(z) Joynes v. Statham, 3 Atk. 388; Ramsbottom v. Gosdon, 1 V. & B. 165; Winch v. Winchester, ib. 375; London and Birmingham By. Co. v. Winter, Cr. & Ph. 57, 62 ; Manser v. Back, 6 Hare, 443 ; Smith v. Wheatcroft, 9 Ch. D. 223.

(a) Martin v. Pycroft, 2 De Gr. M. & G. 785; cf. Preston v. Luck, 27 Ch. D. 497.

(b) See Walker v. Walker, 2

Atk. 98, 100 ; Joynes v. Statham, 3 Atk. 388, 389; Pember v. Mathers, 1 Bro. C. C. 52, 54; Townshend v. Stangroom, 6 Ves. 328, 339 ; Fry, Sp. Perf. 232 sq., 1st ed. ; 350 sq., 2nd ed.

(c) Above, pp. 703, 704.

(d) 1 Story, Eq. Jur. Sec. 161; Gillespie v. Moon, 2 John. Ch. N. Y. 585 ; Keisselback v. Livingston, 4 John. Ch. N. T. 144.

Olley v. Fisher.

Care must be taken to distinguish the cases in which a defendant to proceedings for specific performance effectually sets up a parol variation of the written agreement from those in which, though pleading the same defence, he proves no more than his own mistake and is really obliged to resist the plaintiff's claim on the ground of some misrepresentation or conduct contributing to his mistake, or of hardship (m). In the former case the defendant is really relying on a mistake common to both parties; he insists that their minds were in truth at one, hut their real intention is not found in the writing. In the latter, his real defence is that the parties were not in truth agreed, though at law he is estopped from saying so, and he seeks to escape the application of the same rule of estoppel in equity also on the plea of misrepresentation or hardship (n). Hence it is that where a parol variation is pleaded as a defence to specific performance, the nature of the relief granted may vary according to the facts established by the evidence, and that it depends on the particular circumstances of each case whether the defence will merely defeat the plaintiff's claim, or whether the Court will order the performance of the contract according to the variation so set up (o). Thus if the alleged parol variation be plainly proved, so that the Court is satisfied that the agreement so varied was the parties' real agreement entered into with their true consent, it will not only reject the plaintiff's claim but will in the same action order, at the defendant's instance, the specific performance of the agreement as so varied (p). But as a rule the Court will not make an order in the same action upon the plaintiff's application for specific performance with the variation set up against him, unless he have by his pleading or (it seems) at the opening of the trial abandoned his claim to enforce the agreement as contained in the writing alone and submitted to perform it with the modification alleged. If the plaintiff maintain his own original contention to the end and fail to establish his claim, and the defendant do not ask for specific performance with the variation, then the Court will simply dismiss the plaintiff's action, but without prejudice, in general, to his suing for such specific performance in another action (q). It seems, however, that, if the defendant do not object, the Court may give the plaintiff the option of having his action dismissed or accepting an order for specific performance with the variation claimed (r). On the other hand, if the defendant do not establish by the extrinsic evidence admitted a true agreement between the parties as to some supplemental term omitted by mistake from the writing, but merely show that he was under a mistake in making the written contract, and that the plaintiff's conduct contributed to this mistake or that it would be a hardship on him (the defendant) to have to perform the written contract, the Court will in general leave the plaintiff to his remedy at law, but may, it seems, give him the option of having his action dismissed or of having an order for specific performance of the contract as claimed to be varied by the defendant (s). And as we have seen (t), where the defendant has by mistake innocently made a misrepresentation to his own detriment in the written contract and fails to prove the plaintiff's real assent to a parol variation, the Court may give the plaintiff the option of rescinding the contract or of completing it according to the defendant's contention. If the defendant fail both to establish his claim, and to show any misleading conduct by the plaintiff or any hardship in his being obliged to perform the contract, the Court will order the specific performance of the written contract as prayed by the plaintiff (u).

Distinction where a parol variation is proved, and where the defendant's own mistake is alone proved.

(e) Specific Performance, pp. 227 sq., 1st ed.; 346 sq., 2nd ed.; Sec. 811 sq., 3rd and 4th ed.

(/) Above, p. 704.

(g) 34 Ch. D. 367.

(A) See above, pp. 9, 10.

(i) Above, p. 681, n. (y). (k) 1900, 1 Ch. 616 ; see below, p. 713.

(l) Above, pp. 700, 703. (m) Above, pp. 693, 694.

Where a parol variation is pleaded in defence, the relief may vary according to the facts proved.

(n) See above, pp. 693, 694. (o) London & Birmingham Ry. Co. v. Winter, Cr. & Ph. 57, 62.

(p) Joynes v. Statham, 3 Atk. 388; Fife v. Clayton, 13 Ves. 546.

(q) Legal v. Miller, 2 Ves. sen. 299; Clowes v. Higginson, 1 V. & B. 524, 534; Lindsay v. Lynch, 2 Sch. & Lef. 1; Smith v. Wheat-croft, 9 Ch. D. 223; Marshall v. Berridge, 19 Ch. D. 233; Preston v. Luck, 27 Ch. D. 497.

