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situation. No such thing was for a moment in the contemplation of the parties. All that they at any time meant was to add to or modify the terms of the original agreement." The bill was accordingly dismissed, but without costs.

Sect. III.

Of the Rule in Courts of Equity, respecting the Admissibility of Parol Evidence.

The rules of evidence in courts of equity are the same as in courts of common law; and it is a general principle, established in the former, no less than in the latter, that parol evidence of the intention of the parties is not admissible to vary or add to the terms of a written agreement (i). If the agreement isjccrtain, explained in writing, and signed by the parties, that binds them; if it is not certain, and parol evidence is necessary to prove what the terms were, to admit such evidence would effectually break in upon the statute of frauds, and introduce all the mischief, inconvenience, and uncertainty, which the statute was designed to prevent (2). In the case of Rich v. Jackson (3), therefore, on a bill for specific performance, the Court of Chancery gave the same judgment against the admissibility of parol evidence varying a written contract, as had been previously given by the Court of Common Pleas in an action between the same parties. "The question," said Lord Rosslyn in that case, "is, whether in equity any more than at law such evidence ought to be admitted; whether there is any distinction in a court of equity, where a party comes to enforce a written agreement by obtaining a more formal instrument, and to add, in doing that, a term not expressed in the written agreement, and of such a nature as to bear against the written agreement?

(I) Fell v. Chamberlaine, a Dick. (1) Per Duller f , Brodic v. St. Tiui, 414. Hare v. Shearwood, i Vcs. 5un. I Ves.jun 333. 141. Jordan v. Sawkins, 3 Br. Ch. C. (3) Vid. sup. 438. 388. I Ves.jun. 401. S.C. Jackson T. Cator, $ Ves. jun, 688.

I have looked into all the cases, and cannot find that this court has ever taken upon itself, in executing a written agreement by a specific performance, to add to it by any circumstance that parol evidence could introduce."

There are certain exceptions to this general rule, the principal of which will be briefly considered in the following section. First, it will be inquired, in what cases a defendant may prove by parol evidence a variation in a written agreement, contrary to the intention of the party; secondly, whether a plaintiff" may produce such evidence. Some cases will then be mentioned, in which extrinsic evidence has been admitted, to rectify mistakes in deeds, and for the purpose of raising trusts in wills.

1. When a court of equity is called upon to exercise its peculiar jurisdiction by decreeing a specific performance, the party to be charged is admitted to shew, that under the circumstances the plaintiff is not entitled to have the agreement specifically performed (1). The admission of such evidence as matter of defence is very frequent; it is used to rebut an equity. The defendant says, " the agreement which you seek, is not the agreement which I meant to enter into;" and then he is let in to prove fraud or mistake (2). For the Court will not grant a decree for specific performance, unless it is satisfied, that under all the circumstances it is equitable to give more relief, than the plaintiff is entitled to at law.

The statute of frauds has not altered the situation of a defendant, against whom a specific performance is prayed; and he may give the same evidence now, which he might have given before (3). For the words of the statute are, that " no person shall be charged upon any contract or sale of lands, &c., unless the agreement or some mcmoran

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dum or note thereof shall be in writing, and signed by the party to be charged therewith or some other person thereunto by him lawfully authorized." No person, then, can be charged with the execution of ;in agreement, who has not either by himself or his agent signed a written agreement; but the statute does not say, that, if a written agreement is signed, the same exception to it may not be taken as before the statute. Now before the statute, if a bill had been brought for specific performance, and it had appeared that the agreement had been prqiared contrary to the intent of the defendant, he might have said, "that is not the agreement meant to have been signed." Such a case is left as it was by the statute; the statute does not say that a written agreement shall bind, but that an unwritten agreement shall not bind, (1)

The general principle, to be deduced from the various authorities on this subject (2), appears to be, that a defendant in answer to a bill for a specific performance may suggest, and prove by parol evidence, that by reason of fraud, surprise, or mistake, the written instrument does not correctly and truly express the agreement, but that there is an omission or insertion of a term, or some material variation, contrary to the intention and understanding of the parties.

