consequence of which the sub-purchasers refused to complete: and the question was, whether the plaintiff was entitled to recover damages against the original vendor for the loss of the beneficial sub-contracts he had entered into, and in respect of his liability for damages to the subpurchasers. In the course of the argument, Bailey, J., having asked the counsel for the plaintiff, "whether he had any right to [ *142 ] sell before he knew that he had got a good title?" "whether the plaintiff was entitled to recover more, than the damage done by the misrepresentation of the title in the abstract?" and "whether the loss of a good bargain could be considered such damage?" delivered his judgment as follows:-" The case of Hopkins v. Grazebrooke is very different from this. There the defendant had sold property as his own which was not so, and the court was of opinion, that the defendant being in fault by representing himself as the owner of the property, the plaintiff's right was not restrained to nominal damages, and there the principle on which the jury assessed the damages is not stated. Here the defendants undertook to make a good title, and they might honestly think, that they should be able to do so. It turned out that they could not, and consequently the contract was broken, and they were liable to an action. The plaintiff, however, must show that the damages, which he seeks to recover arose from the acts of the defendant, and not from his own haste. Now, looking at the course of the proceedings, it appears that an abstract was delivered in August, and the objections made to the title, as there set forth, were answered in September; but the abstract was not then examined with the deeds, and until that had been done the plaintiff was not justified in acting upon the title shown on the abstract. If it had been examined with the deeds, and found correct, the plaintiff might perhaps have been justified in acting on the faith of having the estate; and if, after that time, he had made a sub[ *143 ] contract, I think he would have been entitled to recover the expenses attending it, if it failed in consequence of any defect in the title of his vendor. And further, if there were mala fides in the original vendor, (but not otherwise) I am not prepared to say, that the purchaser might not recover the profit, which would have arisen from the re-sale. But if premises for which a party has contracted, are by him offered for re-sale too soon, that is at his own peril, and the damage, if any, resulting from such offer, arises from his own premature act, and not from the fault of his vendor. Here I think the plaintiff was premature, and therefore cannot recover."

The opinion intimated here, that if the purchaser had compared the abstract with the original documents, previous to the re-sale, he might have been entitled to recover damages for the loss of the bargain, will, perhaps, on examination, hardly appear tenable. Mr. Justice Littledale observed, with respect to it, that he was not prepared to say, that if such examination had been made, the plaintiff could have recovered, adding, "it seems to me contrary to the policy of the law that a man should offer an estate for sale before he has obtained possession, and a conveyance."(x)

(x) Ibid. 422. The same opinion appears to have been thrown out more decidedly by this judge in the course of the argument, when he observed, "it is contrary to the policy of the law that a man should sell his estate before he has a title and possession." This seems to be the sound view of the question, and flows naturally from the policy which produced the stat

Where a contract is entered into under circumstances of clear mistake or surprise, (y) it will not be enforced; except in cases where the mistake is such as does not materially affect the substance of the agreement, and there has been perfect good faith in the party seeking specific performance of it.

*Thus in a case where the estate was described as freehold,

and consisting of one hundred and eighty-six acres, of which [ *145 ] forty-five were by mistake described to be a compact farm, and the rest a park, it appearing after the sale, that about two acres in or near the centre of the park were not freehold but leasehold, and the lease having expired, were at the time of the sale held only from year to year. The purchaser, after a good deal of treaty for an exchange of these two acres, the success of which was defeated principally through his own conduct, and also after possession forcibly taken by him, at the time fixed by the particulars of sale, and pending the negotiation for an exchange, finally refused to complete, and a bill was filed by the vendor. Lord Thurlow, who seems to have formed no very favourable notion of the conduct of the purchaser, yet thought himself bound by the rule of the court to allow some compensation for these two acres, saying that he should direct the master to look into the contract, and if the master thought as he did, he would not allow more for these two acres, than if they "lay in the middle of a waste at the farthest end of the kingdom."(z)

If one party think that he has purchased bond fide what the other party thought he had not sold, this is a ground to set aside the contract, in order that neither party may be damaged; as it would be *impossible to say that one shall be forced to give that price for part [ *146 ] only, which he intended to give for the whole; or that the other shall be obliged to sell the whole for a consideration which he intended to be the price of part only. (a) Upon this principle, perhaps, may be explained a case(b) which has met with some disapprobation. The sale was of a remainder expectant on an estate tail, both parties under a mistake considering that the remainder had not been barred. In point of fact, a recovery had been suffered before the contract. The court, on the ground

