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1802. to the fact, whether the rent agreed on by the memorandum LAWRENSON

was the best improved rent, there was evidence on both v. sides. BUTLER

Upon the opening of the case by Mr. Saurin for the plaintiff, a difficulty, being suggested whether it was possible for him to obtain a lease according to the terms of the agreement for want of the consent of the trustees.

Mr. Saurin offered to take a lease with a proviso that it should be void as against issue male, and contended that the defendant should at least be obliged to execute such a lease ; but the offer was rejected by the defendant's counsel.

Mr. Saurin and Mr. Burne for the plaintiff. There are two questions in the case ; first, whether if the settlement were out of the way, the court would decree a specific execution ? and secondly, what difference the settlement makes in the case? 1. The general rule is, that wherever the remedy at law cannot be complete, equity will give a specific execution, even in cases where no action at law can be maintained. Cannel v. Buckle, 2 P. Wms. 244. Now, though the vendor might have complete remedy in the shape of damages, for the breach of contract by the vendee, (inasmuch as the consideration to him was money, and one sum of money is as good as another) yet the vendee cannot have compensation made to him, in damages, for the loss of his bargain. Then the only grounds on which the relief sought by the plaintiff can be denied, are fraud, circumvention, or some undue practices on the part of the plaintiff ; but there is no circumstance of fraud in the case ; the concealment of the transaction from the defendant's father was not the act of the plaintiff, but the suggestion of the defendant himself; there is evidence that the rent was a fair one ; at least certainly between the




rent and the fine the full value of the lands was to be given. And even if it were otherwise, mere inadequacy of price (if not excessive) is no ground to impeach an agreement, unless there be some concealment of the true value from the party. Then, 2dly. What difference does the settlement make in the case ? Certainly, it puts it out of the defendant's power to give a valid lease to the extent of his agreement, without the consent of the trustees: but that is an injury sustained by the plaintiff, and of which it is not competent for the defendant to avail himself, and if the plaintiff does notwithstanding make his election to abide by the agreement, the defendant ought not to be allowed to say that, because he cannot grant the lease agreed upon, he will not grant any lease whatever. Admitting that the agreement was executed under a mistake, that mistake has not been at all injurious to the defendant, but only to the plaintiff, and when he calls on the defendant to relieve him from the consequences of the mistake as far as the law will allow, the defendant cannot resist him.

Mr. O'Grady for the defendant. If a lease were to be executed pursuant to this agreement, it would be quite contrary to the leasing power in the settlement, and equity will not decree a specific performance of such an agreement. Crawford v. Oliver, Ridgeway's Cases in Parliament, (Ireland) 315; Stratford v. Lord Aldborough, ibid. 281. In order to render an agreement of this kind binding in equity, there must be a mutuality, that is to say, each party must have an equal right and power to compel a performance; but there was no such mutuality in this case ; for supposing that the agreement had been more beneficial to the defendant than to the plaintiff, and that he had filed a bill to enforce it, he could not have succeeded without making out a good title in himself to execute the lease, which he could not have done, by reason of the restriction in the settlement, of which




restriction plaintiff was apprized at the time of the agreement. But it is admitted that fraud would deprive a party of his right to relief here, and there are abundant circumstances of fraud in this case : the concealment from the defendant's father the scheme of taking a fine, the advantage taken of the defendant's embarrassed situation.

December 8

Mr. Burne in reply. As to the want of mutuality, equity does not always consider it a necessary ingredient. Hatton v. Grey, 2 Chan. Cas. 164; 1 Eq. Abr. 21. S. C.; Lowther v. Carill, 1 Ver. 221. And the want of mutuality in this case is caused by the defendant himself, who, knowing of his disability to make such a lease, yet entered into the agreement.


