D. Vol. It

Defendant had escaped on the ground of mistake, not contributed to by the plaintiff, were cases where hardship amounting to injustice would have been inflicted on him by holding him to his bargain, and it would be unreasonable to hold him to it. The principle on which the Court in such cases withholds relief from the plaintiff is, that it is against conscience for a man to take advantage of a reasonable and bona fide mistake of another; or, at least, that a Court of Equity will not assist him in doing so; but the mere existence of circimi-stances at the date of the contract which might easily have led to fraud, and the want of any professional adviser on the part of the defendant, have been held insufficient to negative the right to specific performance - no fraud being shown (t) : nor will the Court allow a mistake in law (u), or as to the legal effect of the language of the contract, unless induced by one of the parties (x), to be set up as a ground for resisting specific performance (y). So, where the defendant speculates upon facts, which turn out contrary to his expectation, he cannot rely on his mistaken view; and his own personal mistake as to the use which he might make of the property is unimportant (z). And a purchaser must show that he took reasonable care to ascertain what he was buying before he will be allowed to set up the defence of mistake. Thus, where a purchaser, relying on his knowledge of a property, bought it without looking at a plan which would have shown him his mistake, he was held to his bargain (a).

A sufficient ground for relief;

(t) Lightfoot v. Heron, (1839) 3 Y. & C. 586.

(u) "It is said, ' Ignorantia juris hand excused;' but in that maxim the word 'jus ' is used in the sense of denoting general law, the ordinary-law of the country. But when the word 'jus' is used in the sense of denoting a private right, that niuxim has no application." Per Lord "West-bury, in Cooper v. Phibbs, (1867) L. 11. 2 II. L. 149, 170; and see Earl Bcauchamp v. Winn, (1873) 6 \b., at p. 234.

(x) Powell v. Smith, (1872) 14 Eq. 85; 41 L. J. Ch. 734; Wilding v. Sanderson, 1897, 2 Ch. 534, 550 ; 76 L. J. Ch. 467, 684.

(y) Marshall v. Collett, (1835) 1 Y. & C. 232, 238 ; Mildmay v. Hungerford, (1691) 2 Vern. 243.

(z) Mildmay v. Hungerford, sup.

(c) Tumplin v. James, 15 Ch. D. 215; Goddard v. Jeffreys, (1882) 30 W. R. 269; 51 L. J. Ch. 57 ; and cf. Preston v. Luck, (1884) 27 Ch. D. 497.

Mistake, if relied on, must be clearly proved (b), and parol evidence is admissible for the purpose. The acts of the parties subsequent to the contract may, in some cases, be material as evidence of mistake (c).

And mistake, if relied on, must be clearly proved.

3rdly. Cases where the defendant has obtained the like protection, when he has executed the agreement, knowing its terms and understanding its effect, but relying upon some misrepresentation (d) by the plaintiff, or his agent (e), or upon some stipulation upon his part, which goes to vary the written agreement, but which he refuses to fulfil: e.g., a parol promise to vary the terms of the written agreement has been admitted as a defence to a bill seeking its specific performance (/). So, too, where there was a parol promise that a vendor should have a lease of the property which he had in writing agreed to sell (g) ; and the same decision has been come to in the case of a parol promise by the auctioneer, on behalf of the vendor, to allow compensation for a deficiency in quantity; the right to which was in effect negatived by the particulars (h). So, where the vendor refused to perform his agent's engagement, that improvements should be executed on adjoining property (i). But if the plaintiff offer to perform the agreement with - if the defendant so desire- the parol variation or addition, this is sufficient; and the defendant cannot set up the want of a perfect written contract (k).

3rdly, Misrepresentation, or unfulfilled promise, inducing defendant to enter into agreement knowing its terms and effect.

(b) Clay v. Rufford, (1851) 14 Jur. 803 ; 19 L. J. Ch. 295 ; and see Alvanley v. Einnaird, (1849) 2 M. & G. 1 ; Earl of Damley v. L. C. § D. R. Co., (1867) L. R. 2 H. L. 43 ; 36 L. J. Ch. 404.

(c) Monro v. Taylor, (1848) 8 Ha. at p. 56.

