In the modern case of Mundy v. Jolliffe (a), the defendant, in pursuance of the parol agreement for a lease, had laid down a field in pasture, and executed draining and repairs; acts which are referred to by Sir J. Wigram V. C. (b), as "certainly equivocal": the bill was dismissed by Sir L. Shadwell, V. C, but this decision was reversed by Lord Cottenham, C., on appeal. His Lordship, in giving judgment, indicated a willingness rather to extend than to contract (c) the jurisdiction: "Courts of Equity," observed his Lordship, "exercise their jurisdiction, in decreeing specific performance of verbal agreements, where there has been part performance, for the purpose of preventing the great injustice which would arise from permitting the party to escape from the engagements he has entered into, upon the ground of the Statute of Frauds, after the other party to the contract has, upon the faith of such engagement, expended his money or otherwise acted in execution of the agreement. Under such circumstances, the Court will struggle to prevent such injustice from being effected; and with that object, it has, at the hearing, when the plaintiff has failed to establish the precise terms of the agreement, endeavoured to collect what the terms of it really were" (d).

As to expenditure by tenant.

Mundy v. Jolliffe.

(w) Frame v. Dawson, 14 Ves. 386.

(x) Sug. 141; Hole v. White, 1 Bro. C. C. 409, cited.

(y) Dundas v. Dutens, 1 Ves. jun. 199; Lassence v. Tierney, 1 Mac. & G. 572

(z) Wills v. Stradling, 3 Ves. 378.

(a) 9 Sim. 413; on appeal, 5 Myl. & Cr. 167.

(b) 5 Ha. 381.

(c) See Sug. 150.

In a modern case, where an agreement in writing for a three years' tenancy reserved to the tenant the option of requiring a twenty-one years' lease at the expiration of the prior term, V. C. Wigram appears to have considered, that his verbal notice of intention to take the new lease, accompanied by retention of possession, was binding upon him (e).

In a late case, where a colliery proprietor, under the mistaken notion that he had a power of compulsorily purchasing land for the purpose of a railway, wrote to the landowner, and, referring to such supposed power, offered to purchase the land at a fair valuation, and, no reply being given, the railway was made over the land without further communication with him, but with his full knowledge; and then, after a fruitless negotiation as to the price to be given for the land, the landowner commenced an ejectment upwards of three years after the railway had been finished; the same learned judge on motion, restrained the action, upon the colliery proprietor giving judgment in the action, and paying into Court the utmost valuation of the land (f).

It seems to be clear, upon the modern authorities (g), that the Court, being satisfied of the existence of an agreement, will if possible, ascertain the real terms: Sir E. Sugden, however, remarks, that "the prevailing opinion requires the party seeking the specific performance in such a case to show the distinct terms and nature of the contract" (h); and in a case in Ireland, a reference was refused at the hearing, on the ground that the party setting up the agreement had not produced evidence which, if uncontradicted, would be sufficient to establish its essential terms; the Court holding that a reference should be directed only in cases where the evidence is contradictory (i). But it has been held, that where the bill states, as part of the agreement, a stipulation which would operate against the plaintiff, and which created a liability to which he would, in the absence of agreement, have been liable, - (e. g., an agreement by an intended lessee to pay taxes and make necessary repairs (k),) - or which has been satisfied, and so rendered immaterial, so far as relates to anything remaining to be done (l), the failure to prove such statement is unimportant.

Verbal notice and retention of possession by tenant, held to be a sufficient declaration of option to purchase.

Ejectment by landowner restrained on ground of mere acquiescence in heavy expenditure by party in possession, although no agreement.

Plaintiff, how far bound to show precise terms of contract.

(d) 5 Myl. & Cr. 177.

(e) Beatson v. Nicholson, 6 Jur. 620.

(f) Powell v. Thomas, 6 Ha. 300.

(g) See Allan v. Bower, 3 Bro. C.

C. 14!); Clinan v. Cooke, 1 Sch. &

Lef. 38; Boardman v. Mostyn, 6 Ves. 467, 471; Morphett v. Jones, 1 Sw. 172; Price v. Assheton, 1 Y. & C. Ex. 82; Dale v. Hamilton, 5 Ha. 381; Mundy v. Jolliffe, 5 Myl. & Cr. 167, 177; Sug. 147.

But if the final result of all the evidence which can be procured, is, to leave the material terms of the agreement doubtful, as where it remained uncertain whether the purchase-money did or did not include the timber, the Court, of course, can make no decree (m): the Court, however, will endeavour to put a reasonable interpretation upon vague expressions in an agreement (n).

Immaterial terms of agreement, although stated in bill, need not be proved; the material terms must ultimately be clearly shown.

(h) Sug. 150; see Price v. Asshe-ton, 1 Y. & C, Ex. 441.

(i) Savage v. Carroll, 1 Ball & B. 283, 550, 551; this case, however, was not one between vendor and purchaser; but the validity of the contract was discussed upon the collateral question, whether the heir of a purchaser who had died before completion was entitled to have the purchase-money paid out of the personal estate,

(k) Gregory v. Mighell, 18 Ves, 328.

