v. Jackson, (o) where he intimates his opinion to be, "that if the defendant admits the agreement, but insists upon the benefit of the statute, the statute protects him: if he does not say any thing about the statute, then he must be taken to renounce the benefit of it.”(p)

And Sir W. Grant ultimately held that," according to the modern, which he thought to be the correct, doctrine, it is immaterial what admissions are made by a defendant, insisting upon the benefit of the statute; for he throws it upon the plaintiff to show a complete written agreement; and it can no more be thrown upon the defendant to supply defects in the agreement, than to supply the want of an agreement."(q) Where, however, a party admits an agreement, not insisting upon the Statute of Frauds, this it seems will be considered a waiver [ *74 ] of the benefit of the statute, and he will be decreed to perform the agreement.(r)

Where the plaintiff in his bill states an agreement, and the defendant by his answer admits that agreement in a modified form, the court will, it seems, if satisfied that the defendant's is the true statement of the agreement, decree specific performance of it in that form, at the instance of the defendant, without putting him to the expense of filing a cross-bill; but, if the court is not satisfied that the defendant's construction of the agreement is the true one, it cannot decree specific performance of it, without the consent of the plaintiff, and the bill must be dismissed. (s) Where the plaintiff by his bill states one agreement, and the defendant by his answer admits a different agreement, the plaintiff if he amend his bill, stating the agreement as admitted by the defendant, and praying specific performance accordingly, will be entitled to a decree. But, where he insists on the agreement, as he himself states it, and the court is ultimately against him, he cannot at the hearing, under the prayer for general relief, have a decree according to the defendant's construction; nor if he have previously amended his bill praying in the alternative, that if the court should be against his construction, that *he [ *75 ] may have a decree according to the defendant's. All that the court can do is, to dismiss the bill without prejudice to his bringing in a new one.(t)

It does not follow that because a court of equity will not enforce a contract, that it will therefore order it to be delivered up, on a bill for that purpose, and thereby deprive the other party of any remedy he may have at law. Fraud varies in degree, ranging between the grossest imposition and dishonesty on the one hand, and circumstances of mere negligence or mistake on the other; the former may afford very sufficient ground for not only refusing to decree specific performance, but also for having the contract delivered up; the latter, though insufficient to induce the court to order the agreement to be delivered up to be cancelled, may yet be strong enough to induce it to refuse interfering actively in carying it into effect. And accordingly the distinction is now clearly

(o) 6 Ves. 39.

(9) Blagden v. Bradbear, 12 Ves. 471.

(p) And see Rowe v. Teed, 15 Ves. 375.

() Spurrier v. Fitzgerald, 6 Ves. 548, in this case indeed the defendant expressly submitted to perform the agreement, but it does not appear that this execution affects the principle of the decision.

(8) Higginson v. Clowes, 15 Ves. 525, 2nd ed.

(t) Lindsay v. Lynch, 2 Sch. & Lef. 12. Legal v. Miller, 2 Ves. sen. 299.

settled, that there are many cases in which the party has obtained a right to sue upon the contract at law, and in such circumstances that his conscience cannot be affected in equity, so as to deprive him of that remedy; and yet, on the other hand, the court declaring he ought to be at liberty to proceed at law, will not actually interpose to aid him, by specifically performing the contract.(u)

Where an agreement is in parol only, it is manifest *that parol evidence must be admitted to show what were its terms; [ *76 ] but where the agreement is in writing, and signed by the parties, they are bound by what appears on the face of it, and cannot be allowed to introduce parol evidence to add to, or vary its terms: for the admission of parol evidence in such a case, would entirely break in upon the statute, and introduce all the mischief, inconvenience, and uncertainty, which it was designed to prevent.(v) This which is a reason applying peculiarly to agreements, which are the subject of a suit for specific performance between vendor and purchaser, flows directly out of the words of the statute, which says that no one shall be charged by such agreement unless it be in writing, and signed; but there is another reason of a more general description, which arises from the law of evidence, it being a general principle, applicable as well to courts of equity as of law, that parol evidence of the intention of the parties is not admissible to explain, vary, or add to, the terms of a written contract.

[ *77 ]

The exclusion of parol evidence offered to explain, add to, or in some way vary, a written contract relative to land, stands therefore upon two distinct grounds: such evidence is rejected, not simply as being in direct opposition to the Statute of Frauds, but also upon the general rule of evidence, independent of the statute that a written instrument must speak for itself, and can receive no aid from extrinsic evidence of this more loose and dissatisfactory nature. In considering the admissibility of parol evidence to explain, or modify a written agreement, the subject has been involved in much obscurity, and given rise to great difficulties both in the minds of judges and text writers, by not keeping sufficiently distinct the various classes of cases in which this question has arisen. By making a clear distinction between those cases, which come directly within the words of the statute, and those which have depended entirely on the general principles, according to which courts of equity are in the habit of acting in matters of fraud, mistake, or surprise, a great deal of this difficulty will vanish. A party seeking performance of an agreement written and signed, claims the interference of the court, on the ground that his case comes within the statute, and (with the exceptions which have been noticed) it is on this ground alone, that the court assists him. Such a person therefore is not allowed to modify his agreement by parol evidence, because this would be to grant the assistance of the the court not in furtherance of the statute, but in opposition to it. The rule therefore is clearly settled, that a plaintiff in a suit for specific performance, can in no case be admitted to prove that any of the terms of the agreement have been omitted, or varied by fraud, *mistake, or surprise, and that it is different from what the parties intended.

