This section is from the book "Dart's Treatise On The Law And Practice Relating To Vendors And Purchasers Of Real Estate", by J. Henry Dart . Also available from Amazon: A treatise on the law and practice relating to vendors and purchasers of real estate.
(e) Sandersonx. Cockcrmouth R. Co., (1849) 11 Beav. 497; Richardson v. Eyton, (1852) 2 D. M. & G. 79.
(f) See Oxford v. Provand, (1868) L. R. 2 P. C. 135 ; and of. Rumblev. Heygate, (1870) 18 W. R. 749.
(g) Reynolds v. Waring, (1831) You. 346 ; in this case no reference appears to have been asked for by the plaintiff. See Monro v. Taylor, (1848) 8Ha. 51 ; (1852) 3 M. & G. 713; 21 L. J. Ch. 525.
(h) Clinan v. Cooke, (1802) 1 Sch. & L. 22.
(i) Blore v. Sutton, (1817) 3 Mcr.
237 ; Be Lander and Bagley, 1892, 3Ch. 41, 48; 61 L. J. Ch. 707.
(k) Lord Ormond v. Anderson, (1813) 2 Ball & B. 363.
(I) Wheeler v. D'Esterre, (1814) 2 Dow, 359 ; but see Fitzgerald v. Vicars, (1839) 2 D. & Wal. 298.
(m) Price v. Griffith, (1851) 1 D. M. & G. 80 ; 21 L. J. Ch. 78 ; and see Tatham v. Platt, (1852) 9 Ha. 6G0; Stuart v. L..& N. W. R. Co., (1852) 1 D. M. & G. 721 ; 21 L.J. Ch. 450. But see Haywood v. Cope, (1858) 25 Beav. 140; 27 L. J. Ch. 4C8; Parker v. Taswell, (1858) 2 D. & J. 559 ; 27 L. J. Ch. 812 ; Cooper v. Hood, (1858) 26 Beav. 293 ; 28 L. J. Ch. 212 ; and see sup. p. 238.
And it appears that, as a general rule, the plaintiff cannot rely upon any act by the defendant which can merely tend to his own prejudice, and not affect the plaintiff; e.g., payment of auction duty by the purchaser (p) ; or the execution and registration by the vendor of the conveyance (q). Nor, in the case of a purchase of separate lots under separate parol contracts, does part performance as to one lot set up the agreement as to another lot (r).
Act by defendant, merely to his own prejudice, no part performance ; nor does part performance, as to one lot, affect another lot.
3rd. Where the defendant, by his defence, admits the agreement as alleged in the statement of claim, and does not claim the benefit of the Statute, the Court will order specific performance against him ; or, if he die before judgment, against his representatives (s). And, if he admits a different agreement from that alleged in the statement of claim, the plaintiff may amend and take the benefit of the admission (t); but, in any case, the latter, in relying on the admission, is bound by its terms, and cannot vary them by parol evidence (u). If the defendant, although admitting the agreement, insists upon the Statute, no order can be made against him (x) ;
Admission of agreement by defendant, and Statute not insisted on.
(n) Taylor v. Porting ton, (1855) 7 D. M. & G-. 328; but see Samuda v. Lawford, (1862) 4 Gif. 42 ; and Bear v. Verity, (1869) 38 L. J. Ch. 486.
(o) Denne v. Light, (1857) 8 D. M. &G-. 774; 26 L.J. Ch. 459.
(p) Buckmaster v. Harrop, (1807) 13 Ves. at p. 465 ; the particular case cannot again arise, the duty having been repealed.
(q) Hawkins v. Holmes, (1721) 1 P. W. 770.
(r) Buckmaster v. Harrop, (1807) 13 Ves. at pp. 465, 474.
(s) Gunter v. Halsey, (1739) Amb.
586; A.-G.y. Bay, (1749) 1 Ves. sen. 221; Sug. 14th ed. 156 ; see Parker v. Smith, (1845) 1 Coll. at p. 615 ; Ridgway y. Wharton, (1854) 3 D. M. & C. 677, 689 ; (1857) 6 H. L. C. 238 ; 27 L. J. Ch. 46.
(t) Lindsay v. Lynch, (1804) 2 Sch. & L. at p. 9.
(u) Pym v. Blackburn, (1796) 3 Ves. 34.
