(8.) As to grounds of defence negativing plaintiff's right to specific performance except with a variation of the original written agreement; viz., fraud - mistake-misrepresentation - unfulfilled promise - parol variation, etc.

On the other hand, it is quite competent for the defendant to set up a variation from the written contract; and it will depend on the particular circumstances of each case whether that is to defeat the plaintiff's title to have a specific performance, or whether the Court will perform the contract, taking care that the subject-matter of this parol agreement or understanding is also carried into effect; so that all parties may have the benefit of what they contracted for (g).

The admissibility of parol evidence by way of defence to a bill for specific performance of a written agreement, in its literal unvaried terms, may be conveniently considered with reference to four classes of cases: viz.

1st. Cases where the defence is, that by fraud, or mistake, the written agreement is, in terms, different from that which the defendant supposed it to be, when he executed it; this, if proved, will negative the plaintiffs right to specific performance except with the variation (h).

2nd. Cases where the defence is, that by fraud, mistake, or surprise, the defendant executed the written agreement under a reasonable misapprehension as to its effect as between himself and the plaintiff (i): here, also, the Court will refuse to make a decree according to the literal terms or strict construction of the agreement. Thus, where the terms of the agreement have been ambiguous, so that, adopting one construction, they may reasonably be supposed to have an effect which the defendant did not contemplate, the Court has, upon that ground only, refused to enforce it (k); and this, even where the defendant himself was the author of the ambiguity, and the plaintiff certainly supposed himself to be buying all he claimed (l); the principle is, that it is against conscience for a man to take advantage of the plain mistake of another; or, at least, that a Court of Equity "will not assist him in doing so: but the mere existence of circumstances 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 (m).

As to defences which negative plaintiff's right to specific performance except with a variation.

1st. - Fraud or mistake affecting the terms of the agreement.

2ndly. - Fraud, mis(g) Per Lord Cottenham, Cr & Ph. 62.

(h) See Joynes v. Statham, 3 Atk. 388; Woollam v. Hearn, 7 Ves. 211; Sug. 157; Marquis Townshend v. Slangroom, 6 Ves. 328; Ramsbottom. v. Gosden, 1 Ves. & B. 165; Garrard v. Grinling, 2 Sw. 244; Clinan v. Cooke, 1 Sch. & L. 38,39; Hum-phries v. Home, 3 Ha. 277; but mistake, if relied on, must be clearly proved; Clay v. Rufford, 14 Jur. 803, V. C. W.; and see Alvanley v. Kinnaird, 2 Mac. & G. 1. take or surprise, inducing the defendant to enter into agreement misapprehending its effect; but not mere suspicion of fraud.

3rd. 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 (n) by the plaintiff, 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 (o); 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 (p).

3rdly. - Misrepresentation, or unfulfilled promise, inducing defendant to enter into agreement know(i) But his mistake as to the use which he might make of it, is unimportant, see Mildmay v. Hungerford, 2 Vera. 243

(k) Calverley v. Williams, 1 Ves. jun. 210; Higginson v. Clowes, 15 Ves. 516; Clowes v. Higginson, 1 Ves. & B. 524; V. C. Wigram's judgment in Manser v. Back, 6 Ha. 447; and see Alvanley v. Kinnaird, 2 Mac. & G. 8. In Jenkinson v. Pepys, cited 6 Ves. 330, the evidence appears, in fact, to have been offered on behalf of the plaintiff instead of the defendant: see 6 Ha.447

(l) Neap v. Abbott, 1 C. P. Coop. 333; Manser v. Back, ubi supra. As to alteration of an agreement, vide supra, p. 108, and cases cited: see, also, a case of Twentyman v. Barnes, 12 Jur. 743, V. C. K. B., where a plaintiff alleged that the agreement had been altered by chemical agency, and moved that the paper might be subjected to chemical tests; but the Court refused the application.

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

(n) See Buxton v. Lister, 3 Atk.

However, where A. agreed to purchase Black Acre of B., and B. by the same instrument agreed to purchase White Acre of A., and no title could be shown to Black Acre, it was held that, in a suit by A. for specific performance of the agreement for the sale of White Acre, B. could not, as a defence, show that the performance of one agreement was intended to be conditional on the performance of the other; that the intention was to effect an exchange and not independent sales: Lord Brougham, C., in affirming the judgment of Sir J. Leach, observed, that "parol evidence of matter collateral to the agreement might be received, but no evidence of matter dehors was admissible to alter the terms and substance of the contract" (q): upon which Sir E. Sugden observes, that the evidence was inadmissible, "not because it was not to enforce a collateral stipulation, but because it did not prove that by fraud, mistake, or surprise, the agreement did not state the alleged real contract, viz. for an exchange between the parties" (r).

The meaning of the above extract from the judgment of the late Chancellor, is, perhaps, not very obvious; if meant to intimate that the non-fulfilment of a stipulation upon a point collateral to the written agreement, and not inconsistent with such agreement, nor shown to have formed any special inducement to its execution, is a good defence in Equity, the dictum seems of questionable authority; it having been held that the defendant cannot set up an additional parol stipulation, (e. g., as to the time for delivery of possession,) which was agreed upon by the parties at the time of their signing the written contract (s).

Croome v.

Lediard.

386; 7 Ves. 219; supra, Ch. III. p. 39, et seq., and 62 et seq.

(o) Clarke v. Grant, 14 Ves. 519; Micklethwait v. Nightingale, 12 Jur. 638, R.

(p) Winch v. Winchester, 1 Ves. & B. 375, 378; and see Sir E. Sugden's remarks, p. 160, upon Sir Thomas Plunder's remarks in Clowes v. Higginson, 1 Ves. & B 526.

(q) Croome v. Lediard, 2 Myl. & K. 251, see 260; and see Lloyd v. Lloyd, 2 Myl. & Cr. 192.

(r) Sug. 161.

The distinction in principle between such cases would seem to be this; in the one case, the object of the defence is, not to invalidate or vary the written agreement, except so far as such effect may be incidentally produced by proving a parol agreement relating to the same subject-matter; and this is contrary to the Statute: in the other case, the object of the defence is, to directly attack the written agreement itself, by showing that it was executed under mistake, or on the faith of a misrepresentation by the other party, or of a promise made by him, and which, from his refusal to fulfil it, must be taken to have been originally fraudulent: and where the collateral parol agreement is inconsistent with the written contract, the conclusion would seem to be almost inevitable, that the latter was executed by the party favoured by the parol agreement, either under a mistake as to the contents of the written contract, or under a reliance on the good faith of the other party in performing the parol variation: and the fact of the point being provided for by the written contract, would seem to show, that the parties deemed it important; whereas the contrary may be reasonably presumed of a parol stipulation upon a point which is in no way provided for by the written contract.

Parol addition to written agreement, when inadmissible as a defence.

Remarks upon the cases.

(s) Omerod v. Hardman, 5 Ves. 722, 730; and see Sug. 163, et seq., and 187.

But where a stipulation is omitted from the written agreement, upon the supposition that it is illegal, the parties are bound by such omission (t).

4th. Cases where the written agreement is varied by parol subsequently to its execution: in which cases the valuation, 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 (u): 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 (w).