The defendant may be admitted also to prove by parol evidence, that, after signing the written agreement, the parties made a verbal agreement varying the former; provided those variations have been so acted upon, that the original agreement can no longer be enforced without a fraud upon the defendant. Thus, in a case where there was a written agreement for the lease of a

(1) See Lord Redesdalc's judgment 6Ves. jun. 328. Woolhm v. Hearn,

in the case of Clinan v. Cooke, 1 Schoal. 7 Ves. jun. 111. Clarke v. Grant,

fc Lef 39. 14 Ves.jun.524. Ramsbottom v. Gos.

(1) Joynesv. Stathjm, 3 Alk. 388. den, 1 Ves. & Beam. 165. Winch v.

Marquis of Townsend v. Sungroom, Winchester, 1 Ves. A Beam. 375.

house. house, at the annual lent of 32/., and that the owner of the house should put it in repair; it was afterwards discovered, that the house was not worth repairing, and without any alteration of the agreement the house was in consequence pulled down with the consent of the tenant, who was apprised of the great expence, which the landlord must necessarily have incurred in making the repairs; the tenant then made a verbal agreement to add 8/. per annum to the 32/., provided the house should be rebuilt; and on a bill brought by the tenant for a specific performance of the lease, on the foot of the written agreement to pay 32/. rent, the defendant in his answer set up the parol agreement (i). Here the original agreement was unexceptionable, but the execution of it under the new circumstances would have been a fraud upon the landlord; the landlord having rebuilt instead of repairing the house, and the tenant having agreed to pay an additional rent in consideration of the additional expence. But variations, verbally agreed upon, are not sufficient to prevent the execution of a written agreement, where the situation of the parties in all other respects remains unaltered. (2)

2. Whethcr a plaintiff' in equity, on a bill for the specific performance of a written agreement, can in any case be admitted to prove, that some terms of the agreement have been omitted or varied by fraud, mistake, or surprize, and that the agreement is different from what the parties intended; and whether, on such a case being distinctly proved, the plaintiff can obtain a decree for a specific performance of the agreement in its rectified form, is a much larger and more difficult question, and one on which it is not easy to reconcile all the authorities. In the cases of Lord Irnhamv. Child^), and Lord Portmorc v. Morris(4),

(ij Legal v. Miller, 2 Vcs. 299., (2) 17 Ves.jun. 364., and tec Omccited 6 Ves. jun. 336.11.; and i7Ves. rod v. Hardman, 5 Ve<.jun. 722. jun.364. (3) 1 Brn. Ch. C. 91.

(4) 2Bro. Ch. C. 219.

G g 2 where where the plaintiff filed a bill to redeem an annuity, and the question was, whether parol evidence could be admitted to shew, that the parties intended the annuity to be redeemable, but did not insert in the deed a clause to that effect, supposing it would make the transaction usurious*; Lord Thurlow in the one case, and Lord Kenyon in the other, thought it clear, that if the clause had been omitted by fraud, or if the agreement had been * varied by fraud, the evidence would be admissible. Lord Thurlow, in the former case, after saying, that the rule of evidence is not subverted, if there is clear proof of fraud, added, "then as to mistake or accident, suppose it were a clear thing, that one agreement was intended, and that by accident it was extended further; but there is no such case in the books; if admitted to be a mistake, the Court would not overturn the rule of equity by varying the deed, but it would be an equity dehors the deed. Then it should be proved as much to the satisfaction of the Court, as if it were admitted." In another part of his judgment Lord Thurlow says, "It is necessary to see the statement of the bill; if it states, that it was agreed, that the clause for redemption should not be inserted, they cannot read the evidence; but if it is stated, that it was intended to insert the clause, but that it was suppressed by fraud, I cannot refuse to hear evidence read to establish the rule of equity. They are at liberty to read evidence to prove such fraud, as will make a ground in equity."

* Lord Eldon has observed (a) on these cases, that they procerd on an indisputably clear principle, that the parties did not mean to insert in the agreement a piovision for redemption, because they agreed that it would be usurious; and they desired the Court to do not what they intended, for the insertion of that protision was directly contrary to that intention; but they desired to be put in the same situatiun as if they had been better informed, and consequently had a contrary intention. The answer is, they admit it was not to be in the deed; and why was the Court to insert it, where two risks hid occurred to the parties ? the danger of usury, and the danger of trusting to the honour of the party.

(a) 6Ves.jun. 332.

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