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ute of Maintenance (32 Hen. 8, c. 9,) which enacts "that no one shall sell or purchase any pretended right or title to land, unless the vendor hath received the profits thereof for one whole year before such grant, or hath been in actual possession of the land or of the reversion or remainder, on pain that both vendor and purchaser shall each forfeit the value of such land to the king and the prosecutor." In equity, however, the sub-contract has the same validity as the original contract. "It is extremely clear," observes Lord Eldon, in Wood v. Griffith (1 Swanst. 55,)" that an equitable interest under a contract of purchase may be the subject of sale. A person claiming under that contract, becomes, in equity, a trustee for the persons with whom he afterwards contracts; without entering into any covenants for that purpose, they are obliged to indemnify him from the consequences of all acts which he must execute for their benefit; and a court of equity not only allows, but actually compels him to permit them to use his name in all proceedings for obtaining the benefit of their contract. If I were to suffer this doctrine to be shaken by any reference to the law of champerty or maintenance, I should violate the established habits of this court, which has always given to parties entering into a sub-contract, the benefit which the vendors derived from the primary contract." See Hitchins v. Lander, Coop. 34.

(y) See Stanley v. Robinson, 1 Russ. & M. 527. (z) Calcraft v. Roebuck, 1 Ves. jun. 221.

(b) Hitchcock v. Giddings, 4 Price, 135.

(a) Calverley v. Willams, 1 Ves. jun. 210.

of mistake, set it aside, releasing the purchaser from a bond which he had given for the purchase-money, and compelling the seller to repay the interest which he had received. The Chief Baron, in giving judgment, said: "That if a person sells an estate, having no interest in it at the time, and takes a bond for securing the payment of the purchase-money, that is certainly a fraud, (c) although both parties should be ignorant of it at the time. Suppose I sell an estate innocently, which, at the time, is actually swept away by a flood, without my knowledge *of [ *147 ] the fact, am I to be allowed to receive £5,000 and interest, because the conveyance is executed, and a bond given for that sum as the purchase-money, when, in point of fact, I had not an inch of ground to

sell?"

With re

Both these propositions are probably open to observation. spect to the bond, it is plainly immaterial to the merits of the question, whether the money have been actually paid or only secured. It has been said by a great authority, that "both these cases, when they arise, will deserve great consideration before they are decided in favour of the purchaser." Probably they may, but on the broad principle of natural justice, it seems reasonable, that in all cases of this kind, where a contract is entered into by parties who are equally ignorant of the fact that the vendor has nothing to sell, equity can only be fairly administered by setting aside the contract, and restoring both parties to the situation in which they were, previous to entering into it.

When a party having a right to an estate purchases it from another person, in ignorance of his own title, the vendor will be compelled to refund the purchase-money with interest from the time of filing the bill, although there may not appear to be any fraud. Thus in Bingham v. Bingham, (d) one John Bingham among other things devised an estate tail in certain lands to Daniel his eldest son and heir, limiting the reversion in fee to his own heirs. *Daniel left no issue, but de[ *148 ] vised the estate to the plaintiff in fee. The bill stated, that the latter being ignorant of the law, and persuaded by the defendant and his scrivener and conveyancer, that Daniel had no power to make such devise, and being also subjected to an action of ejectment, purchased the estate of the defendant for £80, and that it was conveyed to him by lease and release. The bill was to have this money repaid with interest. The defendant, by his answer, first of all insisted that Daniel had no power to make such devise; but if he had, he urged that the plaintiff should have "been better advised before he parted with his money, for that all purchases were at the peril of the purchaser." The decree was for the money with interest and costs.

In Twining v. Morrice, (e) an estate had been knocked down to a person at an under-value, under an erroneous impression among the byestanders and bona fide bidders, that he was a puffer; " by an inadvertent act," said Lord Kenyon, "Mr. Blake was in a situation that hurt the

(c) This clearly it cannot be: fraud implies an intention to deceive. There can be no fraud, therefore, where both vendor and vendee are equally ignorant. It is a mistake of the same kind, and differing only in degree from that of the case bona fide of a purchaser thinking he had bought what the vendor as clearly thought he had not sold.

(d) 1 Ves. sen. 126; and see Mr. Belt's Supp. 79. See Morse v. Faulkner, 3 Swanst. 429, n.

(e) 2 Bro. C. C. 326.

sale, and was put into that situation by Mr. Twining; it is, therefore, not such a case as I can decree specific performance. I will not set aside the contract, but will leave the plaintiff to his remedy at law."

