(y) 2 Dart, V. & P. 646, 5th ed.; 730, 6th ed.; 670, 7th ed.

In the cases above mentioned (g), where it was held that the agreement to give compensation was not applicable if the property produced were an entirely different thing from that sold, it will be observed that the difference was in a matter of right, and not of physical content. In all those cases the words of the agreement were large enough to include a mere deficiency of estate or right. The common form of this condition provides for allowing compensation if any error, mis-statement or omission, be discovered in the particulars of sale (h); and it appears that these words are applicable (with the limitations above mentioned) to an error or mis-statement made in the particulars with regard to a matter of right as well as of physical content (i). But where the condition was that compensation should be made for errors of description in the property, it was held that this was only applicable to mistakes in describing the land sold and did not extend to defects of title, as where land sold as leasehold is held by underlease (j). And where the condition was in common form, and some property not belonging to the vendor was inadvertently included in the particulars, but the property as sold was conveyed to the purchaser on completion, and the mistake was not discovered until afterwards, it was held that the condition was not applicable to a defect of title so as to enable the purchaser to recover compensation under it after completion (k). But the real ground of this decision was that, where the whole of that which was sold has been actually conveyed, the entire contract is discharged, and, in the absence of fraud, no compensation is afterwards recoverable for a defect of title, except under covenants for title (l). And there appears to be no doubt that if in that case the mistake had been discovered before completion, compensation would have been payable under the condition (m).

Extent of the condition for compensation.

Flight v. Booth, 1 Bing. N. C. 370.

(a) Dobell v. Hutehinson, 3 A. & E . 355. (b) Ayles v. Cox, 16 Beav. 23.

Madeley v. Booth. 2 De G & Sm. 718. This case was adversely criticised by Jessel, M.R'., .

In Camberwell, &e. Socy. v. Hol-loway, 13 Ch. D. 754, 760; but its authority was recognised in Re Beyfus and Masters' Contract, C. A. 39 Ch. D, 110: above, pp. 101, n. (i), 360.

(d) Evans v. Robins, 8 Jur. N. s. 846: see above, p.

(c) Brooke v. Rowthwaite, 5

Bare, 298; Ridgway v. Gray, 1

Mac. & G. 109; Pry, Sp. Perf.

Sec. 1247. 3rd ed.: of. above, pp.

726

(f) Above, p. 728, and n. (o) of. above, p. 187, and n. (n).

(g) Above, nn. (z). (a), (c), (d).

Debenham v. Sawbridge.

(h) 1 Davidson. Prec. Conv. 611, n., 4th ed.; 1 Key & Elph. Prec. Conv. 255, 8th ed.

(i) Thus, in Re Fawcett and Holmes (above, p. 728), it was held that the clause of compensation was applicable although the fact was that the vendor had no title to the land, which formed the difference between that sold and that offered in fulfilment of the contract. The vendor had formerly owned that land, but had parted with it before the contract, and had inadvertently sold by the old description; and see Cann v. Cann, 3 Sim. 447.

(j) Re Beyfus and Masters' Gon-tract, 39 Ch. D. 110; above, p. 729.

(k) Debenham v. Sawbridge, 1901, 2 Ch. 98.

With respect to the purchaser's right to enforce the contract with compensation, where there is an express agreement to make compensation for errors of description, regard must of course be had to the exact terms of the agreement in each particular case: but the right so given does not in general exclude, or add or subtract anything to or from, the right to specific performance with compensation which the purchaser would have without it (n). His right in this respect under the express contract appears therefore to be generally subject to the like exceptions as the right given to him by the rules of equity under an open contract (o). But it has been held that where there is an express agreement to make compensation, the vendor is bound to allow it, notwithstanding that the purchaser had notice of the misdescription for which it is claimed (p). And it seems that where compensation is provided for by the parties' express contract, the Court will be less inclined to allow the vendor to resist specific performance with compensation on the ground of hardship than where the contract is open as regards compensation for misdescription (q). And as we have seen (r), under the express agreement, the purchaser may claim compensation for an error innocently made and not found out until after completion; which he could not otherwise obtain. Where the contract contained an express agreement to make compensation for any mistake in the description of the property or the vendor's interest therein, and also a proviso enabling the vendor to rescind if the purchaser persisted in any objection or requisition, and the vendor did not show a good title to some minerals included in the sale, it was held that he was entitled to rescind under the proviso on the purchaser's persisting in the objection to the title (s). As we have seen (t), it is now considered that where the contract empowers the vendor to rescind, if any requisition be insisted on which he is unwilling to comply with, he may well exercise this power without giving any reason for so doing, provided only that he act in good faith and not arbitrarily or capriciously; and such a right of rescission appears to be exercisable, if the vendor have innocently made a serious error to his own disadvantage, notwithstanding that he have expressly agreed to make compensation for errors of description and that the error be one which would properly be the subject of compensation (u). But where the vendor has knowingly or recklessly (though without intention to defraud) made some material misrepresentation with respect to the property sold, so that he is unable to convey a property answering to that which he contracted to sell, he is not entitled to exercise such a power of rescission so as to deprive the purchaser of his rights either to rescind the contract for misrepresentation or to enforce its specific performance with compensation (x).