[ *78 ]

(u) Mortlock v. Buller, 10 Ves. 308; Savage v. Taylor, Ca. tem. Talbot, 234. (v) Per Buller, J., in Brodie v. St. Paul, 1 Ves. jun. 326; and Clinan v. Cooke, 1 Sch. & Lef. 36, where all the cases are collected and examined by Lord Redesdale.

A great deal of confusion is to be found in the books as to the question, whether in any case parol evidence could be let in on the part of the plaintiff in such a suit, on the ground of fraud, mistake, or surprise: the true principle clearly is that it cannot,-first, because the statute has said the agreement is to be in writing, and second, because if there have actually been fraud, mistake, or surprise, and the written agreement is really different from what one or both of the parties intended, the proper course is to file a bill in the first instance for the rectification of the agreement; for in such a suit parol evidence would be clearly admissible, on the ground of fraud, or surprise, (w) and then if the plaintiff succeeds in getting his agreement rectified, he could file his bill for specific performance of the agreement so rectified.

On the other hand, it is established with equal clearness, that for the purpose of resisting a suit for specific performance, parol evidence is admissible, and this, because the statute does not require the grounds of resistance to be in writing, and has left the defendant in such a suit in precisely the same situation as he was before its enactment. The statute does not say that a written agreement shall bind, but that an unwritten agreement shall not bind; *leaving it therefore to the de[ *79 ] fendant to make the same defence now, as he might have done before the statute; and, consequently, as before the statute he might have resisted the agreement on parol evidence, that the agreement was not what he meant to have entered into, so he may now say the agreement was not what he meant to have signed.

Fraud is not the only head upon which parol evidence may be received; and if made out satisfactorily, a specific performance may be refused. Upon clear evidence of mistake or surprise, and that the parties did not understand each other, it is introduced not to explain or alter the agreement, but for the purpose of showing circumstances of which would render a specific performance, as in the case of fraud, unjust and therefore not conformable to the principles upon which a court of equity exercises this jurisdiction. There is, however, considerable difficulty in the application of evidence under this head; lest under this idea of introducing evidence of mistake, the rule should be relaxed, by letting it in to explain, alter, contradict, and in effect get rid of a written agreemeet.(x)

In short, in order to reconcile all the authorities, it is only necessary to separate the jurisdiction of the court under the statute from its general equitable jurisdiction. If the party seek relief under the statute he must abide by his written agreement; if he come in under the general jurisdiction of the *court on a case of fraud, mistake or surprise, [ *80 ] every species of evidence is admissible. Where the terms then of an agreement are ascertained in writing, nothing can be added to them: if in the agreement there be any obscurity or contradiction, parol evidence is not admissible to explain such obscurity or contradiction; and the court will refuse to enforce it. If there be any term of the contract omitted, parol evidence cannot be admitted to supply the defect, and on this ground also the court will refuse to interfere. (z)

(w) Marquis of Townshend v. Stangroom, 6 Ves. 338; Beaumont v. Bramley, Turn. 56. (x) Clowes v. Higginson, 1 Ves. & Bea. 527.

(=) See Boid v. M'Curdie, 1 Smith & Batty, 425, where parol evidence was let in to explain the parcels.

Whatever obscurities or imperfections appear on the face of the contract, must be removed by construction, and cannot be explained by external evidence. If, however, there should be any obscurity or ambiguity, not patent on the face of the agreement, but latent, that is to say, which is only discoverable by means of parol evidence, in that case and in that case only, parol evidence is admissible to explain it; and, though the subject and import be clear, so that there is no necessity to resort to evidence for its construction, yet if the defendant can show any circumstances, dehors, independent of the writing, making it inequitable to interpose for the purpose of a specific performance, a court of equity, having satisfactory information upon that subject, will not interpose. The rule admitting evidence in those cases, is intelligible and clear. It is admitted, not to vary an agreement as it is expressed, open to no objection and therefore upon the letter binding, but to show circumstances of fraud; making it unconscientious in the party, *who so obtained it, to insist upon, and unjust in the court to decree, the performance.(y)

[ *81

*81 ] .

