Where the plaintiff in his bill offered to perform an ambiguous agreement, "according to the true intent and meaning thereof," but uniformly up to the hearing insisted on his own construction, as the only contract between himself and the defendants, not offering to take up the other construction which the defendants were at one time willing to perform, Sir T. Plumer held the case to be perfectly different from one where the plaintiff calls upon the Court to declare the true construction, submitting to perform according to the same; and, his opinion being against the plaintiff's construction, he refused to enforce specific performance against the defendants according to the construction contended for by their answer (p).

Proved by defendant's agent.

May elect to take defective title.

Decree for specific performance, no bar to claims by persons not parties.

Plaintiff not allowed to take decree according to that construction of agreement which he had repudiated.

(l) London and Birmingham Railway Company v. Winter, Cr. & Ph. 57.

(m) Bennett v. Fowler, 2 Beav. 302.

(n) Sug. 420.

(o) See Wood v. White, 4 Myl. & C. p. 470.

(p) Clowes v. Higginson, 1 Ves. & B., see p. 535.

And where the plaintiff by his bill, praying the performance of a written agreement, offers to the defendant the benefit of certain subsequent parol variations, the Court will decree specific performance with the variations, if the defendant elect to take advantage of them; or otherwise of the original agreement (q).

So, where the plaintiff by his bill offers to perform the agreement (r), and the defendant proves a parol variation, the Court will, at his request, without a cross bill, decree specific performance with the variation, and even fix the plaintiff with the costs (s).

The decree should also, (unless the particular circumstances of the case render such a direction unnecessary,) direct the usual accounts to be taken of the rents and profits of the estate, and of interest on the purchase-money, and should order payment of the balance due from the purchaser, and the execution of the conveyance and delivery of the deeds by the vendor (t): and an account may be decreed on the footing of the agreement; although, as in the case of a lease, the subject-matter of the contract has expired by lapse of time before the hearing (u).

Where part of the subject-matter of the contract is abstracted by the vendor, pendente lite, Equity will give relief, even upon supplemental bill after a decree for specific performance; and, in order to assess the amount of damages, will allow the plaintiff to bring an action to ascertain quantum damnificatus, and require the defendant to admit the necessary facts (w).

If, on a bill filed by the vendor, the purchaser be considered unable to pay what is due in respect of purchase-money, interest and costs, the decree may direct that, in default of payment, the Master do proceed to a sale of the premises for the purpose of satisfying the amount so due; and that the deficiency, if any, be paid by the purchaser (x): and the vendor can prove as a specialty creditor (y) in respect of such deficiency (z) in a suit instituted for the administration of the assets of the purchaser; the amount to be found due upon the reference to the Master constituting a judgment debt within the 1 & 2 Vict. c. 110, s. 13(a).

Defendant may take decree with parol variations of written contract offered by purchaser's bill.

Parol variation proved by defendant - no decree for plaintiff; but defendant may take decree without cross bill.

Decree should direct accounts etc.

Decree in vendor's suit, may direct a resale, and payment of the deficiency by purchaser.

(q) Robinson v. Page, 3 Russ. 114.

(r) 1 C. P. Coop. N. R. 353.

(s) Fife v. Clayton, 13 Ves. 546; S.C., 1 C. P. Coop. N. R. 351; Gwynn v. Lethbridge, 14 Ves. 585; see Higginson v. Clowes, 15 Ves. 525.

(t) See Seton on Decrees, 212, 214.

(u) Wilkinson v. Torkington, 2 Y. & C, Ex. 726.

(w) Nelson v. Bridges, 2 Beav. 239, 244.

The usual direction as to the conveyance is that the Master settle it "if the parties differ about the same" (b): these latter words will, however, it seems, be omitted, if an infant is a necessary party to the conveyance (c); or if it will, by Statute, operate to convey the infant's estate although he may not actually be a party (d); but not merely on the ground of his being interested in the estate, as in the case of an infant cestui que trust whose trustees have power to sell and give receipts (e). In one case the decree went on to direct that the Master, in settling the conveyance, should insert therein a particular clause in favour of the plaintiff (f); but it does not appear that the Court will, in general, embarrass the Master with any positive direction, or declaration as to the rights of the parties (g): if the decree omit the usual direction as to the conveyance, the omission may be supplied on petition (h).

As to conveyance being settled by Master.

(x) See Haydon v. Bell, 1 Beav. 337, 343; Rome v. Young, 3 Y. & C. 199; Duke of Beaufort v. Phillips, 1 De G. & S. 321.

(y) s. c.

(z) Rome v. Young, 4 Y. & C. 204.

(a) Duke of Beaufort v. Phillips, 1 De G. &S. 321.

(b) Seton on Decrees, 212.

(c) Calvert v. Godfrey, 2 Beav.267

(d) Cheese v. Cheese, 15 L. J., N. S., Ch. 28.

(e) Richardson v. Ward, 11 Beav. 378.

(f) Blakesley v. Whieldon, 1 Ha. 183.

(g) Williams v. Teale, 6 Ha. 254.

(h) Trevelyan v. Charter, 9 Beav. 140.

If the matter comes before the Master, the practice, as settled by the 76th Order of April, 1828 (i), is, for the party entitled to prepare the conveyance to bring the draft thereof into the Master's office, and give notice of his having so done to the other party; and, at any time within eight days after such notice, such other party may inspect the same without fee, and may take a copy thereof if he thinks fit; and at or before the expiration of the eight days, or such further time as the Master shall in his discretion allow, such other party must either agree to adopt the conveyance, or signify his dissent therefrom, and thereupon he may deliver a statement in writing of the alterations which he proposes in the draft of the conveyance. But if he deliver no such statement in writing, or if the party bringing in the draft refuse to adopt the proposed alterations, the Master proceeds to settle the conveyance, according to the practice of the Court. And in case the Master adopts the proposed alterations, the costs of the proceeding are borne by the party preparing the draft.