We are not here concerned with mutual mistakes of fact and of law affordnig the parties the remedies of rescission or reformation as mistakes sufficient to obtain either rescission or cancellation in which all rights in the contract either at law or equity are cancelled, would of course be sufficient to warrant the refusal of the discretionary remedy of specific performance, and that subject is treated elsewhere.68 Our discussion here is confined to those circumstances where the mistake is insufficient to warrant rescission or cancellation and

64. Brin v. Michalski, 188 Mich. 400.

65. Pomeroy Equity, 2nd Ed., Sec. 1405; Green v. Smith, 1 Atkinson, 572; Columbine v. Cluchester, 2 Phill C. 27; Hallett v. Middleton, 1 Rus. 243; Burk v. Seeley, 46 Mo. 334; Burton v. Shotwell, 13 Bush 271.

66. Pomeroy's Equity Jur., 2nd Ed., Sec. 1405; Denton v. Stewart, 1 Cox, 258; Greenaway v. Adams, 12 Ves. 395, 400; Ferguson v. Wilson, L. R. 2 Ch. 77; Smith v. Kelley, 56 Me. 64; Little v. Thurston, 58

Me. 86; Gupton v. Gupton, 47 Mo. 37; Warren v. Richmond, 53 111. 52.

67. Pomeroy Eq. Jur. 2nd Ed., Sec. 1405; Yovell v. Allen, 18 Mich. 107; Snowman v. Harford, 57 Me. 397; Fullerton v. McCurdy, 4 Kans. 132; Houghwout v. Murphy, 22 N. J. Ed. 531; 21 N. J. Eq. 118; Cole v. Cole, 41 Md. 301; Bryant v Boozs, 55 Ga. 438; Johnson v. Bow-den, 37 Tex. 621; Bird v. Hall, 30 Mich. 347; Gregg v. Hamilton, 12 Kan. 333.

68. See Chapter XII (Reformation Of Land Contracts. Pleading And Practice. Late Michigan Cases) on Reformation of Instruments.

yet which may be a sufficient reason for a court of equity in the exercise of its discretion to deny specific performance.

(a) Mistake Induced by Plaintiff.

It is well settled that where the mistake was induced or caused by the conduct of the plaintiff equity will not decree specific performance against the defendant if the mistake was a material one. It makes no difference even if the intentions of the plaintiff were honest, he must bear the burden of loss which he has assisted in producing.69

(b) Mistake Known to Plaintiff, But Not Induced by Him. In many cases equity will refuse specific performance where the plaintiff knew a mistake was being made by the defendant or the circumstances were such that he might be charged with notice of the facts,70 and even where the mistake is of such a character that ordinarily it would not avail the defendant as a defense, yet if the plaintiff knew of it at the time it was made equity will refuse to specifically perform the contract.71 From what has been said it is obvious that if the mistake has been brought about by the defendant's negligence the courts will as a rule refuse to accept the mistake as a defense.72

(c) Mistake by Defendant Without Negligence.

Where the mistake is due solely to the defendant, but without negligence on his part and without overreaching or advantage taken by the plaintiff, the rule is that equity will afford relief and refuse specific performance only where the mistake relates to a vital portion of the contract, and this means, that it is not a mistake in mere difference in quantity, but a mistake

69. Pomeroy Equity Jur., 2nd Ed 2202; Denny v. Hancock, L. R. 6 Ch. App. 1; Mason v. Armitage, 13 Ves. 25; Goddard v. Jeffreys, 51 L. J. Ch. 57; Bascombe v. Beckwith, L. R. 8 Eq. 100; Western R. R. Co. v. Babcock, 6 Met. 346; Van Praeger v. Everidge (1902) 2 Ch. App. 271, 2 Pomeroy Eq. Jur., 4th Ed. 860; Smith v. Toth, 61 Ind. App. 42, 111 N. E. 442; Louisville Ry. Co. v. Kellner-Dehler Realty Co., 148 Ky. 765, 147 S. W. 424; Allen v. Kirk, 219 Pa. 574, 69 Alt. 50.

70. Pomeroy Eq. Jur. 2nd Ed. 2203.

71. Pomeroy Eq. Jur. 2nd Ed. Sec. 2203.

72. Pomeroy Eq. Jur. 2nd Ed. 2203; Chute v. Quincy, 156 Mass. 189, 30 N. E. 550; Twining v. Neil. 38 N. J. Eq. 470; Boorum v. Tucker. 51 N. J. Eq. 135, 141, 26 Atl. 456; Mansfield v. Sherman, 81 Me. 365, 17 Atl. 300; Webster v. Cecil, 30 Beav. 62.

that goes to the whole contract.73 The rule has been stated by one court in the following language.74 "If he (the defendant), was not misled by any act of the vendor then the court ought not to let him off his bargain on the ground of a mistake made solely by himself, unless the case is one of considerable harshness and hardship."

Sec. 111. Effects Of First Substantial Breach

With land contracts, as with all other classes of contracts, it is a well settled principle of law that he who commits the first substantial breach of a contract cannot maintain an action against the other contracting party for a subsequent failure on his part to perform. It follows, therefore, that before the vendor can maintain any action against the vendee in reliance upon the terms and conditions of the contract, he himself must not have been guilty of any breaches of the contract. In like manner it follows that the vendee cannot maintain any action against the vendor, either for specific performance or otherwise, if the vendee has committed any substantial breaches of the contract.75