(r) See Clarke v. Grant, 14 Ves. 519; Itamsbottom v. Gosdon, 1 V.

& B. 165.

(s) See Higginson v. Clowes, 15 Ves. 516; Gordon v. Hertford, 2 Madd. 106; Fry, Sp. Perf. Sec. 773 sq.; above, pp. 693, 694.

(t) Above, p. 638, and n. (y).

(u) Above, pp. 692, 693, and notes (o) (p).

It follows from the principles explained above (x) that, in order to obtain the rectification of a written instrument, a mistake common to all parties thereto must be proved. As we have seen (y), there must be an antecedent contract; this necessarily involves the true consent of all (z); and there must be a common intention of embodying that contract in or carrying it out by some writing (a). It follows that it is in general a good defence to a claim for rectification to prove that the written instrument carries out the real intention of the defendant and the intention manifested (b) by the plaintiff; in other words, that unilateral mistake, the error of the plaintiff alone, is not sufficient ground for rectification (c). There are certain cases, however, in which an exception to this rule has been admitted. Thus in Garrard v. Frankel(d), the parties signed a memorandum endorsed upon a draft lease and expressing that the plaintiff would let, and the defendant would take, the premises within described at the rent of 230l., and upon the terms of the within lease. It appears that at that time the amount of the rent was left in blank in the draft lease. Afterwards the plaintiff filled up the blank, inserting the figures 130l. by mistake; and the lease was thus engrossed and executed, without the plaintiff's observing his error. On discovering the mistake he sued for rectification. The defendant strenuously contended that the rent of 130l. was the rent really agreed upon. Romilly, M. B,., however, entirely declined to credit the defendant's evidence on this point; he found in effect that at the time of signing the memorandum both parties really intended the rent to be 230l., and that the defendant was aware of the discrepancy between the lease and the agreement. But he treated the memorandum as if it had been signed after the figures 130l. had been inserted in the draft, and held that the case was one where the document which constitutes the whole agreement contains in itself contradictory statements as to the amount of rent. And he further considered that the defendant executed the lease, not fraudulently, but in the innocent belief that the plaintiff was gratuitously granting her (e) a lease at about half the rent which he had asked! In this state of affairs the learned judge cut the knot by deciding that he could neither permit the defendant to derive any advantage from the mistake, nor oblige her to accept a lease different from that which she supposed she was executing. He therefore gave her the option of accepting the lease with the rectification claimed or having it set aside altogether. In Harris v. Pepperell (f), a memorandum was signed for the sale of "two houses in Teddington." The purchaser's solicitor inquired what property was comprised in the sale, and sent a plan showing what he supposed the defendant was buying. In reply, the vendor's solicitor sent a correct plan of what the vendor intended to convey: but the defendant's solicitor had the conveyance engrossed referring to a different plan, which comprised more, and sent the deed for execution without calling attention to the fact that he had not accepted the plaintiff's contention as to the parcels; and the vendor executed the conveyance without discovering the discrepancy. He afterwards sued for rectification of the conveyance. The defendant pleaded that his intention was carried out by the conveyance, and that the mistake of the plaintiff alone was no ground for rectification. Romilly, M. R,., said that, as the Court will not enforce specific performance of a contract which one party has made under a mistake (g), so the Court may interfere where rectification is claimed on the ground of unilateral mistake, if the parties can be placed in statu quo; and on this ground he gave the defendant the option of accepting the rectification claimed or of annulling the contract. At the same time, he intimated pretty clearly that he thought that the defendant had behaved dishonestly. In Bloomer v. Spittle (h), the parties entered into an agreement in writing for sale of certain land, not excepting the mines thereunder, but the mines were excepted from the conveyance. Four years afterwards the purchaser sued for rectification on the ground of common mistake. The vendor by his answer denied the mistake, and alleged that the conveyance carried out the parties' real agreement. The vendor died before he could be cross-examined. Romilly, M. R., expressed the opinion that there had been a common mistake, and that the defence was not honest: but on account of the lapse of time since the execution of the conveyance, he gave the defendant's representatives the option of accepting the rectification claimed or of having the transaction set aside. In Paget v. Marshall (7), the plaintiff wrote to the defendant offering him the first and other upper floors of three houses, which offer the defendant accepted in writing; and a lease was executed accordingly. Afterwards the lessor sued for rectification on the ground that it was not intended that the first floors should be comprised in the lease. Upon the evidence given, Bacon, V.- C, expressed a strong inclination to the opinion that the defendant had clear notice from the negotiations which led up to the plaintiff's letter that he had no intention of letting the first floors. But the learned judge hesitated to pronounce that the defendant's conduct was actually fraudulent, and so he followed Lord Romilly's decisions, declaring that because of the plaintiff's mistake, the defendant should be put to the election of accepting the rectification claimed or having the lease set aside (k).