(d) Buxton v. Lister, (1746) 3 Atk.at p. 386; discussed in (1802) 7 Ves. 219; Lovell v. Ricks, (1836) 2 Y. & C. 46 ; 5 L. J. N. S. Ex. Eq. 101 ; sup. p. 99 et seq., and p. 146 et seq.; Harris v. Kemble, (1831) 5 Bli. N. S. 730, 754 ; 7 L. J. (O. S.) Ch. 79.

(e) Mullens v. Miller, (1882) 22 Ch. D. 194 : 52 L. J. Ch. 380.

(/) Clarke v. Grant, (1807) 14 Ves. 519 ; Micklethwait v. Nightingale, (1848) 12 Jur. 638; Hammersley v. Be Bid, (1845) 12 C. & F. 45, 88 ; Williams x. Jones, (1S86) 36 W. R. 573.

(g) Vouillon y. States, (1856) 2 Jur. N. S. 845, 847 ; 25 L. J. Ch. 875.

(h) Winch v. Winchester, (1812) 1 Ves. & B. 375, 378 ; and see Sug. 14th ed. 161, 162, upon Sir Thomas Plumer's remarks in Clowes v. Hig-ginson, (1813) 1 Ves. & B. 526.

(i) Myers v. Watson, (1851) 1 Sim. N. S. 523, 529; Rose v. Watson, (1864) 10 H. L. C. 672; 35 L. J. Ch. 385.

3 y2

The foregoing cases must be distinguished from those in which the purchaser relies for his defence on the non-performance of a parol representation, made by the vendor contemporaneously with the written contract, and having relation to the same subject-matter, but which in fact forms an independent and separate agreement. Non-performance by the plaintiff is, in such cases, no defence to an action by him for specific performance of the written contract (/). Thus, a parol agreement by a vendor on the sale of a flooded mine that he will pump it dry, is no defence to his action for specific performance of the written contract (m). The defendant's right, in such cases, is to counter-claim for specific performance by the plaintiff of his part of the agreement, and for damages for its non-performance.

Contemporaneous but separate parol agreement.

The result, of course, is the same where the collateral and separate contract is not made by parol, but forms part of the written agreement. Thus, where A., in consideration of B.'s building a house, agreed to grant him a lease; and in case of any breach the agreement was to be void, and A. was to have the right to re-enter ; and by the same agreement A. agreed that B. should have the option of purchasing the fee at a stipulated price within a specified time ; it was held that a breach by B. of provisions as to the insurance of the property was no defence to a suit by B. to enforce his right of pre-emption (n).

Collateral contract forming part of written agreement.

Where a stipulation is omitted from the written agreement, upon the supposition that it is illegal (0); or where a party having bargained for the insertion of a particular term, knowingly, and without being fraudulently induced thereto, executes an agreement from which it is omitted (p) ; Equity will hold the omission binding.

Stipulation omitted by consent, no defence.

(k) Martin v. Pyeroft, (1852) 2 D. M. & G. 785 ; 22 L. J. Ch. 94.

(l) Fry, 4th ed. 409.

(m) Phipps v. Child, (1857) 3 Dr. 709 ; Green v. Low, (1856) 22 Beav. 625; cf. Re Adams and Kensington Vestry, (1884) 27 Ch. D. 394 : 54

L. J. Ch. 87.

(n) Croome v. Lediard, (1833) 2 M. & K. 251, 2G0 ; 3 L. J. N. S. Ch. 98; Green v. Low , sup. ; cf. Re Adams and Kensington Vestry, sup.

(o) Lord Irnham v. Child, (1781) 1 Br. C. C. 92 ; see (1801) 6 Ves. 332 : Sug. 14th ed. 173.

4thly. Cases where the written agreement is varied by parol subsequently to its execution. In these cases the variation, to be available as a defence, must be accompanied by such a part-performance as would enable the Court to enforce it if it were an original independent agreement (q) ; subject, nevertheless, to the doctrine of Equity which allows parties, by their acts, to vary the original agreement in respect of matters relating to title and the time for completion (r).

4thly, Subsequent parol variation, part performed.