(g) Above, p. 203; Castle v. Wilkinson, L. R. 5 Ch. 534; Fry, Sp. Perf. Sec. 1271, 3rd ed. Distinguish Barker v. Cox, 4 Ch. D. 464, on the ground that there the vendor expressly undertook to procure an assurance from all necessary parties.

(h) Above, pp. 64, 182 - 187.

(i) Fry, Sp. Perf. Sec. 1269, 3rd ed.; and see above, pp. 183, 187,

Where lands are sold under a stipulation that errors of description shall not annul the sale, but no compensation shall he allowed therefor (k), the contract is not broken at law by any small discrepancy between the property sold and that offered in fulfilment of the contract (l); and the vendor may enforce specific performance of the contract without compensation, notwithstanding any such discrepancy. But it is held that, as regards the enforcement of the contract at the vendor's suit, whether in equity specifically or at law, such a stipulation only covers small errors of description, and does not oblige the purchaser to accept a property which is substantially different from that which the vendor purported to sell (m). The better opinion is, however, that the purchaser is precluded by such a stipulation from requiring specific performance of the contract with compensation (n), whether the error of description were small or great (o). If the contract contain this stipulation and also the usual clause enabling the vendor to rescind (p), and the purchaser claim compensation for a misdescription, made innocently but involving a considerable error to the vendor's disadvantage, the vendor will be entitled to exercise the right of rescission so reserved to him (q).

Condition excluding any right to compensation for errors of description.

Where it is a term of the contract that errors of description shall not annul the sale, but compensation shall be made or allowed therefor (r), the contract is enforceable by the vendor with compensation either at law or specifically in equity, even though there be a considerable discrepancy in quantity or estate between the property sold and that offered to be conveyed, provided that this be not something substantially different in kind from what was described in the contract (s). Thus, where property sold as "a messuage situate in T. Street, with the builder's yard, stables and premises, as lately in the occupation of F., and containing 1,372 square yards" really comprised 1,033 only, but otherwise answered the description, it was held that the vendor was entitled to enforce specific performance with compensation (t). And where the stipulation is that compensation for errors of description shall be allowed on either side, the vendor is entitled at law to claim compensation for an error innocently made to his own disadvantage (u). It is thought, however, that as regards the specific performance of the contract, the vendor could only enforce this with compensation in his own favour in the case of small errors and could not oblige the purchaser to take a property misdescribed by the vendor's own fault at a substantial increase on the price agreed upon (x). But it is considered that the purchaser could not in such case insist on specific performance by the vendor without allowing him compensation according to the agreement (y). It is established that, under a contract containing an agreement to give compensation for errors of description, the purchaser is not bound, either at law or in equity, to accept in fulfilment of the contract a substantially different sort of property from what he agreed to buy; the rule being that the agreement in question has no application if there be a misdescription which, "although not proceeding from fraud, is in a material and substantial point, so far affecting the subject-matter of the contract that it may reasonably be supposed that, but for such misdescription, the purchaser might never have entered into the contract at all" (z). Thus, where leaseholds were put up for sale as being subject to certain particular restrictive conditions, and under an agreement providing that compensation should be made for errors of description, and the restrictive covenants contained in the lease were of a more onerous nature than was so represented, it was held that the purchaser was entitled to rescind the contract and recover his deposit (z). The same law was applied where an essential part of property described as held for a term of twenty-three years was held from year to year only (a); where land sold as copyhold turned out to be freehold (b); where lands sold as leasehold were held by underlease (c); and where property described as a freehold ground rent was really a sum payable yearly under a covenant and not rent reserved on a demise of land (d). It appears, too, that where the deficiency is incapable of estimation at a pecuniary value, the condition in question is not applicable (e). And it is not applicable where the misdescription amounts to a wrongful misrepresentation; and this is the case although the error might well be the subject of compensation, if the misrepresentation had been innocent (f).

Condition allowing compensation; the vendor's rights.

And cases cited below, pp. 727. n. (q), 782, mn. (s), (u).

(k) Above, pp. 65, 73.

(l) Nicoll v. Chambers, 11 C. B. 996.

(m) Jacobs v. Revell, 1900,2 Ch. 858; Re Puckett and Smith's Con-tract, 1902, 2 Ch. 258.

(n) Above, p. 725.

(o) See cases cited above, p. 66, n. (b) .

(p) Above, pp. 64, 182-187 (q) Re Terry and White's Con-tract, 32 Ch. D. 14; see below, p. 782.

(r) Above, p. GO.

Re Fawcett and Holmes,

The rule in , Flight v. Booth.

(s) Price v. Macanlay, 2 De G. M. & G. 339; Re Fawcett and Holmes, 42 Ch. D. 1 50; Re Brewer and Hankins, 80 L. T. 127.

(t) Re Fawcett and Holmes, ubi sup.

(u) Leslie v. Tompson, 9 Hare, 268: of. above, p. 724.

(x) See 2 Dart, V. & P. 645 - 647, 5th ed.; 729, 730, 6th ed.; 669, 670, 7th ed.; Price v. North, 2 Y. & C. 620, 626.