On the other hand, it is quite competent for the defendant to set up a variation from the written contract; and it will depend on the particular circumstances of each case whether that is to defeat the plaintiff's title to have specific performance, or whether the Court will perform the contract, taking care that the subject-matter of this parol agreement is also carried into effect; so that all parties may have the benefit of what they contracted for (i).

Section 5

Variation of the written agreement, the defence set up.

(d) Olley v. Fisher, (1886) 34 Ch. D. 367 ; 56 L. J. Ch. 208, followed by Kay, J., in Shrewsbury, §c. Cab Co. v. Shaw, (1890) 89 L. T. Journ. 274. But see May v. Platt, 1900, 1 Ch. pp. 621, 622 ; 69 L. J. Ch. 357.

(e) S. 24 (7).

(f) Smith v. Wheatcroft, (1878) 9 Ch. D. 223, 229 ; 47 L. J. Ch. 745.

(g) Robson v. Collins, (1802) 7 Ves. 130, 133 ; Nurse v. Lord Seymour, (1851) 13 Beav. 254 ; Vezey v. Rash-leiyh, 1904, 1 Ch. 634 ; 73 L. J. Ch. 422.

(h) See Jordan v. Satckins, (1791) 1 Ves. 402; Price v. Dyer, (1810) 17 Ves. 356 ; Van v. Corpe, (1834) 3 M. & K. 269, 277 ; and Sug. 14th ed. 164.

The admissibility of parol evidence by way of defence to a claim for specific performance of a written agreement, in its literal unvaried terms, may be conveniently considered with reference to four classes of cases: viz. :

Admissibility of parol evidence.

1st. Cases where the defence is, that by fraud, or mistake, the written agreement is, in terms, different from that which the defendant supposed it to be, when he executed it; this, if proved, will negative the plaintiff's right to specific performance except with the variation (k).

1st. Fraud or mistake affecting terms of agreement.

2ndly. Cases where the defence is, that by fraud, mistake, or surprise, the defendant executed the written agreement under a reasonable misapprehension as to its effect as between himself and the plaintiff ; here, also, the Court will refuse to make a decree according to the literal terms, or strict construction of the agreement.

2ndly. Fraud, mistake, or surprise, inducing defendant to enter into agreement misapprehending its effect;

Thus, where the terms of the agreement are ambiguous, so that, adopting one construction, they may reasonably be supposed to have an effect which the defendant did not contemplate, the Court has, upon that ground only, refused to enforce it (/) ; and this, even where the defendant hinias where the terms of the agreement are ambiguous ;

(i) Per Lord Cottenham, in London & Birmingham R. v. Winter, (1810) Cr. & Ph. 62.

(k) See Joynes v. Statham, (1716) 3 Atk. 388 ; Woollam v. Hearn, (1802) 7 Ves. 211 ; 2 Wh. & T. L. C. 7th ed. 613; Sug. 11th ed. 157: Marquis Townshend v. Stangroom, (1801)6 Ves. 328 ; Ramsbottom v. Gosden, (1812) 1 Ves. & B. 165; Garrard v. Coiling, (1818) 2 Sw. 244 ; Lord Gordon v. Marquis of Hertford, (1817) 2 Mad. 106 ; Clinan v. Cooke, (1802) 1 Sch. & L. at pp. 38, 39; Humphries v. Home, (1844) 3 Ha. 276;

Wood v. Scarth, (1855) 2 K. & J. 33 ; Wright v. Goff, (1856) 2 Jur. N. S. 481 ; and see Vouillon v. States, ib. 845 ; 25 L. J. Ch. 875.

(I) Calverley v. Williams, (1790) 1 Ves. 210; Higginsonv. Clowes, (1808) 15 Ves. 516; Clowes v. Higginson, (1813) 1 Ves. & B. 524; V.-C. Wigram's judgment in Manser v. Back, (1848) 6 Ha. 447 ; and see Alvanhy v. Kinnaird, (1849) 2 M. & G. 8; Wood v. Scarth, (1855) 2 K. & J. 33. In Jenkinson v. Pepgs, cited (1801) 6 Ves. 330, the evidence appears, in self was the author of the ambiguity, and the plaintiff certainly supposed himself to be buying all he claimed (m). So, where the defendant, by his answer, alleged that he made his offer, and signed a contract for the purchase of an undivided moiety of an estate, under the erroneous belief that the rental stated in the particulars was that of the moiety, and not of the whole estate, and the wording of the particulars justified a doubt as to its meaning, the Court refused to enforce specific performance (n) : so, where the defendant assumed that his contract for the purchase of a dwelling-house included an adjoining yard, and the contract was so framed as to leave it doubtful whether it was included or not (o). So, where the defendant was misled by the sale plan as to the boundaries of the purchased property (p). So, where the defendant made a mistake in calculating the purchase-money which he was willing to take, and offered to sell the estate for 1,250/. instead of 2,250/. as he had intended (q). So, where the written contract which the plaintiff sought to enforce was silent as to any restrictive conditions, extrinsic evidence was admitted to prove a prior restricted parol agreement, and specific performance of the written contract was refused (r).

In one case (.s), James, L. J., observed that some of the cases had gone too far, but that most of those in which a but mere suspicion of fraud is not fact, to have been offered on behalf of the plaintiff instead of the defendant: see (1808) 15 Ves. 522, and (1848) 6 Ha. 447.

(m) Neap v. Abbott, (1838) C. P. Coop. 333 ; Manser v. Bach, sup.; Twentyman v. Barnes, (1848) 12 Jur. 743, -where a plaintiff alleged that the agreement had been altered by chemical agency, and moved that the paper might be subjected to chemical tests ; but the Court refused the application.

(n) Swaisland v. Dearsley, (1860) 29 Beav. 430 ; 30 L. J. Ch. 652.

(o) Moxeyv.Bigwood, (1862) 8 Jur.

N. S. 803; and see 8. C, (1864) 10 ib. 597.

(p) Benny v. Hancock, (1870) 6 Ch. 1; Brewer v. Brown, (1884) 28 Ch. D. 309 ; 54 L. J. Ch. 605.

(q) Webster v. Cecil, (1861) 30 Beav. 62; in this case the mistake was clearly proved by a written calculation made before the sale ; see also Aspinalls to Powell, (1889) 60 L. T. 595.

(r) Barnard v. Cave, (1858) 26 Beav. 253.

(s) Tamplin v. James, (1880) 15 Ch. D. 215, 221.