I have no doubt upon «the testimony, that the complainant represented to the defendant that the lands which he proposed to convey to the latter, were situated in Ionia county, Michigan. And I am satisfied that the agreement between the parties which they employed Mr. Mesick to draw up, was for the exchange of lands in Ionia county, for She defendant’s lands in this state,
I do not believe that there was any fraudulent misrepresentation on the part of the complainant; and when the deeds were left with Mesick to enable him to draw the agreement, probably neither the parties, or Mesick, were aware that Ionia Land District and Ionia county, were not one and the same thing. The same mutual ignorance probably prevailed when the contract was signed.
The question is, whether the defendant shall be compelled specifically to perform an agreement thus made.
In the absence of fraud, a preliminary objection is made, that the answer does not allege any surprise or mistake.
It is true, the answer does not make use of those words. It however states the complainant’s representation that the lands were in the county of Ionia, that the defendant bargained for such lands, and that Mr. Mesick was to have drawn up the Contract accordingly. The answer then shows the error in the contract, and that the lands are in the counties of Ingham and Gratiot.
This suffices to present the issues of mistake and misrepresentation.
In order to induce this court to decree a specific performance, the contract must be free from fraud, misrepresentation or surprise. (Seymour v. Delancey, 3 Cowen, 445.)
The party defending against a suit for such performance, need not prove that the misrepresentation was wilful or fraudulent But it must be in some matter of substance, which affects the value of the estate sold, and which was unknown to the purchaser.
The locality of the land is usually one of the most important considerations with a purchaser. This fact constitutes one of
In this case, it is clear that the defendant intended to contract for lands in the county of Ionia, and not elsewhere. He contracted on the representation that the lands were in that county. It turns out, that the lands are not in Ionia county, and it would be inequitable to compel him to receive them.
There is another principle upon which this defence may be sustained.
The defendant, in answer to a bill for a specific performance, may prove by parol evidence, that the written instrument sought to be enforced against him, does not correctly and truly express the agreement of the parties, but that through fraud, surprise or mistake, there is some material omission, insertion or variation, contrary to the intention or understanding of the parties. (2 Story’s Eq. § 769, 770, and note ; 1 Sugd. on Tend. Ch. 3, § 8, p. 224, &c., 6th Am. ed.; 1 Phill. Ev. 4 Am. ed. 569. And see The Marquis Townshend v. Stangroom, 6 Ves. 328; Ramsbottom v. Gosden, 1 V. & B. 165 ; Gillespie v. Moon, 2 J. C. R. 585 ; Rich v. Jackson, 4 Bro. C. C. 514; S. C., 6 Ves. 334, note c.)
I will mention a few of the cases in which this principle has been applied.
In Joynes v. Staihan, 3 Atk. 388, the defendant was permitted to prove that the agreement between the parties was that the rent was to be paid clear of taxes ; which clause was omitted in the agreement as written and signed.
Clark v. Grant, 14 Ves. 519, 524, was a case where performance was refused upon a parol variation of the written contract.
In Winch v. Winchester, 1 V. & B. 375, parol evidence of the auctioneer, warranting the quality of land, was received in opposition to a specific performance of a contract which expressed the quantity to be forty-one acres, more or less.
In Clainan v. Cook, 1 Sch. &. Lef. 22, 38, 39, Lord Redesdale fully approved and admirably vindicated the principle, as appli
And Sir William Grant, Master of the Rolls, pursued the same course in Woolam v. Hearne, 7 Ves. 211, at the same time indicating the established rule in behalf of defendants.
I think the defendant here is justified in saying that the instrument which he signed, did not contain the agreement which he entered into, and that he is not bound to perform it.
The bill must therefore be dismissed, but without costs. The defendant has failed in showing the fraud which he set up in his answer, and succeeds on a ground which is not inconsistent with good faith on the part of the complainant in making the contract.
Decree accordingly.