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This doctrine respecting the propriety of receiving parol evidence on the part of the plaintiff under circumstances of clear fraud, appears to have been admitted in other modern cases (1). The difficulty has generally been in carrying the principle into practice, and in ascertaining what constitutes a fraud. In the case of Pember v. Mathers (2), Lord Thurlow allowed the plaintiff, on a bill for specific performance, to give parol evidence of a promise by the defendant under the following circumstances. The bill was filed by the original lessees of a leasehold estate, against an assignee of the lease, on his parol undertaking to indemnify the plaintiff against all rents and covenants to be paid or kept on the part of the lessee, and to execute a bond for such an indemnity. The assignment had been made by a sale by auction; and the conditions of sale did not stipulate the indemnity; but it rested only on parol evidence. This evidence was objected to as inadmissible, on the ground, that, where the parties have entered into a written agreement, no parol evidence could be admitted to increase or diminish such agreement. Lord Thurlow said, "the rule is right; but where the objection (to the omission of an article) was formally made, and promised by the other party to be rectified, it comes among the string of cases, where it is considered as a fraud upon the rule of law." As some doubt arose, whether the evidence was sufficient to establish the parol undertaking to indemnify, entered into by the defendants, Lord Thurlow directed an issue to be tried, whether such promise was made on the day of the execution of the assignment; and, this being found in the affirmative, the plaintiff had a decree for a specific performance. In speaking, however, of the case of Pember v. Mathers, the present Master of the Rolls appears to have entertained some doubt, how far it would be proper to go the whole length of the doctrine there laid down, or

(1) See Marquis of Townsend v. Stangroom, 6 Ves. jun. 338.

(2) 1 Bro. Ch. C. 51.

to decree a specific performance, on the ground of such a promise. (1)

It does not appear from any reported case, that the plaintiff has been allowed to give parol evidence, varying a written agreement, on the ground of mistake or surprise. In the case of Joynes v. Statham (2), indeed, where, on a bill for the specific performance of an agreement for the lease of a house at a certain rent, the defendant was admitted to prove by parol evidence, that the agreement was for rent clear of all taxes, Lord Chancellor Hardwicke, after observing, that "the defendant had a right to insist, either on account of an omission, mistake, or fraud, that the plaintiff should not have a specific performance," is reported to have added, "Suppose the defendant had been the plaintiff, and had brought a bill for a specific performance of the agreement, I do not see but that he might have been allowed the benefit of disclosing this to the Court; because it was an agreement executory only, and as in leases there are always covenants relating to taxes, the master will inquire, what the agreement was as to taxes; and therefore the proof offered here is not a variation of the agreement, but is explanatory only of what those taxes were." Lord Redesdale in a very late case (3), commenting on this passage, observed, "that the words do not appear to import any thing positive;" and with respect to the case, which, Lord Hardwicke conceived, might possibly be made, where even a plaintiff might be admitted to shew an omission in a written instrument as well on the ground of mistake as of fraud *, added, that he could find no decision, except the contrary way.

(1) See 14 Ves. jun. 524. (2) 3 Atk. 388.

In

(3) Clinan v. Cooke, 1 Schoal & Lef. 39. See also 4 Bro. Ch. C. 518. 6 Ves. jun. 335. n.; and 7 Ves. jun. 220.

The words of Lord Redesdale, in the report, are as follow: "There seems to have been something of a floating idea in the mind of Lord Hardwicke, that

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In the case of the Marquis of Townshend v. Stangroom (1), Lord Eldon, after observing "that it was competent to a court of equity, (for the purpose of enabling it to determine, whether it will specifically execute an agreement,) to receive evidence of the circumstances, under which it was obtained," added, " and I will not say, that there are no cases, in which it may be received to enable the court to rectify a written agreement upon surprise or mistake, as well as fraud; proper irrefragable evidence, as clearly satisfactory, that there has been mistake or surprise, as, in the other case, that there has been fraud. I agree that those producing evidence of mistake or surprise, either to rectify an agreement, or calling upon the court to refuse a specific performance, undertake a case of great difficulty; but it does not follow, that it is therefore incompetent to prove the actual existence of it by evidence." A specific performance was in this case sought, with a variation attempted to be introduced by parol. And Lord Eldon stated, "he would not say, that, upon the evidence without the answer, he should not have had so much doubt, whether he ought not to rectify the agreement, as to take more time to consider, whether the bill should be dismissed; but the evidence must be taken, due regard being had to the answer (2); and the Court is not to decide upon the allegation as to the probability, against the answer.” The bill was accordingly dismissed, but without costs.

