Rectification granted of instruments embodying executory as well as executed agreements.

(k) Price v. Dyer, 17 Ves. 356, 364; above, p. 700. (l) Above, p. 700, and notes (t) (a) (c). (m) Above, p. 700.

Claim for rectification might be joined with claim for relief under the writing rectified.

It was decided before the commencement of the Judicature Acts, that a man is not entitled to enforce, as plaintiff, the specific performance of a written agreement with a parol variation. This decision was placed on the ground of the general principle above stated (s) that, if one seek to enforce a written contract, he is bound by the words used in the writing in which it is expressed, and extrinsic evidence is not admissible to show that the parties' real intention is different from that expressed in the writing (t). It is true that in the principal cases so deciding no express claim for rectification of the agreement appears to have been made: but as the bill was for the specific performance of a written agreement to grant a lease alleging a mistake in the amount of rent therein stated to be reserved and claiming to have a lease at the rent really agreed upon, it is obvious that rectification of the written agreement was incidentally or at least substantially claimed (u). Besides this, the same rule was applied by Lord St. Leonards in a case where rectification was claimed of a lease, which had been executed in strict accordance with an antecedent written agreement, on the ground of a common mistake in the lease and in the written agreement (x). A distinction was, however, taken with respect to the assertion of a parol variation of a written contract as a defence to proceedings for specific performance of the agreement (y). And it has been clearly established that a defendant to such proceedings may insist that the written contract does not contain the parties' real agreement, but that some stipulation made orally in his favour has by mistake or inadvertence been omitted from the writing, and that it would therefore be inequitable for the plaintiff to enforce against him the extraordinary remedy of specific performance, except on the terms of submitting to the parol variation. And the defendant may adduce extrinsic evidence in support of this contention (z). And the further distinction has been admitted, that if the parol variation be to one party's disadvantage, he may submit to it, even though he claim specific performance as plaintiff; for he is allowed to waive a right given to him by the written agreement, or to claim performance of that agreement as it stands, but with the addition of some extraneous act or promise which he offers to do or fulfil to his own detriment (a). But although the decisions were precise which refused specific performance at the plaintiff's suit of a written contract with a parol variation, there were not wanting expressions of judicial opinion that it was equally inequitable to deny at the defendant's instance the specific performance of a written agreement with the addition of some stipulation to his detriment, which had by a common mistake been left out, as to enforce the same remedy against him without a term so omitted and enuring to his advantage (b). As we have seen(c), the general principles established in equity with respect to the rectification of written instruments appear to lead us to a conclusion exactly opposed to the rule in question. This view prevailed with the great American jurists, Mr. Justice Story and Chancellor Kent (d). And the same opinion was maintained by Sir Edward Fry (e), who also suggested that, since the enactment of the above-mentioned provision of the Judicature Act (f), the rule was no longer applicable. This suggestion was followed by North, J., in Olley v. Fisher (g), who considered that the plaintiff's claims for rectification of an agreement to grant a lease and for specific performance of the agreement as rectified might well be enforced where (as in the case before him) the Statute of Frauds was not pleaded (h). An agreement to sell land of course stands exactly on the same footing (i). More recently, however, the rule against granting specific performance with a parol variation at the plaintiff's suit was followed by Farwell, J., in May v. Platt (k): but in that case neither Olley v. Fisher nor Sir Edward Fry's opinion was cited. It is submitted therefore that the decision in Olley v. Fisher is to be preferred; and further that, if that decision be right, there is no reason for not extending it to a case where the Statute of Frauds is pleaded. For as we have seen (l), it is settled that that statute can afford no defence to an action for rectification.

Rule that specific performance of a written contract with a parol variation cannot be enforced by a plaintiff.

(n) Henkle v. Royal Exchange Assurance Co., 1 Ves. sen. 317; Baker v. Paine, ib. 456; Hodgkimon v. Wyatt, 9 Beav. 566; Stedman v. Collett, 17 Beav. 608.

(o) Olley v. Fisher, 34 Ch. D. 367, 369; see also Fife v. Clayton, 13 Ves. 546.

(p) See the last three cases cited in note (n), above.

(q) Stat. 36 & 37 Vict. c. 66, s. 24 (7).

(r) Fry, Sp. Perf. Sec.517, p. 227, 1st ed.; Sec. 781, p. 346, 2nd ed.

Rich v. Jackson; Woollam v. Hearn.

Davies v. Fitton.

The defendant in specific performance may set up a parol variation.

(s) Above, p. 698.

(t) Rich v. Jackson, 4 Bro. C. C. 514, 6 Ves. 334, n; Woollam v. Hearn, 7 Ves. 211, 218, 219; Davies v. Fitton, 2 Dru. & War. 225, 232; see also Squire v. Campbell, 1 My. and Cr. 459, 480; Manser v. Back, 6 Hare, 443, 447.

(u) See Rich v. Jackson, 4 Bro. C. C. 514; Woollam v. Hearn, 7

Ves. 211.

(x) Davies v. Fitton, 2 Dru. & War. 225, 232.

(y) Above, p. 694 and n. (x). At law the defendant is bound by the writing and cannot allege any parol variation; above, pp. 698, 699 ; Powell v. Edmunds, 12 East, 6; Ford v. Yates, 2 Man. & Gr. 549.