I confess I have no conception that a court of equity ought to decree a specific performance in a case where nothing has been done in pursuance of the agreement, except where both parties had by the agreement a right to compel a specific performance according to the advantage which it might be supposed that they were to derive from it; because otherwise it would follow that the court would decree a specific performance where the party called upon to perform might be in this situation, that if the agreement was disadvantageous to him he would be liable to the performance, and yet if advantageous to him he could not compel a per. formance. This is not equity, as it seems to me. If indeed there was a concealment, or an ignorance of the facts on the one part, and that thereby the other party was led into a situation from whence he could not be extricated, then he would have a right to have the agreement executed cy pres; that is, a new agreement is to be made between the parties. Now, it is not, and could not be contended in this case, that Mr. Butler could have a right to enforce this agreement, for he could enforce it only according to the

terms of the agreement, and these he cannot perform on his 1802. part for want of the trustees' consent, and the court could hawn not say to Mr. Lawrenson, " you shall forego a part of the v.

BUTLER " agreement.”


If Mr. Lawrenson, on the faith of this agreement, had put himself into a situation from which he could not extricate himself, and was therefore willing to forego a part of his agreement, that would be a circumstance to induce a court of equity to give relief :(a) but here, there is an agreement entered into with the perfect knowledge of both parties that the lease promised was contrary to the provisions in the settlement under which Mr. Butler holds : the parties entered in a scheme for the purpose of defeating the provisions of that settlement, and Mr. Lawrenson makes himself privy to the transaction. It is manifest that a fine was talked of, and then a contrivance for a fine, and a very awkward one, was resorted to: it is also manifest that for the purpose of making a lease under the power, the consent

(a) In the course of the argument, his lordship alluded to a case of Lord Bolingbroke, which as to this point we collected to be as follows : The incumbent of a living had contracted with the present Lord B. for the purchase of the advowson, and on the faith of the contract had built a much better house in the glebe than he would otherwise have done. The late Lord B, was then living, and the present Lord only tenant in tail in remainder, and the contract was made with a perfect understanding how the parties were situated. The late Lord B. was not in a state of mind to do any act himself, but the legal estate was vested in a Mr. Cator during his Lordship’s life, and therefore he was competent to make a tenant to the precipe. Cator refused to do so, consequently the present Lord B. could make no sufficient conveyance. Lord THURLOW thought that the gentleman who had made the contract, and who, upon the faith of it, had built a good house on the glebe, should get the utmostLord B. could give him, and directed that his Lordship should convey a base fee by levying a fine with a covenant to suffer a recovery whenever he should be enabled so to do by the death of the tenant for life.

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of other persons was known to be necessary: therefore here is an agreement which was executed by these parties under the supposition that it was mutually binding: it is impossible to read the evidence in the cause without perceiving that Mr. Butler considered Mr. Lawrenson as much bound as he himself was.

It is conceded now that Lawrenson was not bound, but it is contended that Butler was ; now, was that the intention of the parties in the transaction? I think clearly not; and therefore, it is an agreement founded on a mistake ; an agreement entered into by Mr. Butler under a supposition that he was capable of enforcing it as much as Mr. Lawrenson was. It is said that courts of equity have decreed performance in cases where one party only was bound by the agreement: I believe it would be difficult to find a case where that has been done, particularly a late case. In the case of Hatton v Gray, 2 Ch. Cas, it was considered as sufficient that the agreement should be signed by the party against whom the performance was sought, because such are the words of the statute of frauds : now, such certainly is the import, that no agreement shall be in force but when it is signed by the party to be charged; but the statute does not say that every agreement so signed shall be enforced; the statute is in the negative. To give it this construction would, as I have heard it urged, make the statute really a statute of frauds, for it would enable any person who had procured another to sign an agreement to make it depend on his own will and pleasure whether it should be an agree, ment or not.(a)

(a) Vid. Bromley v. Jeffries, 2 Vern. 415, where one of the grounds for refusing specific performance is stated to have been the want of mutuality: and in Armiger v. Clarke, Bunb. 111, it is stated to have been a principal ground for refusing specific per. formance in that case. It was also made a ground of argument

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