The later case of Woollam v. Hearn (3), determined by the Master of the Rolls on great consideration, sets the doctrine of the courts of equity on this subject in a very

(1) 6 Ves. jun. 338.

(2) And see I Bro. Ch. C. 92. 3 Bro. Ch. C. 168. 1 Ves. jun. 241.

(3) 7 Ves. jun. 211,

by possibility a case might be made, in which even a plaintiff might be admitted to shew an omission, either by mistake or fraud. However I can find no decision except the contrary way."

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distinct and clear point of view. The plaintiff there filed a bill for the specific performance of an agreement for a lease; and the bill stated, that the rent of 731. 10s., specified in the agreement, was inserted by mistake, or with some unfair view; the real agreement being, that the plaintiff was to have the lease upon the same rent, as the defendant paid to his lessor, and that he the defendant did not pay more than 6ol. The defendant in his answer admitted, he might have said, that the plaintiff should have the lease upon the same terms, not meaning the same rent, but upon terms on the whole equally advantageous; insisting, that as he had laid out a great deal of money, the plaintiff would upon the whole have as good a bargain. The plaintiff offered parol evidence to prove, that he was to have it on the same terms as the defendant had it, and to shew, that nothing could be meant by the expression, but the same rent; nothing being in discussion between them, but the amount of the rent. The question was, whether this evidence was admissible. The Master of the Rolls, in giving judgment, said, that "by the rule of law, independent of the statute of frauds, parol evidence could not be received to contradict a written agreement. To admit it for the purpose of proving, that the written instrument does not contain the real agreement, would be the same as receiving it for every purpose. It was for the purpose of shutting out that inquiry, that the rule of law was adopted. Though the written instrument does not contain the terms, it must in contemplation of law be taken to contain the agreement, as furnishing better evidence than any that parol can supply. If this had been a bill brought by the defendant for a specific performance," added the Master of the Rolls, "I should have been bound by the decisions to admit the parol evidence, and to refuse a specific performance. But this evidence is offered, not for the purpose of resisting, but of obtaining a decree; first, to falsify the written agreement, and then to substitute in its place a parol agreement to be executed by the court. Thinking as I do, that the statute has been

already

already too much broken in upon by supposed equitable exceptions, I shall not go farther in receiving and giving effect to parol evidence, than I am forced by precedent. There is no case, in which the court has gone the length now desired. But two cases (1) are produced, in which, it is said, there is an intimation from Lord Hardwicke to that effect. Upon this, it might be sufficient to say, it was not decided. But it is evident from the manner, in which that great Judge qualifies his own doubts, that he thought it impossible to maintain such a proposition, as the plaintiff is driven to maintain. In Walker v. Walker it is to be observed, first, that the parol evidence was not offered for the purpose of contradicting any thing in the written agreement. It was admitted, that, as far as it went, it stated the true meaning; but it was contended by the defendant, that there was another collateral agreement, which the plaintiff ought to execute, before he could have the benefit of the written agreement; it was evidence, too, offered in defence, to resist a decree. The evidence offered in this case," added the Master of the Rolls, concluding his judgment, "is to vary an agreement in a material part; and having varied it, to procure it to be executed in another form. There is nothing to shew, that this ought to be done." The proposed evidence was accordingly rejected; and the bill dismissed, without costs.

Where a written agreement has been varied by parol, and there has been such a part-performance of the parol variation, as would have procured it to be specifically executed, provided it had formed a part of the original agreement, the plaintiff in that case will be admitted to give evidence of such subsequent unwritten variation. As to what constitutes a part-performance, Lord Redesdale, in a very late case (2), has laid down the following rule, that

(1) Walker v. Walker, 2 Atk. 98. Joynes v. Statham, 3 Atk. 388.

(2) Clinan v. Cooke, 1 Schoal. & Lef. 41. 14 Ves. jun. 328.

"nothing

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