(l) Mundy v. Jolliffe, 5 Myl. & Cr, 167, 176.

(m) Reynolds v. Waring, You. 346; in this case no reference appeal's to have been asked for by the plaintiff.

(n) Sanderson v. Cockermoulh Railway Company, 11 Beav. 497. I I

And it appears that, as a general rule, the plaintiff cannot rely upon any act by the defendant which can merely tend to his own prejudice, and not affect the plaintiff; e. g., payment of auction-duty by the purchaser (o); or the execution and registration by the vendor of the conveyance (p). Nor, in the case of a purchase of separate lots under separate parol contracts, does part performance as to one lot set up the agreement as to another lot (q).

We may here remark, that sales by auction (r), and in bankruptcy (s), are both within the Statute of Frauds.

3rd. Where the defendant, by his answer, admits the parol agreement as alleged in the bill, and does not claim the benefit of the Statute, Equity will decree specific performance against himself, or, if he die before decree, against his representatives (t); so if he admit a different agreement from that alleged in the bill, the plaintiff may amend his bill and take the benefit of the admission (u); but, in any case, if relying on the admission, he is bound by its terms, and cannot vary them by parol evidence (w): so, if the defendant, although admitting the agreement, insist upon the Statute, no decree can be made against him (x); but he cannot, after having admitted and submitted to perform the agreement, claim the benefit of the Statute by his answer to the amended bill (y): nor can he unite aplea of the statute with any other defence by answer (z): in a late case, it appears to have been held by V. C. K. Bruce, that the defendant, denying the agreement, but omitting to claim the benefit of the statute by his answer, was not entitled to avail himself of it (a).

Act by defendant, merely to his own prejudice, no part performance; nor does part performance, as to one lot, affect another lot.

Sales by auction and in bankruptcy are within the statute.

Admission of agreement by defendant, and statute not insisted on.

(o) Buckmaster v. Harrop, 13 Ves. 465; the particular case cannot again arise, the duty having, as is well known, been repealed.

(p) Hawkins v. Holmes, 1 P. Wms. 770.

(q) Buckmaster v. Harrop, 13 Ves. 456, 474.

(r) S. C.; Blagden v. Bradbear, 12 Ves. 466.

(s) E.v parte Cutis, 3 Dea. 267, Lord Cottenham.

(t) See Att.-Gen. v. Day, 1 Ves. 221; Sug. 150; see Parker v. Smith, 1 Coll. 615.

(u) Lindsay v. Lynch, 2 Sch. & Lef. 9.

(w) Pym v. Blackburn, 3 Ves. 34.

(x) Blagden v. Bradbear, 12 Ves. 466; see Moore v. Edwards, 4 Ves. 23; Cooth v. Jackson, 6 Ves. 37; Rowe v. Teed, 15 Ves. 375.

(y) Spurrier v. Fitzgerald, 6 Ves. 548.

The plaintiff, as a general rule, if suing on a written contract is bound by its terms, and cannot, upon the ground of fraud, surprise, or mistake, seek to vary, add to, or explain its contents (b): except, perhaps, where the fraud consists in a refusal to accede to a promised variation upon the faith of which the plaintiff entered into a written agreement (c); or in a fraudulent preparation or alteration of the agreement so as to make it inconsistent with the real intention of the parties, and with the understanding of the plaintiff at the time he executed it; or where, by mistake, an agreement not expressing the real intention of the parties, is entered into, and the mistake is admitted by the answer, or, not being denied by the answer, is proved by unexceptionable evidence (d). A subsequent parol variation cannot be enforced by the plaintiff (e), unless there has been such a part performance of the varied agreement as would support a decree in the case of an original independent agreement (f); or, (it is conceived) unless the defendant by his answer admit the variation and do not insist on the Statute.

Purchaser cannot, in general, enforce specific performance of a written contract with a parol variation.

A subsequent parol variation can only be enforced if part performed.

(z) Cooth v. Jackson, 6 Ves. 12.

(a) Skinner v. M'Douall, 2 De G. & S. 265.

(b) Marquis of Townshend v. Stangroom, 6 Ves. 328; Clowes v. Higginson, 1 Ves. & B. 524.

(c) Pember v. Mathers, 1 Bro. C. C. 52, 54; Sug. 188; but see Clarke v. Grant, 14 Ves. 519, 525, et quaere.

(d) See note to Pym v. Blackburn, 3 Ves. 38, and cases as to fraud there cited; Lord Thurlow's judgment in Lord Irnham v. Child, 1 Bro. C. C.

94; Lord Eldon's remarks, 6 Ves. 339: Sir John Leach's argument, as counsel for the defendant, in Wool-lam v. Hearn, 7 Ves. 215; and the judgment in Att.-Gen. v. Sitwell, 1 You. & C. Exch. 583; as to admitting evidence in explanation of particular expressions, vide supra, p. 451, et seq.

(e) Robson v. Collins, 7 Ves. 130, 133.

(f) See Van v. Corpe, 3 Myl. & K. 269, 277; and Sug. 170.