As specific performance may be resisted by parol evidence of fraud, mistake or surprise, so also may it be resisted by parol evidence, that the parties had abandoned the agreement. This question has been much embarrassed by some dicta of Lord Hardwicke: thus in Backhouse v. Crosby,(z) though he would not say that a contract in writing could not be waived by parol, he declared that he should expect in such case very clear proof, and observed that the statute stated that all agreements concerning land should be in writing; and an agreement to waive a contract for purchase is as much an agreement concerning lands as the original contract: and in Bell v. Howard (a) he said that an interest in land could not be parted with or waived by naked parol without writing, although such parol waiver might be used to rebut the equity to have the articles specifically performed.

This last passage, indeed, contains the true distinction, and completely answers the objection, that an agreement to waive a contract is as much an agreement concerning land as the original contract, parol evidence of abandonment being let in merely to rebut an equity, and being admitted on the same ground as in the other cases of fraud and mistake which have been already considered. (b)

*That a written agreement may be waived by parol is a point therefore not only clearly recognized by the authori[ *82 ] ties, but stands also upon sound reason: in order, however, that parol waiver and abandonment may be set up as a defence to a bill for a specific

(y) Clowes v. Higginson, 1 Ves. & Bea. 527. (a) 9 Mod. 302.

(2) 2 Eq. Ca. ab. 32, pl. 44.

(b) According to a report of Backhouse v. Crosby, contained in a note to Gordon v, Gordon (3 Swanst. 434,) Lord Hardwicke is made to speak more clearly than in the dicta mentioned in the text. According to this report, his lordship lays it down:-"The defence insisted on is of a tender nature, and to be received by a court of equity with great caution; for even the agreement to depart from a former agreement is as much an agreement concerning lands and tenements as the first; and, therefore, taking it originally and abstracted from the circumstances, ought as much to be in writing, and is equally within the Statute of Frauds : but notwithstanding that, if it clearly appear that a plaintiff in a court of equity, insisting on such an agreement, contained in letters, has by acts done, waived, and thereby drawn in another to purchase, and complete his purchase, in such case it would be a good defence to be insisted on by a second purchaser, showing that he proceeded bona fide, and, consequently, would rebut any equity of the first purchaser."

performance, it must be established with the greatest clearness and precision; and the circumstances of waiver and abandonment must amount to a total dissolution of the contract, placing the parties in the same situation in which they stood before the agreement was entered into.(c) Though variations, verbally agreed on, are not sufficient to prevent the performance of a written contract, vet variations acted upon may be a bar to a specific performance of the original agreement; these acts having been such that the original agreement could no longer be enforced without *injury to one party,-being, in short, such acts of part [ *83 ] performance as would induce the court to enforce a verbal agreement on this ground alone. Thus in the case of Legal v. Miller(d) the original agreement contained a provision that the landlord should repair the house; on examination, it was found not worth repairing, and that it would be better to rebuild it. The house was pulled down by consent of the tenant, who was apprised of the additional expense this would create, and agreed by parol to give an increased rent; afterwards he filed his bill for performance of the original agreement, which was dismissed on the ground that the execution of it under the new circumstances, would be a fraud upon the landlord; he having rébuilt instead of repairing the house, and the tenant having agreed to pay an additional rent, in consideration of the additional expense.

SECTION V.

Of the Equitable Circumstances which will induce the Court to refuse Specific Performance.

Assuming the contract to be in writing, and signed by the party to be charged with its performance pursuant to the provisions of the Statute of Frauds, a court of equity will not specifically perform *the

[ *84 ] contract, unless it be equitable so to do. "The agreement,"

to adopt the language of Lord Hardwicke, "must be certain, fair and just in all its parts; if any of these ingredients be wanting, a court of equity will not decree specific performance of it."(e) Hence if the contract be tainted with fraud,(1) or mistake or surprise, materially affecting its whole substance and character,(2) or uncertainty,(3) or great hardship, (4) or want of mutuality, (5) or if there have been unreasonable delay in the party seeking the assistance of the court,(6) or if the parties be legally incompetent to fulfil the contract,(7) or there be no consideration, or an inadequate consideration, (8) &c. &c.; in all these cases, and on these grounds alone, without reference to any question which may be raised on the title, the court will refuse to interpose its assistance to carry the agreement into effect,-the court requiring to be satisfied, not only that the contract is drawn up conformably with the requisitions of the Statute of Frauds, or comes clearly under the principles of certain classes of cases which have been held to be out of its operation; but also that, regard being had to the situation of the parties, and the circumstances under which the contract was entered into, it is reasonable and just to decree specific performance.

(c) Robinson v. Page, 3 Russ. 119. Price v. Dyer, 17 Ves. 364.

(d) 2 Ves. Sen. 299.

(e) Buxton v. Lister, 3 Atk. 383; and see Martin v. Mitchell, 2 Jac. & Walk. 423.