The

In Mason v. Armitage, (f) another leading case of the same class, there was a reserved bidding, and that any body who should bid £40 above it, should have the estate, which was communicated to the com[ *149 ] pany *upon a request made by them in consequence of an erroneous notion that the plaintiff was a puffer, the reserved bidding was £9,000; Mason, who, previous to the sale, had given an intimation that he would not purchase, bid up to £8,000, and no farther bidding taking place, in consequence of the notion of his being a puffer, the auctioneer, after a considerable lapse, and pointedly adverting to the person appointed to make the reserved bidding, with the view of inducing him to do so, and saying, "is it with your free will and consent that the estate shall be knocked down at £8,000 to Mr. Mason?" and the person appointed to make the reserved bidding, making no motion whatsoever, under an expectation that he should be called on by name, the estate was accordingly knocked down to Mason. The auctioneer, immediately after the sale, signed a memorandum to the effect that Mason was the highest bidder, and that he had refused to receive the deposit money, and the purchaser's moiety of the auction-duty on the ground that "the owner nor his attorney being present, he did not think proper to receive the same." The vendor pleaded the statute, with an averment-that immediately after the estate being knocked down to Mason, he "revoked the auctioneer's authority," insisting, therefore, that the writing signed by the auctioneer was not a writing signed within the meaning of the statute. material facts were supported by evidence, the result of which appears to have been, that there was no fraud in the transaction. The Lord Chancellor *(Erskine) said, "I admit there is nothing in this contract showing that any thing was fraudulently obtained [ *150 ] by the plaintiff; and if he had been declared the purchaser, and had got into possession so that the defendant had been obliged to come into this court upon the head of fraud, there would not be sufficient ground to deprive the plaintiff of the benefit of his legal contract. But that is not the case. This plaintiff has got all the law can give him, and applies here desiring more; and the question is Whether, under all the circumstances, and upon the authorities and principles, this is a case for a specific performance? In this case I cannot say the plaintiff has acted so as to be an example, though his conduct does not come up to fraud, so that I could have dealt with it as such, if he had obtained possession? The result of the evidence is plain misapprehension and mistake, not an after-thought by the defendant, satisfied at the moment with the sum of £8,000. If, however, the plaintiff thinks he has a case which the statute will not meet, upon which I do not give any opinion, he is not injured by this decision. There is nothing to show that this land is of any peculiar value to him; as, if it was contiguous to his own estate, or purchased with a view to set up a manufacture. Therefore Lord Parker's observation as to stock is applicable; and as the plaintiff declared he did not intend to make this purchase, and he has obtained an advantage through a mistake, a court of equity will not give him any assistance in that."

(f) 13 Ves. 25.

Where the terms of the contract cannot be clearly collected from the agreement, the court will not enforce it. It is not, of course, necessary, that the terms should be contained in it,—if they can be ascertained from any other sources, clearly referred to by the agreement,-or by means specifically appointed for the purpose, that is sufficient. But where these means fail, by leaving the terms in question finally uncertain, the court will not interfere. And therefore where the agreement was for the purchase of an estate, at a price to be fixed by two surveyors, one to be chosen by each party, and the surveyors by their award in writing, after stating the land as 73 acres, valued the property at a certain sum, with a declaration that if there should be any error in the above admeasurement, "an allowance at the rate of £42 for every acre, either less or more than the said admeasurement should be made out of, or in addition to, the said purchase-money, as the case may happen, if the mistake be in the allotment in Horse-Moor-Field, over the brook; and an allowance of the same nature, at the rate of £84 for every acre, if this mistake be in the other part of the estate on the house-side of the brook,"-without stating how much of the land lay on each side of the brook, and consequently there were no *means of determining to what extent [ *152 ] the £84 was to be allowed, or to what extent the £42 only was to be allowed. On the ground of this uncertainty Sir J. Leach considered the award not to be final and certain and allowed a general demurrer to the bill.(g)

(4) Of Hardship.

A bargain may be so hard and unreasonable that in the absence of all circumstances of fraud, the court will not enforce it.(h) In Tilly v. Peers,(i) Lord Chief Baron Eyre thus expresses himself:-" laying out of our consideration all circumstances of fraud, the court upon the mere consideration of its being so hard a bargain will not enforce it." What is such a degree of hardship or unreasonableness as will induce the court to refuse its aid, is matter of discretion for the court, and must depend upon the circumstances of each particular case. It is no objection to the ground of the equity jurisdiction in this respect, that it is vague and uncertain; many other principles on which courts of equity habitually act are equally vague and uncertain. To adopt the language of Lord Eldon with reference to another principle," the rule is clear enough, but the application in each particular case must depend upon the discretion of the judge. It is like the case of fraud; the rule is that this [ *153 ] court will set aside a bargain for fraud; but the court has never ventured to lay down a general proposition what shall constitute fraud.(k)

It is obviously impossible to state as a proposition, what shall be the degree of hardship or unreasonableness, which would induce it to refuse

(g) Hopcraft v. Hickman, 2 Sim. and Stu. 134.

(h) Squire v. Baker, cited 5 Ves. 549, from Lord Harcourt's MS. table.

(i) In the Court of Exchequer, 1791, stated by Sir S. Romilly, from his own note, 10 Ves. 301.

(k) Mortlock v. Buller, 10 Ves. 306.