bill, might have a specific performance of the contract. Grant, M. R., however, held that that right existed where the defendant's construction was adopted by the court; but that where, as in the case before him, the court did not decide that the defendant's construction was right, but only that he had contracted under a mistake created by the plaintiff, the bill was merely dismissed. In a subsequent suit on the same contract, where the parties were inverted, Plumer, V. C., holding that there had been a mistake on both sides, refused specific performance on the construction of the defendant in the first suit. § 743. In Ramsbottom v. Gosden, (m) where the written contract confined a reference of expenses to those of conveyance, but the defendant proved by the parol evidence of the attorney that it was the intention of both parties that the plaintiff, who was the purchaser, should also pay the expenses of making out the defendant's title, Grant, M. R., put the plaintiff to his election, either to have the contract performed in the way contained for by the defendant, or to have his bill dismissed. And in a subsequent case, where the defendant proved a parol variation, the same judge (j) See, in addition to the cases cited infra, Browne v. Marquis of Sligo, 10 Ir. Ch. R., 1. (k) 15 Ves., 516. (2) 1 V. & B., 524. (m) 1 V. & B, 165. ¡Query, why was not spe cific performance enforced on the defend. ant's contention, as the error appears to have been merely in the reduction of the contract into writing? |