(x) Whitchurch v. Bevis, (1789) 2 Br. C. C. 559 ; Blagden v. Bradbear, (1806) 12 Ves. at p. 466; see Moore v. Edwards, (1798) 4 Ves. 23 ; Cooth v. Jackson, (1801) 6 Ves. at p. 37; Row v. Teed, (1808) 15 Ves. at but, if he intends to rely on the Statute, he must plead it (y).
Where a plaintiff alleges a written agreement with a parol variation in favour of the defendant, and offers to perform the agreement with the variation, the Court will, of course, enforce specific performance, although the defendant insists on the Statute (s).
Parol variation in favour of defendant.
The plaintiff, however, as a general rule, if suing on a written contract, is bound by its terms ; and cannot, upon the ground of fraud, surprise or mistake, seek to vary, add to, or explain its contents (a) : except, perhaps, where the fraud consists in a refusal to accede to a promised variation upon the faith of which the plaintiff entered into a written agreement (b) ; or in a fraudulent preparation or alteration of the agreement so as to make it inconsistent with the real intention of the parties, and with the understanding of the plaintiff at the time he executed it; or where, by mistake, an agreement not expressing the real intention of the parties, is entered into, and the mistake is admitted by the defence, or, not being denied by the defence, is proved by unexceptionable evidence (c). But in a case decided in 1886, which has since been followed (d), where the plaintiff alleged that he had executed an agreement to erect six houses by mistake for four houses, and that he had erected the four houses which was the number intended, and claimed damages for breach of the contract on the defendant's part, while the defendant denied the mistake but did not plead the Statute, North, J., admitted parol evidence to prove the mistake, and expressed his opinion that under the Judicature Act, 1873 (e), the Court had jurisdiction to order the agreement to be rectified, and to order specific performance by the defendant of the contract so rectified. And if the defendant wishes to resist specific performance with a variation, he should state precisely the true terms of the agreement, and how the actual agreement differs from that set up by the plaintiff, and should offer to perform the contract alleged by himself to be the true one (/). A subsequent parol variation cannot be enforced by the plaintiff (g), unless there have been such a part performance of the varied agreement as would support a judgment in the case of an original independent agreement (h) ; or, (it is conceived,) unless the defendant by his defence admits the variation and does not insist on the Statute.
Purchaser cannot, in general, enforce specific performance of written contract with parol variation.
P. 375; Jackson v. Oglandcr, (1865) 2 H. & M. 465.
(y) R. S. C. 1883, Ord. XIX. r. 15.
(z) Martin v. Pycroft, (1852) 2 D. M. & G. 785 ; 22 L. J. Oh. 94; Vouillon v. States, (1856) 2 Jur. N. S. 847; 25 L. J. Ch. 875.
(a) Marquis of Townslend v. Stan-groom, (1801) 6 Ves. 328 ; Price v. Dyer, (1810) 17 Ves. 356; Clowes v. Higginson, (1813) 1 Ves. & B. 524; Earl of Darnley v. L. C. & D. R. Co., (1867) L. R. 2 H. L. 43 ; 36 L. J. Ch. 404 ; Snelling v. Thomas, (1874) 17 Eq. 303 ; 43 L. J. Ch. 506.
(b) Pember v. Mathers, (1779) 1 Br. C. C. 52, 54 ; Bug. 14th ed. 174 ; but see Clarke v. Grant, (1807) 14 Ves. 519, 625.
(c) See note to Pym v. Blackburn, (1796) 3 Ves. at p. 38, and cases as to fraud there cited ; Lord Thurlow's judgment in Lord Irnham v. Child, (1781) 1 Br. C. C. at p. 94 ; Lord Eldon's remarks, (1801) 6 Ves. 339; Sir John Leach's argument as counsel for the defendant, in Woollam v. Ream, (1802) 7 Ves. at p. 215 ; 2 Wh. & T. L. C. 7th ed. 513; and the judgment in A.-G. v. Sitwell, (1835) 1 Y. & C. at p. 583 ; 5 L. J. N. S. Ex. Eq. 86. As to admitting evidence in explanation of particular expressions, see sup. p. 1009. Parol evidence even of collateral matters is inadmissible: Rich v. Jackson, (1794) 4 Br. C. C. 514 ; Hare v. Shearwood, (1790) 1 Ves. 241 ; Marquis Townshend v. Stangroom, sup.
Subsequent parol variation can only be enforced, if part performed.